WORLD TRADE ORGANIZATION  
ORGANISATION MONDIALE DU COMMERCE  
ORGANIZACIÓN MUNDIAL DEL COMERCIO   
IP/N/1/USA/E/2 
17 August 2012 
 
 (12-4477) 
Council for Trade-Related Aspects  of Intellectual Property Rights Original:   English/ 
 anglais/  inglés 
 
 
MAIN DEDICATED INTELLECTUAL PR OPERTY LAWS AND REGULATIONS 
NOTIFIED UNDER ARTICLE 63.2 OF THE AGREEMENT 
 
UNITED STATES 
 
 The present document reproduces the text
1 of the Regulation on the Disclosure of Information 
for Certain Intellectual Property Rights Enforced  at the Border, which entered into force on 
24 April 2012, as notified by the United States on 20 June 2012 under Article 63.2 of the Agreement 
(see document IP/N/1/USA/5). 
 
Conseil des aspects des droits de propriété 
intellectuelle qui touchent au commerce  
 
PRINCIPALES LOIS ET RÉGLEMENTATIONS CONSACRÉES À 
LA PROPRIÉTÉ INTELLECTUELLE NOTIFIÉES AU TITRE 
DE L'ARTICLE 63:2 DE L'ACCORD 
 
ÉTATS-UNIS 
 
 Le présent document contient le texte
1 du Règlement sur la divul gation de renseignements 
concernant certains droits de propr iété intellectuelle appliqués à la frontière, qui est entré en vigueur 
le 24 avril 2012, et a été notifié par les États-Unis le 20 juin 2012 au titre de l'article 63:2 de l'Accord 
(voir le document IP/N/1/USA/5). 
 
Consejo de los Aspectos de los Derechos de Propiedad 
Intelectual relacionados con el Comercio 
  
PRINCIPALES LEYES Y REGLAMENTOS DEDICADOS A LA 
PROPIEDAD INTELECTUAL NOTIFICADOS EN VIRTUD 
DEL PÁRRAFO 2 DEL ARTÍCULO 63 DEL ACUERDO 
 
ESTADOS UNIDOS 
 
 En el presente documento se reproduce el texto
1 del Reglamento sobre la divulgación de 
información para proteger determin ados derechos de propiedad intelectual cuya observancia se exige 
en la frontera, que entró en vigor el 24 de abril de 2012, notificado por los Estados Unidos el 20 de 
junio de 2012 en virtud de lo dispuesto en el párrafo 2 del artículo 63 del Acuerdo (véase el 
documento IP/N/1/USA/5). 
                                                      
1 In English only./En anglais seulement./En inglés solamente.     
   IP/N/1/USA/E/2 
 Page 3 
 
 
  DEPARTMENT OF 
HOMELAND  SECURITY 
 
U.S. Customs and Border 
Protection 
 
DEPARTMENT OF THE 
TREASURY 
 
19 CFR Parts 133 and 151 
 
[USCBP–2012–0011; CBP Dec. 
12–10] 
 
RIN 1515–AD87 
 
Disclosure of Information for 
Certain Intellectual Property 
Rights Enforced at the Border  
AGENCIES: U.S. Customs and 
Border Protection, Department of 
Homeland Security; Department of 
the Treasury. 
ACTION: Interim rule; 
solicitation of comments. 
 
