II 

112TH CONGRESS 

1ST SESSION S. 1830 

To improve enforcement of intellectual property rights, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 8, 2011 

Ms. STABENOW introduced the following bill; which was read twice and 

referred to the Committee on Finance 

A BILL 

To improve enforcement of intellectual property rights, and 

for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Protect American Innovation Act of 2011’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—STRENGTHENING ENFORCEMENT OF INTELLECTUAL 

PROPERTY RIGHTS 

Subtitle A—Definitions 

Sec. 101. Definitions. 


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Subtitle B—Coordination of Enforcement of Intellectual Property Rights 

Sec. 111. Director of Intellectual Property Rights Enforcement. 

Sec. 112. U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement intellectual property rights coordinators. 

Subtitle C—Regulatory and Policy Improvements With Respect to Combating 

Counterfeiting and Piracy 

Sec. 121. Identification of certain unlawful goods. 

Sec. 122. Training in new technologies. 

Sec. 123. Disclosure of information and samples of shipments to intellectual 

property owners. 

Sec. 124. Improvements to recordation process. 

Sec. 125. Identification of low-risk importers. 

Sec. 126. ‘‘Watch List’’ database. 

Sec. 127. Civil fines for importation of pirated or counterfeit goods. 

Sec. 128. Report on effective collection techniques. 

Subtitle D—Training Enhancements 

Sec. 131. International training and technical assistance enhancements. 

Subtitle E—New Legal Tools for Border Enforcement 

Sec. 141. Expanded prohibitions on importation, exportation, and transshipment of counterfeit or pirated goods. 

Sec. 142. Declarations regarding counterfeit and infringing merchandise. 

Sec. 143. Seizure and forfeiture of devices designed to circumvent intellectual 

property rights protections. 

Sec. 144. Authority of Chief Counsel of U.S. Customs and Border Protection 

to represent the United States in certain forfeiture proceedings. 

Subtitle F—Administrative Provisions 

Sec. 151. Advisory Committee on Import Safety and Intellectual Property Enforcement. 

Sec. 152. Staffing enhancements at U.S. Customs and Border Protection. 

Sec. 153. Staffing enhancements at U.S. Immigration and Customs Enforcement. 

Sec. 154. Regulatory authority. 

TITLE II—INCREASED PENALTIES FOR CERTAIN UNFAIR TRADE 

PRACTICES 

Sec. 201. Increased penalties for certain unfair trade practices. 


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1 TITLE I—STRENGTHENING EN2 FORCEMENT OF INTELLEC3 TUAL PROPERTY RIGHTS 

4 Subtitle A—Definitions 

5 SEC. 101. DEFINITIONS. 

6 In this title: 

7 (1) ADVISORY COMMITTEE.—The term ‘‘Advi8 sory Committee’’ means the Advisory Committee on 

9 Import Safety and Intellectual Property Rights En10 forcement established pursuant to section 151. 

11 (2) COMMISSIONER.—The term ‘‘Commis12 sioner’’ means the Commissioner responsible for 

13 U.S. Customs and Border Protection. 

14 (3) COUNTERFEITING; COUNTERFEIT GOODS.— 

15 (A) COUNTERFEITING.—The term ‘‘coun16 terfeiting’’ means activities related to produc17 tion of or trafficking in goods, including pack18 aging, that bear a spurious mark or designation 

19 that is identical to or substantially indistin20 guishable from a mark or designation protected 

21 under the trademark laws or related laws.

22 (B) COUNTERFEIT GOODS.—The term 

23 ‘‘counterfeit goods’’ means goods described in 

24 subparagraph (A). 


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1 (4) DIRECTOR.—The term ‘‘Director’’ means 

2 the Director of Intellectual Property Rights Enforce3 ment of the Department of the Treasury established 

4 under section 111. 

5 (5) ENFORCEMENT OF INTELLECTUAL PROP6 ERTY RIGHTS.—The term ‘‘enforcement of intellec7 tual property rights’’ means activities to enforce— 

8 (A) copyrights, patents, trademarks, and 

9 other forms of intellectual property, including 

10 activities to control counterfeiting and piracy; 

11 and 

12 (B) exclusion orders issued by the United 

13 States International Trade Commission by rea14 son of any of subparagraphs (B) through (E) of 

15 subsection (a)(1) of section 337 of the Tariff 

16 Act of 1930 (19 U.S.C. 1337(a)(1) (B) through 

17 (E)). 

18 (6) EXCLUSION ORDER.—The term ‘‘exclusion 

19 order’’ means an order of the United States Inter20 national Trade Commission issued under section 337 

21 (d) or (e) of the Tariff Act of 1930 (19 U.S.C. 1337 

22 (d) and (e)) to exclude goods from entry into the 

23 United States. 

24 (7) PIRACY; PIRATED GOODS.— 


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1 (A) PIRACY.—The term ‘‘piracy’’ means 

2 activities related to production of or trafficking 

3 in unauthorized copies or phonorecords of 

4 works protected under title 17, United States 

5 Code, or related laws. 

6 (B) PIRATED GOODS.—The term ‘‘pirated 

7 goods’’ means copies or phonorecords described 

8 in subparagraph (A). 

9 (8) SECRETARY.—Except as otherwise provided, 

10 the term ‘‘Secretary’’ means the Secretary of the 

11 Treasury. 

12 (9) TRANSSHIPMENT.—The term ‘‘trans13 shipment’’ means the shipment of goods through one 

14 country that is an intermediate destination to an15 other country that is the final destination of the 

16 goods. 