SUMMARY: This document 
amends, on an interim basis, the 
U.S. Customs and Border 
Protection (CBP) regulations 
pertaining to importations of 
merchandise bearing recorded 
trademarks or recorded trade 
names. The interim amendments, 
effective upon publication in the 
Federal Register , allow CBP, 
subject to limitations, to disclose 
to an intellectual property right 
holder information appearing on 
merchandise or its retail packaging 
that may comprise information 
otherwise protected by the Trade 
Secrets Act, for the purpose of 
assisting CBP in determining 
whether the merchandise bears a 
counterfeit mark. Such 
information will be provided to the 
right holder in the form of 
photographs or a sample of the 
goods and/or their retail packaging 
in their condition as presented to 
CBP for examination and 
alphanumeric codes appearing on the goods. The information will 
include, but not be limited to, 
serial numbers, universal product 
codes, and stock keeping unit 
(SKU) numbers appearing on the 
imported merchandise and its 
retail packaging, whether in 
alphanumeric or other formats. 
These changes provide a pre-
seizure procedure for disclosing information about imported 
merchandise suspected of bearing 
a counterfeit mark for the limited 
purpose of obtaining the right 
holder's assistance in determining 
whether the mark is counterfeit or 
not. 
DATES: Effective April 24, 2012; 
comments must be received on or 
before June 25, 2012. 
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 2012–0011.  • Mail: Trade and Commercial 
Regulations Branch, Office of 
International Trade, Regulations 
and Rulings, U.S. Customs and 
Border Protection, 799 9th Street 
NW. (Mint Annex), Washington, 
DC 20229–1179. 
 Instructions: All submissions 
received must include the agency 
name and docket number for this 
interim 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 
rulemaking process, see the 
"Public Participation'' heading of 
the SUPPLEMENTARY 
INFORMATION section of this 
document. 
 Docket: For access to the 
docket to read background 
documents or comments received, 
go to http://www.regulations.gov. 
Submitted comments may also be 
inspected during regular business 
days between the hours of 9 a.m. 
and 4:30 p.m. at the Trade and 
Commercial Regulations Branch, 
Office of International Trade, 
Regulations and Rulings, U.S. 
Customs and Border Protection, 799 9th Street NW., 5
th 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: 
Paul Pizzeck, Intellectual Property 
Rights Branch, Regulations and Rulings, Office of International 
Trade, (202) 325–0020. 
 
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 
interim rule. CBP also invites 
comments that relate to the 
economic, environmental, or 
federalism effects that might result 
from this rule. If appropriate to a 
specific comment, the commenter 
should reference the specific portion of the rule, explain the 
reason for any recommended 
change, and in clude data, 
information, or authority that 
support such recommended 
change. 
 
Background 
 
Purpose of the Interim 
Amendments 
 
 CBP is responsible for border 
enforcement of intellectual 
property rights laws and 
regulations. One of the primary 
purposes of CBP's efforts to 
interdict counterfeit imported 
goods is to protect the public from 
unsafe and substandard products, 
which, in some cases, can be a 
threat to public health and safety, 
and also a threat to the national 
security. In particular, counterfeit 
integrated circuits and electronic 
components can find their way 
into critical manufacturing, 
military, infrastructure, and 
consumer product applications. In 
fact, inquiries conducted by 
Congress and the Department of 
Defense (DoD) have revealed that 
counterfeit electronic components, 
including counterfeit integrated 
circuits, have entered military and government supply chains, posing 
a serious threat to  our military and 
government personnel and 
infrastructure. 
 Due to the development of 
sophisticated techniques of some 
counterfeiters and the highly 
technical nature of some imported 
goods, it has become increasingly 
difficult for CBP to determine IP/N/1/USA/E/2 
Page 4  
 
  whether some goods suspected of 
bearing counterfeit marks in fact 
bear counterfeit marks. The 
current regulation pertaining to 
goods bearing counterfeit marks 
does not provide a procedure for 
disclosing information to right 
holders to assist CBP in its efforts 
to identify goods bearing 
infringing marks, prior to CBP's 
making a determination to seize. 
 In this document, CBP is 
making several changes to 
subpart C of part 133 of the CBP 
regulations (19 CFR part 133) 
regarding the detention of suspect 
merchandise and the disclosure of 
information to right holders during 
detention of goods bearing potentially counterfeit marks and 
after seizure of goods bearing 
counterfeit marks. These changes, 
made on an interim basis and 
effective on the date of their 
publication in the Federal 
Register , include a clarifying 
revision of the current regulation's 
definition of "counterfeit 
trademark'' and an addition of a 
30-day detention period relative to 
goods suspected of bearing 
counterfeit marks. These changes 
will enhance CBP's enforcement 
capability against increasingly 
sophisticated counterfeit products 
that threaten the public health and 
safety and national security. 
 
The Trade Secrets Act and 
Disclosure Under the Current 
Regulation 
 
 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 (also 
referred to collectively as 
"protected 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.'' Case law interpreting 
the statute states that the Act 
"appears to cover practically any 
commercial or financial data 
collected by any Federal employee from any source'' and that the 
"comprehensive catalogue of 
items'' listed in the Act 
"accomplishes essentially the same 
thing as if it had simply referred to 
'all officially collected commercial 
information' or 'all business and 
financial data received.' '' See CNA 
Fin. Corp. v. Donovan, 830 F.2d 
1132, 1140 (D.C. Cir. 1987). 
 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 protection afforded by the 
Trade Secrets Act, however, must 
be balanced against the important 
and legitimate interests of 
government. The Trade Secrets 
Act permits those covered by the 
Act to disclose confidential 
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). 
 
The National Defense 
Authorization Act for Fiscal 
Year 2012 
 
 Section 818(g) of the National 
Defense Authorization Act for 
Fiscal Year 2012 (NDAA) (Pub. 
L. 112–81) provides: 
 
 If United States Customs and 
Border Protection suspects a 
product of being imported in 
violation of section 42 of the Lanham Act, and subject to any 
applicable bonding requirements, 
the Secretary of the Treasury may 
share information appearing on, 
and unredacted samples of, 
products and their packaging and 
labels, or photographs of such 
products, packaging, and labels, 
with the rightholders of the 
trademarks suspected of being copied or simulated for purposes 
of determining whether the 
products are prohibited from 
importation pursuant to such 
section. 
 
 The NDAA enhances CBP's 
capability to enforce laws 
protecting marks by authorizing 
the agency to disclose certain 
information to right holders to 
assist CBP officers in determining 
whether suspect me rchandise bears 
counterfeit marks. 
 
Further Statutory Analysis 
Concerning Disclosure of 
Commercial Information 
  Under the NDAA, CBP is 
authorized by law to make certain 
disclosures. One reading of the 
language of the NDAA, however, 
is that disclosure is limited to 
trademarks and does not include 
other marks noted under the 
Lanham Act (certification, 
collective, and service marks). 
Moreover, some have suggested 
that the legislative history of the 
Act indicates that certain 
legislators intended that the 
exception to the Trade Secrets Act 
created by the NDAA is to apply 
only to military sales. 
 Consequently, CBP, in 
publishing this interim rule, is 
exercising regulatory authority to 
remove any ambiguity about 
CBP's authority to disclose 
information with regard to 
certification, collective, and 
service marks, as well as 
trademarks, and to further clarify 
that the disclosure authority 
extends to all imports and not just 
those associated with military 
sales. 
 As noted above, the Secretary 
of the Treasury (the Secretary) has 
authority to disclose information 
otherwise protected under the 
Trade Secrets Act when such 
disclosures are authorized by law. Disclosures meeting the 
"authorized by law'' standard of 
the Trade Secrets Act include 
those made under regulations that 
are (1) in compliance with the 
provisions of the Administrative 
Procedure Act (5 U.S.C. 551 et 
seq.) and (2) based on a valid 
statute. Regarding CBP's statutory 
authority to disclose certain  IP/N/1/USA/E/2 
 Page 5 
 
 
  importation information to right 
holders, various provisions in 
titles 15 and 19 of the United 
States Code (U.S.C.) authorize 
CBP to promulgate  regulations to 
enforce prohibitions against the 
importation of merchandise that 
infringes intellectual property 
rights. 
 Section 42 of the Lanham Act 
(15 U.S.C. 1124) prohibits the 
importation of merchandise 
bearing a mark which copies or 
simulates a registered mark. In 
order to aid CBP in enforcing this 
prohibition, section 42 provides 
for the recordation of registered 
marks under such regulations as 
the Secretary of the Treasury shall prescribe. Sections 526(e) and 
595a(c) of the Tariff Act of 1930, 
as amended (19 U.S.C. 1526(e), 
and 19 U.S.C. 1595a(c)), prohibit 
the importation of merchandise 
bearing a counterfeit mark and the 
introduction or attempted 
introduction into the United States 
of merchandise or packaging in 
which, inter alia, trademark or 
trade name protection violations 
are involved, including, but not 
limited to violations of 
sections 1124, 1125 and 1127 of 
Title 15 (sections 42, 32 and 45 of 
the Lanham Act). Moreover, 
section 526(e) of the Tariff Act of 
1930, as amended, (19 U.S.C. 
1526(e)) requires CBP to notify 
the owner of the trademark when 
merchandise bearing a counterfeit 
mark within the meaning of 
section 1127 of Title 15 and 
imported in violation of 
section 1124 of Title 15 is seized. 
Section 624 of the Tariff Act of 
1930, as amended (19 U.S.C. 
1624), authorizes the Secretary of 
the Treasury to promulgate 
regulations to carry out the 
provisions of the Tariff Act of 
1930, as amended.  Collectively, 
these statutes authorize the 
Secretary of the Treasury, in 
instances where identification of suspected violative merchandise 
requires the assistance of right 
holders for the specific and limited 
purpose of determining whether 
imported merchandise bears a 
counterfeit mark, to provide for 
the disclosure of certain 
information to right holders upon 
importation.  The interim rule is intended to 
support the statutory enforcement 
scheme discussed above and to 
allow CBP officers, without 
violating the Trade Secrets Act, to 
disclose information that might 
reveal otherwise confidential 
commercial or financial 
information in order to assist CBP 
in identifying merchandise bearing 
counterfeit marks at the time of 
detention. 
 