17 Subtitle B—Coordination of En18 forcement of Intellectual Prop19 erty Rights 

20 SEC. 111. DIRECTOR OF INTELLECTUAL PROPERTY RIGHTS 

21 ENFORCEMENT. 

22 (a) ESTABLISHMENT.—There is established within 

23 the Department of the Treasury the position of Director 

24 of Intellectual Property Rights Enforcement. 


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1 (b) APPOINTMENT.—The Director shall be appointed 

2 by the Secretary, and shall be responsible to and shall re3 port directly to the Deputy Secretary of the Treasury. 

4 (c) DUTIES.—The Director shall— 

5 (1) coordinate all activities of the Department 

6 of the Treasury involving the enforcement of intel7 lectual property rights and coordinate with U.S. 

8 Customs and Border Protection and U.S. Immigra9 tion and Customs Enforcement with respect to such 

10 enforcement; 

11 (2) coordinate the policy and regulatory 

12 changes set forth in this title; 

13 (3) serve as staff representative of the Depart14 ment of the Treasury in interagency bodies with re15 sponsibility for coordination of activities involving 

16 the enforcement of intellectual property rights; 

17 (4) conduct an evaluation of the effectiveness of 

18 the organizational structure of U.S. Customs and 

19 Border Protection for reducing the entry into the 

20 United States of counterfeit or pirated goods, goods 

21 in violation of exclusion orders, and other goods in 

22 violation of other intellectual property rights; and 

23 (5) carry out other duties, as assigned by the 

24 Secretary or Deputy Secretary of the Treasury, to 

25 improve the effectiveness of the efforts of the DeVerDate Mar 15 2010 21:48 Nov 09, 2011 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1830.IS S1830

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1 partment of the Treasury under the laws within its 

2 jurisdiction with respect to the enforcement of intel3 lectual property rights. 

4 SEC. 112. U.S. CUSTOMS AND BORDER PROTECTION AND 

5 U.S. IMMIGRATION AND CUSTOMS ENFORCE6 MENT INTELLECTUAL PROPERTY RIGHTS CO7 ORDINATORS. 

8 (a) U.S. CUSTOMS AND BORDER PROTECTION IN9 TELLECTUAL PROPERTY RIGHTS COORDINATOR.— 

10 (1) APPOINTMENT.—The Commissioner shall 

11 appoint a U.S. Customs and Border Protection coor12 dinator of intellectual property rights enforcement 

13 activities (in this subtitle referred to as the ‘‘U.S. 

14 Customs and Border Protection Intellectual Prop15 erty Rights Coordinator’’), who shall report directly 

16 to the Commissioner. 

17 (2) DUTIES.—The U.S. Customs and Border 

18 Protection Intellectual Property Rights Coordinator 

19 shall— 

20 (A) coordinate all efforts, at all ports of 

21 entry and elsewhere, carried out by U.S. Cus22 toms and Border Protection with respect to the 

23 enforcement of intellectual property rights, in24 cluding training and staffing; 


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1 (B) supervise the implementation of those 

2 aspects of the regulatory and policy reforms set 

3 out in this title that involve U.S. Customs and 

4 Border Protection and submit a report on such 

5 activities to the Director annually; and 

6 (C) carry out such other duties, as as7 signed by the Commissioner, the purpose of 

8 which are to improve the performance of U.S. 

9 Customs and Border Protection with respect to 

10 the enforcement of intellectual property rights. 

11 (b) U.S. IMMIGRATION AND CUSTOMS ENFORCE12 MENT INTELLECTUAL PROPERTY RIGHTS COORDI13 NATOR.— 

14 (1) APPOINTMENT.—The Assistant Secretary 

15 for U.S. Immigration and Customs Enforcement 

16 shall appoint a U.S. Immigration and Customs En17 forcement coordinator of intellectual property en18 forcement activities (in this subtitle referred to as 

19 the ‘‘U.S. Immigration and Customs Enforcement 

20 Intellectual Property Rights Coordinator’’), who 

21 shall report directly to the Assistant Secretary for 

22 U.S. Immigration and Customs Enforcement. 

23 (2) DUTIES.—The U.S. Immigration and Cus24 toms Enforcement Intellectual Property Rights Co25 ordinator shall— 


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1 (A) coordinate all efforts carried out by 

2 U.S. Immigration and Customs Enforcement 

3 with respect to the enforcement of intellectual 

4 property rights, including training and staffing; 

5 (B) supervise the implementation of those 

6 aspects of the regulatory and policy reforms set 

7 out in this title that involve U.S. Immigration 

8 and Customs Enforcement; and 

9 (C) carry out such other duties, as as10 signed by the Assistant Secretary for U.S. Im11 migration and Customs Enforcement, the pur12 pose which are to improve the performance of 

13 U.S. Immigration and Customs Enforcement 

14 with respect to the enforcement of intellectual 

15 property rights. 

16 Subtitle C—Regulatory and Policy 

17 Improvements With Respect to 

18 Combating Counterfeiting and 

19 Piracy 

20 SEC. 121. IDENTIFICATION OF CERTAIN UNLAWFUL GOODS. 

21 Not later than 180 days after the date of the enact22 ment of this Act, the Secretary, acting through the Com23 missioner, shall prescribe regulations to apply risk assess24 ment modeling techniques to border enforcement activities 


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1 with respect to combating counterfeiting and piracy. Such 

2 efforts shall include— 

3 (1) preparing a report on and evaluation of the 

4 pilot project of U.S. Customs and Border Protection 

5 with respect to shipments of counterfeit or pirated 

6 products; 

7 (2) expanding the pilot project to allow for the 

8 use of the Automated Targeting System in risk as9 sessment modeling; and 

10 (3) developing a plan for the development, test11 ing, evaluation, and continuous improvement of risk 

12 assessment modeling techniques to facilitate the en13 forcement of intellectual property rights. 