Notice Provision To Prevent 
Economic Harm to Legitimate 
Importers 
 
 In addition, CBP  is putting in 
place a procedure that provides the importer the opportunity to 
demonstrate to CBP, within seven 
(7) days (exclusive of weekends 
and holidays) of a notice of 
detention, that the article in 
question does not bear a 
counterfeit mark, before releasing 
information to the right holder. 
Only absent such a demonstration 
by the importer will information, 
images, or samples be shared with 
the right holder. This procedural 
safeguard is intended to achieve 
the policy goals of the NDAA in a 
manner consistent with 
maintaining the flow of 
information to the government, 
fostering competition, keeping 
prices low, and maintaining 
consumer choice.  Information that is covered by 
the Trade Secrets Act and obtained 
from an importer, including the 
importer's name and place of 
business, manufacturer's identity, 
supply chain, and other 
confidential commercial or 
financial information, if disclosed, 
could provide insights into the 
importer's business operations, 
processes, style of work, and 
income, all inuring to the 
importer's competitive 
disadvantage. For example, 
product coding, such as serial numbers, and SKUs often 
incorporates information about 
where and when a product was 
manufactured, as well as other 
information that could allow one 
to identify information about the 
manufacture of the product. It is 
likewise possible that such 
information could directly or 
indirectly reveal the identity of wholesalers, exporters, or other 
parties in the importer's supply 
chain and the timing and pricing of 
the transactions involving those 
entities. Such confidential 
commercial or financial 
information, if not properly 
protected, could be used by 
competitors to an importer's 
economic disadvantage, 
potentially resulting in reduced 
competition and consumer choice 
with attendant increases in prices. 
 
Interim Amendments Concerning 
Pre-Seizure Disclosure of 
Information 
 
 This document is amending the CBP regulations to allow CBP 
to provide right holders, for the 
limited purpose of assisting CBP 
in making infringement 
determinations, with any 
information appearing on 
merchandise and/or its retail 
packaging, or a sample of the 
merchandise including its retail 
packaging, when CBP reasonably 
suspects that such merchandise 
and/or packaging may bear a 
counterfeit mark (see 
§ 133.21(b)(1) of this rule). This 
disclosure of information, which 
includes images (photographs) or 
samples, as a ppropriate, could 
potentially disclose confidential 
commercial or financial 
information otherwise protected 
under the Trade Secrets Act. The 
interim regulation also includes a 
procedure that allows an importer, 
prior to release of the information, 
the opportunity to establish, within 
seven (7) days (excluding 
weekends and holidays) of a notice 
of detention, that the marks are not 
counterfeit. Only absent such a 
demonstration by the importer will 
the disclosure be made to the right 
holder. 
 In conjunction with the interim 
rule's procedure outlined above, 
CBP is adding to the regulation a 30-day period (and an extension, if 
requested by the importer for good 
cause) to commence upon 
presentation of the goods for 
examination, within which a 
determination with respect to 
admissibility will be made (see 
§ 133.21(b) of this rule). Under the 
interim regulation, CBP will issue 
the notice of detention within five IP/N/1/USA/E/2 
Page 6  
 
  days of its detention decision, 
starting the seven-day period 
within which the importer may 
demonstrate that the goods do not 
bear a counterfeit mark. Only if 
such demonstrati on is untimely or 
insufficient will CBP release 
information to the right holder. 
 In brief summation, this 
change to the regulations 
concerning counterfeit marks, in 
principal part, allows CBP, prior to 
seizure, to release to right holders 
information appearing on goods 
(and/or their retail packaging), and 
on images and samples, that are 
not redacted, i.e., images showing 
the merchandise (and/or its retail 
packaging) in its condition as presented for examination and 
samples (and/or its retail 
packaging) in their condition as so 
presented. This allows the right 
holder to assist CBP in its 
enforcement effort to prevent the 
entry of goods bearing counterfeit 
marks. However,  in certain 
circumstances, DHS criminal 
investigators may provide right 
holders such information or 
samples without notifying the 
importer, for example to obtain 
from the right holder evidence that 
will assist the investigators in 
demonstrating probable cause 
when they seek a judicial order in 
the course of a criminal or national 
security investigation. 
 
Other Interim Amendments To 
Clarify and Maintain Consistency 
With the Current Regulations 
 
 As mentioned previously, CBP 
is also making a clarifying 
amendment to the definition of 
"counterfeit trademark.'' The 
amended definition of "counterfeit 
mark'' uses the term "mark'' 
instead of "trademark'' (see 
§ 133.21(a) of this rule).  
 In addition, CBP is amending 
the regulations pertaining to goods 
bearing copying or simulating marks and restricted gray market 
goods to correct an  inconsistency 
in the regulatory scheme for such 
goods (19 CFR 133.22(f)  and 
133.23(f), respectively). The 30-
day detention period for these 
goods is set forth in § 133.25 of 
the CBP regulations, and this 
procedure provides for extension 
of the detention period applicable to these goods upon good cause 
shown. Therefore, CBP is 
removing from §§ 133.22(f) and 
133.23(f) inconsistent language 
that appears to restrict the 
respective detention periods to 
only 30 days.  
 Lastly, CBP is amending the 
provisions of 19 CFR 151.16(a) 
regarding detention of 
merchandise to make them 
consistent with the interim 
regulations in this rulemaking. The 
regulations pertaining to detention 
of merchandise exclude from their 
applicability imported articles 
suspected of being infringing 
copies or phonorecords, imported 
goods bearing marks which are confusingly similar to recorded 
trademarks, and imported 
restricted gray market 
merchandise. The interim 
amendment to section 151.16(a) 
excludes imports of goods 
suspected of bearing counterfeit 
marks from the applicability of the 
regulations pertaining to detention 
of merchandise. 
 
Inapplicability of Notice and 
Delayed Effective Date 
Requirements 
 
 As explained previously in this 
document ( see "Purpose of the 
Interim Amendments'' subsection 
in the Background section), CBP 
is responsible for enforcement of 
intellectual property rights laws 
and regulations at the border. An 
important goal of CBP efforts to 
interdict counterfeit imported 
goods is to protect the public from 
unsafe and substandard counterfeit 
products. In additi on, counterfeit 
goods present a threat to national 
security and our critical 
infrastructure. Counterfeit 
integrated circuits and electronic 
components can be used in critical 
manufacturing, military, 
infrastructure, and consumer 
product applications. Inquiries conducted by Congress and the 
DoD have revealed  that counterfeit 
electronic components, including 
counterfeit integr ated circuits, 
have entered military and 
government supply chains, posing 
a serious threat to  our military and 
government personnel and 
infrastructure. Moreover, 
interdiction of counterfeit goods has been made increasingly 
difficult due to the development of 
sophisticated techniques used by 
some counterfeiters and the highly 
technical nature of some imported 
goods. 
 Because this rule addresses an 
immediate need to address without 
delay vulnerabilities in our 
military and government 
procurement processes, as well as 
an immediate need to interdict 
goods bearing counterfeit marks 
that pose health and safety risks to 
the American public, CBP has 
determined that it would be 
contrary to the public interest to 
delay the effective date of this 
rule. Therefore, CBP has determined that in accordance with 
the sections 553(b)(B) and 553(c) 
of the Administrative Procedure 
Act (5 U.S.C 553), good cause 
exists to dispense with the prior 
comment requirement and delayed 
effective date requirement. 
Subsection 818(g) of the NDAA 
was effective upon enactment, but 
the authority it provides the 
Secretary is discretionary and not 
mandatory. Accordingly, although 
some may interpret the statute to 
allow the Secretary to exercise his 
discretionary authority without 
amending CBP's existing 
regulations, CBP believes that 
amending the existing, more 
restrictive regulations is consistent 
with the requirements of the 
Administrative Procedure Act and 
will eliminate any legal ambiguity. 
The interim regulations also 
promote transparency and provide 
an important opportunity to gather 
feedback and input from 
stakeholders regarding 
implementation of § 818(g) of the 
NDAA. 
 
Executive Orders 12866 and 
13563 
 
 Executive Orders 13563 and 
12866 direct agencies to assess costs and benefits of available 
regulatory alternatives and, if 
regulation is necessary, to select 
regulatory approaches that 
maximize net benefits (including 
potential economic, 
environmental, p ublic health and 
safety effects, distributive impacts, 
and equity). Executive 
Order 13563 emphasizes the  IP/N/1/USA/E/2 
 Page 7 
 
 
  importance of quantifying both 
costs and benefits, of reducing 
costs, of harmonizing rules, and of 
promoting flexibility. This rule has 
been designated a "significant 
regulatory action'' although not 
economically significant, under 
section 3(f) of Executive 
Order 12866. Accordingly, the 
rule has been reviewed by the 
Office of Management and 
Budget. 
 