14 SEC. 122. TRAINING IN NEW TECHNOLOGIES. 

15 (a) TRAINING OF PERSONNEL.—The Commissioner 

16 shall consult with the Advisory Committee to determine 

17 the feasibility of training U.S. Customs and Border Pro18 tection personnel in the use of new technological means 

19 for detecting and identifying, at ports of entry, counterfeit 

20 and pirated goods, and goods that are subject to exclusion 

21 orders, whether for entry into the United States or for 

22 transshipment to other destinations. 

23 (b) IDENTIFICATION OF TECHNOLOGIES AND

24 SOURCES OF TRAINING.—In consultation with the Advi25 sory Committee, the Commissioner shall identify— 


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1 (1) cost-effective technologies for detecting and 

2 identifying goods described in subsection (a) at ports 

3 of entry; and 

4 (2) economical sources for training U.S. Cus5 toms and Border Protection personnel in the use of 

6 such technologies. 

7 (c) REGULATORY AND POLICY CHANGES.—The 

8 Comptroller General of the United States shall submit to 

9 Congress a report analyzing the costs and benefits of mak10 ing regulatory and policy changes to enable the receipt of 

11 donations of hardware, software, equipment, and similar 

12 technologies, and the acceptance of training and other 

13 support services, from the private sector, to facilitate the 

14 training of personnel of U.S. Customs and Border Protec15 tion under subsection (a). 

16 SEC. 123. DISCLOSURE OF INFORMATION AND SAMPLES OF 

17 SHIPMENTS TO INTELLECTUAL PROPERTY 

18 OWNERS. 

19 The Commissioner shall prescribe regulations to— 

20 (1) improve the process of making samples of 

21 shipments of goods suspected of violating intellectual 

22 property rights available to the owners of copyrights, 

23 trademarks, patents, and other forms of intellectual 

24 property, in an efficient and cost-effective manner, 


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1 for the purpose of inspection or analysis, including 

2 by developing a process under which— 

3 (A) a requirement that such an owner post 

4 a bond to receive such a sample may be waived 

5 if the value of the sample is less than $100; or 

6 (B) such an owner may elect to obtain a 

7 continuous bond with respect to such samples; 

8 and 

9 (2) increase disclosure to owners of copyrights, 

10 trademarks, patents, and other forms of intellectual 

11 property of information about shipments of goods 

12 that have been detained at ports of entry on sus13 picion that the importation into, or transshipment 

14 through, the United States of those goods would vio15 late the intellectual property rights of such owners, 

16 including— 

17 (A) providing a detailed description of the 

18 goods, including information on the packaging 

19 of the goods such as expiration dates and 

20 model, lot, batch, part, or serial numbers or 

21 universal product codes (UPC); 

22 (B) providing photographs of the goods 

23 that do not mask identifying information about 

24 the goods; 


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1 (C) disclosing the identities and contact in2 formation of all parties involved in the ship3 ments, including importers, exporters, declar4 ants, consignees, freight forwarders, and ware5 house owners; 

6 (D) identifying points of origin and des7 tination of the shipments; and 

8 (E) providing any other documents relat9 ing to the shipments. 

10 SEC. 124. IMPROVEMENTS TO RECORDATION PROCESS. 

11 (a) IMPROVEMENTS IN RECORDATION PROCESS.— 

12 The Commissioner shall prescribe regulations to ensure 

13 that the system for recordation of copyrights, trademarks, 

14 patents, and other forms of intellectual property that may 

15 be subject to recordation, does not impede the rapid sei16 zure of goods that violate the rights of the owners of such 

17 copyrights, trademarks, patents, and other forms of intel18 lectual property. 

19 (b) SIMULTANEOUS RECORDATION.— 

20 (1) IN GENERAL.—In consultation with the 

21 Under Secretary of Commerce for Intellectual Prop22 erty and Director of the United States Patent and 

23 Trademark Office, and the Register of Copyrights, 

24 the Commissioner shall develop a system pursuant to 

25 which— 


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1 (A) trademarks may be recorded with U.S. 

2 Customs and Border Protection simultaneously 

3 with the issuance of trademark registration; 

4 and 

5 (B) copyrights of audiovisual works and 

6 sound recordings may be recorded with U.S. 

7 Customs and Border Protection simultaneously 

8 with the filing of an application for a certificate 

9 of copyright registration or an application for 

10 registration of another intellectual property 

11 right under title 17, United States Code. 

12 (2) DEFINITIONS.—In this subsection, the 

13 terms ‘‘audiovisual works’’ and ‘‘sound recordings’’ 

14 have the meanings given those terms in section 101 

15 of title 17, United States Code. 

16 SEC. 125. IDENTIFICATION OF LOW-RISK IMPORTERS. 

17 (a) IN GENERAL.—The Commissioner shall develop 

18 a voluntary certification program for importers that have 

19 taken specific measures to strengthen and protect their 

20 supply chains to prevent the infiltration into the inter21 national supply chain of counterfeit and pirated goods, 

22 goods that are the subject to exclusion orders, and goods 

23 that violate other forms of intellectual property rights. 