Regulatory Flexibility Act 
 
 Because a notice of proposed 
rulemaking is not required under 
section 553(b)(3)(B) of the APA 
for the reasons described in the Inapplicability of Notice and 
Delayed Effective Date 
Requirements section of this 
document, the provisions of the 
Regulatory Flexibility Act, as 
amended (5 U.S.C. 601 et seq. ), do 
not apply to this rulemaking. 
Accordingly, this interim rule is 
not subject to the regulatory 
analysis or other requirements of 5 
U.S.C. 603 and 604. 
 
Signing Authority 
 
 This rulemaking is being 
issued in accordance with 
19 CFR 0.1(a)(1), pertaining to the 
authority of the Secretary of the 
Treasury (or that of his or her 
delegate) to approve regulations 
concerning trademark 
enforcement. 
 
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 Notic es 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 Notices of Detention for OMB 
control number 1651–0073 are as 
follows: 
 Number of Respondents: 
1,350.  Number of Responses: 1,350. 
 Time per Response: 2 hours. 
 Total Annual Burden Hours: 
2,700. 
 There is no change in burden 
hours under this collection with 
this rule. 
 
List of Subjects 
 
19 CFR Part 133 
 
 Copying or simulating 
trademarks, Copyrights, 
Counterfeit trademarks, Customs 
duties and inspection, Detentions, 
Reporting and recordkeeping 
requirements, Restricted 
merchandise, Seizures and forfeitures, Trademarks, Trade 
names. 
 
19 CFR Part 151 
 
 Customs duties and inspection, 
Examination, Im ports, Penalties, 
Reporting and recordkeeping 
requirements, Sampling and 
testing. 
 
Amendments to the CBP 
Regulations 
 
 For the reasons stated above in 
the preamble, CBP is amending 
parts 133 and 151 of title 19 of the 
Code of Federal Regulations (19 
CFR parts 133 and 151) to read as 
follows: 
 
PART 133—TRADEMARKS, 
TRADE NAMES, AND 
COPYRIGHTS 
 
■ 1. The general authority citation 
for part 133 and the specific 
authority citation for § 133.21 
through 133.25 are revised, to read 
as follows: 
 
 Authority: 15 U.S.C. 1124, 
1125, 1127; 17 U.S.C. 101, 601, 
602, 603; 19 U.S.C. 66, 1202, 
1499, 1526, 1624; 31 U.S.C. 9701;   
* * * * * 
 
Sections 133.21 through 133.25 
also issued under 18 U.S.C. 1905; 
Sec. 818(g), Pub. L.112–81. 
 
* * * * * 
■ 2. The heading for subpart C is 
revised to read as follows:  Subpart C—Importations 
Bearing Recorded Marks or 
Trade Names 
 
■ 3. Section 133.21 is revised to 
read as follows: 
 
§ 133.21 Articles suspected of 
bearing counterfeit marks. 
 
 (a) Counterfeit mark defined. 
A "counterfeit mark'' is a spurious 
mark that is identical with, or 
substantially indistinguishable 
from, a mark registered on the 
Principal Register of the U.S. 
Patent and Trademark Office. 
 (b) Detention. CBP may detain 
any article of domestic or foreign manufacture imported into the 
United States that bears a mark 
suspected of being a counterfeit 
version of a mark that is registered 
with the U.S. Patent and 
Trademark Office and is recorded 
with CBP pursuant to subpart A of 
this part. The detention will be for 
a period of up to thirty days from 
the date on which the merchandise 
is presented for examination. The 
30-day time period may be 
extended for up to an additional 
thirty days for good cause shown 
by the importer. In accordance 
with 19 U.S.C. 1499, if after the 
detention period and any 
authorized extensions the article is 
not released the article will be 
deemed excluded for the purposes 
of 19 U.S.C. 1514(a)(4). 
 (1) Notice to importer of 
detention and possible disclosure. 
Within five days (excluding 
weekends and holidays) from the 
date of a decision to detain, CBP 
will notify the importer in writing 
of the detention.  The notice will 
inform the importer that a 
disclosure of information 
concerning the detained 
merchandise may be made to the 
owner of the mark to assist CBP in 
determining whether any marks 
are counterfeit, unless the importer presents information within seven 
days of the notification (excluding 
weekends and holidays) 
establishing to CBP's satisfaction 
that the detained merchandise does 
not bear a counterfeit mark. CBP 
may disclose information 
appearing on the merchandise 
and/or its retail packaging, images 
(including photographs) of the IP/N/1/USA/E/2 
Page 8  
 