24 (b) SELF-CERTIFICATION.—The voluntary certifi25 cation program developed under subsection (a) shall rely 


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1 primarily on self-certification by importers in determining 

2 the eligibility of importers for the program. 

3 (c) THIRD-PARTY VERIFICATIONS.—The Commis4 sioner shall identify any circumstances, such as importa5 tion from any country with a history of being identified 

6 under section 182 of the Trade Act of 1974 (19 U.S.C. 

7 2242) as denying adequate and effective protection of in8 tellectual property rights, under which third-party veri9 fications shall be required to determine the eligibility of 

10 importers for the voluntary certification program. 

11 (d) BENEFITS.—An importer determined to be eligi12 ble for the voluntary certification program and to have 

13 taken the measures required under subsection (a) may re14 ceive benefits with respect to customs requirements, such 

15 as reduced inspections from U.S. Customs and Border 

16 Protection. 

17 (e) DEFINITION.—In this section, the term ‘‘inter18 national supply chain’’ has the meaning given that term 

19 in section 2 of the Security and Accountability for Every 

20 Port Act of 2006 (6 U.S.C. 901). 

21 SEC. 126. ‘‘WATCH LIST’’ DATABASE. 

22 (a) IN GENERAL.—The Secretary, acting through the 

23 Commissioner, shall develop and implement a database of 

24 importers, shippers, freight forwarders, and other partici25 pants in the import, export, and transshipment process, 


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1 whose activities the Commissioner determines merit spe2 cial scrutiny at ports of entry because of the risk of impor3 tation, exportation, or transshipment of goods that violate 

4 intellectual property rights or exclusion orders. 

5 (b) PLAN.—Not later than 180 days after the date 

6 of the enactment of this Act, the Secretary, acting through 

7 the Commissioner, shall develop a plan to implement the 

8 database required under subsection (a). The plan shall— 

9 (1) identify legitimate information sources to be 

10 used in determining whether to place persons on the 

11 database from— 

12 (A) within U.S. Customs and Border Pro13 tection; 

14 (B) other law enforcement sources; and 

15 (C) the private sector; 

16 (2) establish criteria under which the database 

17 should be made available— 

18 (A) to qualified officers of U.S. Customs 

19 and Border Protection and other law enforce20 ment agencies; 

21 (B) for intelligence purposes; and 

22 (C) for use in identifying shipments for en23 hanced inspection; 

24 (3) identify any regulatory or policy changes 

25 that are necessary to make the database operational; 


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1 (4) contain any recommendations for statutory 

2 changes to improve the effectiveness of the database; 

3 (5) include an estimate of the resources nec4 essary to implement and operate the database and to 

5 evaluate its effectiveness; and 

6 (6) include a timetable for implementation of 

7 the database. 

8 (c) CONSULTATIONS WITH ADVISORY COMMITTEE.— 

9 The Commissioner shall consult with the Advisory Com10 mittee on the development of criteria for the database. 

11 SEC. 127. CIVIL FINES FOR IMPORTATION OF PIRATED OR 

12 COUNTERFEIT GOODS. 

13 (a) LIMITATION ON MITIGATION, DISMISSAL, AND

14 VACATION OF FINES.—Unless otherwise ordered by a 

15 court of competent jurisdiction, any civil fine imposed pur16 suant to section 526(f) of the Tariff Act of 1930 (19 

17 U.S.C. 1526(f))— 

18 (1) may not be mitigated, except pursuant to 

19 regulations issued by the Commissioner; and 

20 (2) may not be dismissed or vacated, except 

21 pursuant to regulations issued by the Commissioner 

22 that require the specific approval of the Commis23 sioner or the Commissioner’s designee for such dis24 missal or vacation. 


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1 (b) EXTRAORDINARY CASES.—In issuing regulations 

2 under subsection (a), the Commissioner shall ensure that 

3 the mitigation, dismissal, or vacation of civil fines for in4 volvement in the importation, exportation, or trans5 shipment of pirated or counterfeit goods is limited to ex6 traordinary cases in which the interests of justice will 

7 clearly be served by such action. 

8 SEC. 128. REPORT ON EFFECTIVE COLLECTION TECH9 NIQUES. 

10 (a) IN GENERAL.—The Commissioner shall submit to 

11 the Committee on Finance of the Senate and the Com12 mittee on Ways and Means of the House of Representa13 tives a report on— 

14 (1) the extent to which U.S. Customs and Bor15 der Protection uses effective collection techniques for 

16 collecting civil fines imposed on persons that import, 

17 export, or transship pirated or counterfeit goods; 

18 (2) any recommendations with respect to im19 proving the use of such techniques by U.S. Customs 

20 and Border Protection; 

21 (3) any recommendations with respect to 

22 whether— 

23 (A) owners of copyrights or trademarks 

24 should be authorized to pursue and collect fines 


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1 imposed as a result of activities that violate 

2 such copyrights or trademarks; and 

3 (B) such owners should be allowed to re4 tain some or all of any funds so collected; and 

5 (4) any other recommendations for statutory, 

6 regulatory, or policy changes not under the control 

7 of U.S. Customs and Border Protection to improve 

8 the agency’s ability— 

9 (A) to impose civil fines on persons that 

10 import, export, or transship pirated or counter11 feit goods, at levels that would deter such im12 portation, exportation, and transshipment; and 

13 (B) to collect such fines. 