  merchandise and/or its retail 
packaging in its condition as 
presented for examination or a 
sample of the merchandise and/or 
its retail packaging in its condition 
as presented for examination. The 
release (disclosure) of a sample is 
subject to the bond and return 
requirements of paragraph (c) of 
this section. Where the importer 
does not timely provide 
information or the information 
provided is insufficient for CBP to 
determine that the merchandise 
does not bear a counterfeit mark, 
CBP may proceed with the 
disclosure to the owner of the 
mark, and will so notify the 
importer. Disclosure under this section may include any serial 
numbers, dates of manufacture, lot 
codes, batch numbers, universal 
product codes, or other identifying 
marks appearing on the 
merchandise or its retail 
packaging, in alphanumeric or 
other formats. 
 (2) Notice to owner of the 
mark and disclosure of 
information. From the time 
merchandise is presented for 
examination until the time a notice 
of detention is issued, CBP may 
disclose to the owner of the mark 
any of the following information 
in order to obtain assistance in 
determining whether an imported 
article bears a counterfeit mark. 
Once a notice of detention is 
issued, CBP will disclose to the 
owner of the mark the following 
information, if available, within 
thirty days (excluding weekends 
and holidays) from the date of 
detention: 
 (i) The date of importation; 
 (ii) The port of entry; 
 (iii) The description of the 
merchandise from the entry; 
 (iv) The quantity involved; and 
 (v) The country of origin of 
the merchandise. 
 (3) Redacted images and 
samples made available to the owner of the mark.  
Notwithstanding the notice and 
seven-day response procedure of 
paragraph (b)(1) of this section, 
CBP may, at any time after 
presentation of the merchandise 
for examination, provide to the 
owner of the mark images or a 
sample of the detained 
merchandise or its retail packaging, provided that 
identifying information has been 
removed, obliterat ed, or otherwise 
obscured. Identifying information 
includes, but is not limited to, 
serial numbers, dates of 
manufacture, lot codes, batch 
numbers, universal product codes, 
the name or address of the 
manufacturer, exporter, or 
importer of the merchandise, or 
any mark that could reveal the 
name or address of the 
manufacturer, exporter, or 
importer of the merchandise, in 
alphanumeric or other formats. 
CBP will release to the owner of 
the mark a sample under this 
paragraph when the owner furnishes CBP a bond in the form 
and amount specified by the port 
director, conditioned to hold the 
United States, its officers and 
employees, and the importer or 
owner of the imported article 
harmless from any loss or damage 
to the sample resulting from the 
furnishing of a sample by CBP to 
the owner of the mark. CBP may 
demand the return of the sample at 
any time. The owner of the mark 
must return the sample to CBP 
upon demand or at the conclusion 
of any examination, testing, or 
similar procedure performed on 
the sample. In the event that the 
sample is damaged, destroyed, or lost while in the possession of the 
owner of the mark, the owner 
must, in lieu of return of the 
sample, certify to CBP that: "The 
sample described as [insert 
description] and provided pursuant 
to 19 CFR 133.21(b)(3) was 
(damaged/destroyed/lost) during 
examination, testi ng, or other use.'' 
 (c) Unredacted samples made 
available to the owner of the mark 
prior to seizure. A sample of the 
imported merchandise may be 
released prior to seizure to the 
owner of the mark in accordance 
with paragraph (b)(1) of this 
section. CBP will release to the owner of the mark a sample under 
this paragraph when the owner 
furnishes CBP a bond in the form 
and amount specified by the port 
director, conditioned to hold the 
United States, its officers and 
employees, and the importer or 
owner of the imported article 
harmless from any loss or damage 
to the sample resulting from the furnishing of a sample by CBP to 
the owner of the mark. CBP may 
demand the return of the sample at 
any time. The owner of the mark 
must return the sample to CBP 
upon demand or at the conclusion 
of any examination, testing, or 
similar procedure performed on 
the sample. In the event that the 
sample is damaged, destroyed, or 
lost while in the possession of the 
owner of the mark, the owner 
must, in lieu of return of the 
sample, certify to CBP that: "The 
sample described as [insert 
description] and provided pursuant 
to 19 CFR 133.21(c) was 
(damaged/destroyed/lost) during 
examination, testing,  or other use.''  
 (d) Seizure. Upon a 
determination by CBP, made any 
time after the merchandise has 
been presented for examination, 
that an article of domestic or 
foreign manufacture imported into 
the United States bears a 
counterfeit mark, CBP will seize 
such merchandise and, in the 
absence of the written consent of 
the owner of the mark, forfeit the 
seized merchandise in accordance 
with the customs laws. When 
merchandise is seized under this 
section, CBP will disclose to the 
owner of the mark the following 
information, if available, within 
thirty days (excluding weekends 
and holidays) from the date of the 
notice of seizure: 
 (1) The date of importation; 
 (2) The port of entry; 
 (3) The description of the 
merchandise from the entry; 
 (4) The quantity involved; 
 (5) The name and address of 
the manufacturer; 
 (6) The country of origin of 
the merchandise; 
 (7) The name and address of 
the exporter; and 
 (8) The name and address of 
the importer. 
 (e) Samples made available to 
the owner of the mark after seizure. At any time following a 
seizure of merchandise bearing a 
counterfeit mark under this 
section, CBP may provide a 
sample and its retail packaging, in 
its condition as presented for 
examination, to the owner of the 
mark for examination, testing, or 
other use in pursuit of a related 
private civil remedy for trademark  IP/N/1/USA/E/2 
 Page 9 
 