14 (b) EFFECTIVE COLLECTION TECHNIQUES.—In this 

15 section, the term ‘‘effective collection techniques’’ in16 cludes— 

17 (1) confiscation of the proceeds of actions for 

18 which civil fines can be imposed; 

19 (2) seizure of property acquired with such pro20 ceeds; 

21 (3) imposition of liens on the real or personal 

22 property of persons upon whom civil fines are im23 posed; 

24 (4) use of bonds to secure full payment of fines; 


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1 (5) in any case in which an entity is liable and 

2 has no assets or is no longer in business, holding lia3 ble any person who— 

4 (A) was an officer or director of the entity; 

5 (B) in the case of a corporation, held at 

6 least 5 percent (by vote or value) of the capital 

7 structure of the corporation; or 

8 (C) in the case of any other entity, held in9 terests representing at least 5 percent of the 

10 capital structure of the entity; and 

11 (6) engaging private sector entities to collect 

12 civil fines imposed. 

13 Subtitle D—Training 

14 Enhancements 

15 SEC. 131. INTERNATIONAL TRAINING AND TECHNICAL AS16 SISTANCE ENHANCEMENTS. 

17 The Secretary shall take the necessary steps— 

18 (1) to increase staffing and resources of offices 

19 of U.S. Customs and Border Protection and U.S. 

20 Immigration and Customs Enforcement engaged in 

21 providing training and technical assistance to the 

22 customs services and enforcement agencies of other 

23 countries in order to improve the effectiveness of 

24 such customs services and enforcement agencies with 

25 respect to— 


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1 (A) detecting and intercepting the expor2 tation, importation, and transshipment of coun3 terfeit or pirated goods, goods that are the sub4 ject to exclusion orders, and goods that violate 

5 other forms of intellectual property rights; and 

6 (B) imposing penalties on persons that ex7 port, import, or transship counterfeit or pirated 

8 goods at levels that will deter such exportation, 

9 importation, and transshipment; and 

10 (2) to ensure that the Director, in order to 

11 make the most efficient and effective use of training 

12 and technical assistance resources— 

13 (A) coordinates the international training 

14 and technical assistance activities of U.S. Cus15 toms and Border Protection and U.S. Immigra16 tion and Customs Enforcement as part of the 

17 Director’s coordination responsibilities under 

18 section 111; 

19 (B) gives priority to international training 

20 and technical assistance activities in countries 

21 in which such activities can be carried out most 

22 effectively and with the greatest benefit to pro23 tecting the intellectual property rights of United 

24 States persons; 


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1 (C) takes steps to minimize duplication, 

2 overlap, or inconsistency of international train3 ing and technical assistance efforts; and 

4 (D) coordinates such activities of the De5 partment of the Treasury with international 

6 training and technical assistance activities 

7 against counterfeiting and piracy carried out by 

8 other agencies, and enhances the participation 

9 of Department of the Treasury personnel in 

10 interagency training and technical assistance 

11 activities in this field. 

12 Subtitle E—New Legal Tools for 

13 Border Enforcement 

14 SEC. 141. EXPANDED PROHIBITIONS ON IMPORTATION, EX15 PORTATION, AND TRANSSHIPMENT OF COUN16 TERFEIT OR PIRATED GOODS. 

17 (a) IN GENERAL.—Section 526 of the Tariff Act of 

18 1930 (19 U.S.C. 1526) is amended— 

19 (1) in the section heading, by inserting ‘‘OR

20 PROTECTED BY COPYRIGHT’’ after ‘‘TRADE21 MARK’’; 

22 (2) in subsection (e), by striking ‘‘Any such 

23 merchandise’’ and all that follows through ‘‘15 

24 U.S.C. 1124),’’ and inserting ‘‘Any merchandise 

25 bearing a counterfeit mark (as defined in section 


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1 2320(e) of title 18, United States Code) that is im2 ported into the United States, exported out of the 

3 United States, or transshipped through the United 

4 States’’; and 

5 (3) in subsection (f)— 

6 (A) by striking paragraph (1) and insert7 ing the following: 

8 ‘‘(1) Any person who engages in, directs, assists fi9 nancially or otherwise, or aids and abets the importation, 

10 exportation, or transshipment of merchandise that is 

11 seized under subsection (e) of this section, or under regu12 lations issued pursuant to section 603(c) of title 17, 

13 United States Code, shall be subject to a civil fine.’’; 

14 (B) by redesignating paragraph (4) as 

15 paragraph (5); and 

16 (C) by inserting after paragraph (3) the 

17 following: 

18 ‘‘(4) When the seizure of merchandise that results in 

19 the imposition of a civil fine is made under circumstances 

20 indicating that the importation, exportation, or trans21 shipment of the merchandise was for the purpose of sale 

22 or public distribution of the merchandise, the maximum 

23 fine amounts set forth in paragraphs (2) and (3) shall be 

24 tripled.’’. 


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1 (b) CONFORMING AMENDMENTS.—Title 17, United 

2 States Code, is amended— 

3 (1) in section 501(a), by inserting ‘‘, exports 

4 copies or phonorecords from the United States, or 

5 transships copies or phonorecords through the 

6 United States’’ after ‘‘into the United States’’; 

7 (2) in section 506(c), by inserting 

8 ‘‘, exports, or transships’’ after ‘‘imports’’; 

9 (3) in section 511(a), by inserting ‘‘, exporting, 

10 or transshipping’’ after ‘‘importing’’; 

11 (4) in section 602— 

12 (A) in the section heading, by striking ‘‘or 

13 exportation’’ and inserting ‘‘, expor14 tation, or transshipment’’; and 

15 (B) in subsection (a)— 

16 (i) in paragraph (2)— 

17 (I) in the paragraph heading, by 

18 striking ‘‘OR EXPORTATION’’ and in19 serting ‘‘, EXPORTATION, OR TRANS20 SHIPMENT’’; and 

21 (II) by striking ‘‘or exportation 

22 from the United States’’ and inserting 

23 ‘‘, exportation from the United States, 

24 or transshipment through the United 

25 States’’; and 


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1 (ii) in paragraph (3)— 

2 (I) in subparagraph (A), by strik3 ing ‘‘or exportation’’ and inserting ‘‘, 

4 exportation, or transshipment’’; and 

5 (II) in subparagraph (B), by 

6 striking ‘‘or exportation, for the pri7 vate use of the importer or exporter’’ 

8 and inserting ‘‘, exportation, or trans9 shipment, for the private use of the 

10 importer, exporter, or person trans11 shipping copies or phonorecords’’; 

12 (5) in section 603— 

13 (A) in the section heading, by striking 

14 ‘‘Importation prohibitions’’ and inserting 

15 ‘‘Prohibitions on importation, expor16 tation, and transshipment’’; 

17 (B) in subsection (a), by inserting 

18 ‘‘, exportation, and transshipment’’ after ‘‘im19 portation’’; 

20 (C) in subsection (b), by inserting 

21 ‘‘, exportation, or transshipment’’ after ‘‘impor22 tation’’ each place it appears; and 

23 (D) in subsection (c)— 


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1 (i) by inserting ‘‘, exported, or trans2 shipped’’ after ‘‘imported’’ each place it 

3 appears; and 

4 (ii) by inserting ‘‘, exportation, or 

5 transshipped’’ after ‘‘importation’’; 

6 (6) by amending the chapter heading for chap7 ter 6 to read as follows: 

8 ‘‘CHAPTER 6—MANUFACTURING REQUIRE9 MENTS, IMPORTATION, EXPORTATION, 

10 AND TRANSSHIPMENT’’; 

11 (7) in the table of sections for chapter 6, by 

12 amending the items relating to sections 602 and 603 

13 to read as follows: 

‘‘602. Infringing importation, exportation, and transshipment of copies or 

phonorecords. 

‘‘603. Prohibitions on importation, exportation, and transshipment: Enforcement 

and disposition of excluded articles.’’; 

14 and 

15 (8) in the table of chapters, by amending the 

16 item relating to chapter 6 to read as follows: 

‘‘6. Manufacturing Requirements, Importation, Exportation, and Transshipment ................................ 601’’. 

17 SEC. 142. DECLARATIONS REGARDING COUNTERFEIT AND 

18 INFRINGING MERCHANDISE. 

19 (a) DECLARATIONS.—Section 485(a) of the Tariff 

20 Act of 1930 (19 U.S.C. 1485(a)) is amended— 

21 (1) in paragraph (1), by striking ‘‘Whether’’ 

22 and inserting ‘‘whether’’; 


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1 (2) in paragraph (2), by striking ‘‘That’’ and 

2 inserting ‘‘that’’; 

3 (3) in paragraph (3)— 

4 (A) by striking ‘‘That’’ and inserting 

5 ‘‘that’’; and 

6 (B) by striking ‘‘and’’ after the semicolon; 

7 (4) in paragraph (4)— 

8 (A) by striking ‘‘That’’ and inserting 

9 ‘‘that’’; and 

10 (B) by striking the period and inserting a 

11 semicolon; and 

12 (5) by adding at the end the following: 

13 ‘‘(5) that the merchandise being imported does 

14 not bear a counterfeit mark (as defined in section 

15 2320(e) of title 18, United States Code); 

16 ‘‘(6) that the merchandise is not an infringing 

17 copy or phonorecord or one whose making would 

18 have constituted an infringement of copyright if title 

19 17, United States Code, had applied; and 

20 ‘‘(7) that the merchandise does not— 

21 ‘‘(A) violate an exclusion order of the 

22 United States International Trade Commission 

23 under section 337 (d) or (e) by reason of any 

24 of subparagraphs (B) through (E) of subsection 

25 (a)(1) of section 337; or 


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1 ‘‘(B) infringe any other intellectual prop2 erty right not covered by subparagraph (A) or 

3 by paragraph (5) or (6).’’. 

4 (b) REGULATIONS.—The Secretary shall issue regula5 tions requiring that the declarations required by para6 graphs (5), (6), and (7) of section 485(a) of the Tariff 

7 Act of 1930, as added by subsection (a) of this section, 

8 be made by all persons arriving in the United States with 

9 respect to articles carried on their person or contained in 

10 their baggage. 

11 SEC. 143. SEIZURE AND FORFEITURE OF DEVICES DE12 SIGNED TO CIRCUMVENT INTELLECTUAL 

13 PROPERTY RIGHTS PROTECTIONS. 

14 Section 596(c)(2) of the Tariff Act of 1930 (19 

15 U.S.C. 1595a(c)(2)) is amended— 

16 (1) in subparagraph (E), by striking ‘‘or’’; 

17 (2) in subparagraph (F), by striking the period 

18 and inserting ‘‘; or’’; and 

19 (3) by adding at the end the following: 

20 ‘‘(G) it is a technology, product, service, 

21 device, component, or part thereof the importa22 tion of which is prohibited under section 

23 1201(a)(2) of title 17, United States Code.’’. 