 
  infringement. To obtain a sample 
under this paragraph, the owner of 
the mark must furnish CBP a bond 
in the form and amount specified 
by the port director, conditioned to 
hold the United States, its officers 
and employees, and the importer 
or owner of the imported article 
harmless from any loss or damage 
to the sample resulting from the 
furnishing of a sample by CBP to 
the owner of the mark. CBP may 
demand the return of the sample at 
any time. The owner of the mark 
must return the sample to CBP 
upon demand or at the conclusion 
of the examination, testing, or 
other use in pursuit of a related 
private civil remedy for infringement. In the event that the 
sample is damaged, destroyed, or 
lost while in the possession of the 
owner of the mark, the owner 
must, in lieu of return of the 
sample, certify to CBP that: "The 
sample described as [insert 
description] and provided pursuant 
to 19 CFR 133.21(e) was 
(damaged/destroyed/lost) during 
examination, testi ng, or other use.'' 
 (f) Consent of the mark owner; 
failure to make appropriate 
disposition. The owner of the 
mark, 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 mark, 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.  
§ 133.22 [Amended] 
 
■ 4. Section 133.22(f), first 
sentence, is amended by removing 
the words "within the 30-day 
period of detention'' and adding in 
their place the words "within the 
period of detention as provided in 
§ 133.25 of this subpart''. 
 
§ 133.23 [Amended] 
 
■ 5. Section 133.23(f), first 
sentence, is amended by removing 
the words "within the 30-day 
period of detention'' and adding in 
their place the words "within the 
period of detention as provided in § 133.25 of this subpart''. 
 
§ 133.26 [Amended] 
 
■ 6. Section 133.26 is amended by 
removing from the first sentence 
the words "subject to the 
restrictions of § 133.22 or 
§ 133.23 of this subpart'' and 
adding in their place the words 
"subject to the restrictions of 
§ 133.21, § 133.22 or § 133.23 of 
this subpart''. 
 
PART 151—EXAMINATION, 
SAMPLING AND TESTING 
OF MERCHANDISE 
 
■ 7. The general authority citation 
for part 151 continues to read as 
follows: 
 
 Authority: 19 U.S.C. 66, 1202 
(General Note 3(i) and (j), 
Harmonized Tariff Schedule of the 
United States (HTSUS), 1624; 
 
* * * * * 
 ■ 8. Section 151.16(a) is revised to 
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 and to detentions arising 
from possibly piratical copies (see 
part 133, subpart E, of this 
Chapter), imports of articles 
bearing counterfeit marks or 
suspected counterfeit marks, goods bearing marks which are 
confusingly similar to recorded 
trademarks, or restricted gray 
market merchandise (see part 133, 
subpart C, of this chapter.) 
 
* * * * * 
 
David V. Aguilar, 
Acting Commissioner, U.S. 
Customs and 
Border Protection. 
 
 Approved: April 18, 2012. 
 
Timothy E. Skud, 
Deputy Assistant Secretary of the 
Treasury. 
 
[FR Doc. 2012–9762 Filed 4–23–
12; 8:45 am] 
 
BILLING CODE 9111–14–P 
 
 
 
 
 
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