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1 SEC. 144. AUTHORITY OF CHIEF COUNSEL OF U.S. CUSTOMS 

2 AND BORDER PROTECTION TO REPRESENT 

3 THE UNITED STATES IN CERTAIN FOR4 FEITURE PROCEEDINGS. 

5 Title V of the Tariff Act of 1930 (19 U.S.C. 1500 

6 et seq.) is amended by inserting after section 529 the fol7 lowing: 

8 ‘‘SEC. 530. AUTHORITY OF CHIEF COUNSEL OF U.S. CUS9 TOMS AND BORDER PROTECTION TO REP10 RESENT THE UNITED STATES IN CERTAIN 

11 FORFEITURE PROCEEDINGS. 

12 ‘‘(a) IN GENERAL.—Subject to subsection (b), the 

13 Chief Counsel of U.S. Customs and Border Protection 

14 may commence, defend, or intervene in, and supervise the 

15 litigation of, any civil forfeiture proceeding under section 

16 2320(b) of title 18, United States Code, or section 526(e) 

17 of this Act. 

18 ‘‘(b) PROCEDURE FOR EXERCISE OF AUTHORITY TO

19 LITIGATE OR APPEAL.— 

20 ‘‘(1) IN GENERAL.—Prior to commencing, de21 fending, or intervening in any civil forfeiture pro22 ceeding referred to in subsection (a), the Chief 

23 Counsel shall submit a written notification to the At24 torney General with respect to the proposed pro25 ceeding. 


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1 ‘‘(2) FAILURE TO RESPOND.—If, not later than 

2 120 days after the date on which the Chief Counsel 

3 submits the notification to the Attorney General 

4 under paragraph (1), the Attorney General has 

5 failed to commence, defend, or intervene in the pro6 posed proceeding, the Chief Counsel may commence, 

7 defend, or intervene in, and supervise the litigation 

8 of, the proceeding and any appeal of the proceeding 

9 in the name of the Chief Counsel. 

10 ‘‘(3) AUTHORITY OF ATTORNEY GENERAL TO

11 INTERVENE.—Nothing in this subsection precludes 

12 the Attorney General from intervening on behalf of 

13 the United States in any civil forfeiture proceeding 

14 under section 2320(b) of title 18, United States 

15 Code, or in any appeal of such a proceeding, as may 

16 be otherwise provided by law.’’. 

17 Subtitle F—Administrative 

18 Provisions 

19 SEC. 151. ADVISORY COMMITTEE ON IMPORT SAFETY AND 

20 INTELLECTUAL PROPERTY ENFORCEMENT. 

21 (a) ESTABLISHMENT.— 

22 (1) IN GENERAL.—The Secretary, acting 

23 through the Commissioner and the Assistant Sec24 retary for U.S. Immigration and Customs Enforce25 ment, shall establish an advisory committee which 


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1 shall be known as the Advisory Committee on Im2 port Safety and Intellectual Property Rights En3 forcement. 

4 (2) MEMBERSHIP.—The Advisory Committee 

5 shall consist of 20 members appointed by the Sec6 retary. In making appointments to the Advisory 

7 Committee, the Secretary shall ensure that— 

8 (A) the membership of the Advisory Com9 mittee is representative of the individuals and 

10 organizations affected by the enforcement of 

11 import safety standards and intellectual prop12 erty rights by U.S. Customs and Border Pro13 tection and U.S. Immigration and Customs En14 forcement; 

15 (B) at least one member of the Advisory 

16 Committee is a representative of organized 

17 labor; 

18 (C) at least one member of the Advisory 

19 Committee is a representative of consumer 

20 groups; and 

21 (D) not more than 10 members of the Ad22 visory Committee belong to the same political 

23 party. 

24 (b) DUTIES.—The Advisory Committee shall— 


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1 (1) provide advice to the Secretary, the Com2 missioner, and the Assistant Secretary for U.S. Im3 migration and Customs Enforcement on all matters 

4 involving the enforcement of import safety standards 

5 and intellectual property rights by U.S. Customs 

6 and Border Protection and U.S. Immigration and 

7 Customs Enforcement; and 

8 (2) submit an annual report to the Committee 

9 on Finance of the Senate and the Committee on 

10 Ways and Means of the House of Representatives 

11 that shall— 

12 (A) describe the operations of the Advisory 

13 Committee during the preceding year; and 

14 (B) set forth any recommendations of the 

15 Advisory Committee with respect the enforce16 ment of import safety standards and intellec17 tual property rights by U.S. Customs and Bor18 der Protection and U.S. Immigration and Cus19 toms Enforcement. 

20 (c) PRESIDING OFFICERS.—The Commissioner and 

21 the Assistant Secretary for U.S. Immigration and Cus22 toms Enforcement shall jointly preside over meetings of 

23 the Advisory Committee. 


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1 SEC. 152. STAFFING ENHANCEMENTS AT U.S. CUSTOMS AND 

2 BORDER PROTECTION. 

3 There are authorized to be appropriated to U.S. Cus4 toms and Border Protection such funds as may be nec5 essary for additional personnel (as determined in accord6 ance with the Resource Allocation Model established pur7 suant to section 301(h) of the Customs Procedural Reform 

8 and Simplification Act of 1978 (19 U.S.C. 2075(h)) to 

9 carry out the additional responsibilities of U.S. Customs 

10 and Border Protection under this title regarding the im11 portation, transshipment, and exportation of counterfeit 

12 or pirated goods, goods that are the subject to exclusion 

13 orders, and goods that violate other forms of intellectual 

14 property rights. 

15 SEC. 153. STAFFING ENHANCEMENTS AT U.S. IMMIGRATION 

16 AND CUSTOMS ENFORCEMENT. 

17 There are authorized to be appropriated to U.S. Im18 migration and Customs Enforcement such funds as may 

19 be necessary for additional personnel to carry out the ad20 ditional responsibilities of U.S. Immigration and Customs 

21 Enforcement under this title regarding the enforcement 

22 of intellectual property rights, including for developing 

23 and implementing a training program with respect to the 

24 enforcement of intellectual property rights for each U.S. 

25 Immigration and Customs Enforcement attache ́ office out26 side the United States. 


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1 SEC. 154. REGULATORY AUTHORITY. 

2 The Secretary may issue such regulations as are nec3 essary to carry out this title. 

4 TITLE II—INCREASED PEN5 ALTIES FOR CERTAIN UNFAIR 

6 TRADE PRACTICES 

7 SEC. 201. INCREASED PENALTIES FOR CERTAIN UNFAIR 

8 TRADE PRACTICES. 

9 (a) EXPANDED EXCLUSION ORDERS.—Section 

10 337(d) of the Tariff Act of 1930 (19 U.S.C. 1337(d)) is 

11 amended to read as follows: 

12 ‘‘(d) EXCLUSION OF ARTICLES FROM ENTRY.— 

13 ‘‘(1) FIRST EXCLUSION ORDER.—Except as 

14 provided in paragraph (6), if the Commission deter15 mines, as a result of an investigation under this sec16 tion, that a person has violated this section, the 

17 Commission shall direct that the articles that were 

18 the subject of the investigation and are imported by 

19 that person be excluded from entry into the United 

20 States. 

21 ‘‘(2) SECOND EXCLUSION ORDER; VIOLATION

22 OF EXCLUSION ORDER.—Except as provided in para23 graph (6), if the Commission determines that a per24 son with respect to which the Commission issued an 

25 exclusion order under paragraph (1) engages in a 

26 second violation of this section or violates that excluVerDate Mar 15 2010 21:48 Nov 09, 2011 Jkt 019200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:\BILLS\S1830.IS S1830

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1 sion order, the measures described in paragraph (4) 

2 shall apply for a period of 1 year after the date of 

3 the Commission’s determination under this subpara4 graph. 

5 ‘‘(3) THIRD EXCLUSION ORDER; SUBSEQUENT

6 VIOLATIONS OF EXCLUSION ORDERS.—Except as 

7 provided in paragraph (6), if the Commission deter8 mines that a person with respect to which the Com9 mission issued an exclusion order under paragraph 

10 (1) or (2) engages in a third violation of this section, 

11 a second violation of an exclusion order issued under 

12 paragraph (1), or violates an exclusion order issued 

13 under paragraph (2), the measures described in 

14 paragraph (4) shall apply on and after the date of 

15 the Commission’s determination under this subpara16 graph. 

17 ‘‘(4) MEASURES DESCRIBED.—The measures 

18 described in this paragraph are the following: 

19 ‘‘(A) EXPANDED EXCLUSION ORDER.—The 

20 Commission shall direct that articles excluded 

21 pursuant to an exclusion order under this sub22 section, or that were the subject of an investiga23 tion relating to a second or third violation of 

24 this section, be excluded from entry into the 

25 United States if the articles are imported by— 


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1 ‘‘(i) the person that violated this sec2 tion or an exclusion order issued under 

3 this subsection; 

4 ‘‘(ii) any officer or member of the 

5 board of directors of a person described in 

6 clause (i); or 

7 ‘‘(iii) any person that owns or con8 trols, or is owned or controlled by, a per9 son described in clause (i). 

10 ‘‘(B) VISA BAN.—The Secretary of State 

11 shall deny a visa to, and the Secretary of 

12 Homeland Security shall exclude from the 

13 United States, any alien that is any officer or 

14 member of the board of directors of the person 

15 that violated this section or an exclusion order 

16 issued under this subsection. 

17 ‘‘(5) LIMITATIONS.—The authority of the Com18 mission to order an exclusion from entry of articles 

19 under paragraph (1), (2), or (3) shall be limited to 

20 articles imported by persons specified in paragraph 

21 (1), (2), or (3), as the case may be, unless the Com22 mission determines that— 

23 ‘‘(A) a general exclusion from entry of ar24 ticles is necessary to prevent circumvention of 


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1 an exclusion order limited to articles of named 

2 persons; or 

3 ‘‘(B) there is a pattern of violation of this 

4 section and it is difficult to identify the source 

5 of infringing articles. 

6 ‘‘(6) EXCEPTION.—If the Commission deter7 mines that articles should not be excluded from 

8 entry into the United States under paragraph (1), 

9 (2), or (3), after considering the effect of the exclu10 sion of such articles on the public health and wel11 fare, competitive conditions in the United States 

12 economy, the production of like or directly competi13 tive articles in the United States, and United States 

14 consumers— 

15 ‘‘(A) the Commission shall not be required 

16 to direct that such articles be excluded from 

17 entry; and 

18 ‘‘(B) in case of a determination that arti19 cles should not be excluded from entry under 

20 paragraph (2) or (3), the Secretary of State 

21 shall not be required to deny a visa to, and the 

22 Secretary of Homeland Security shall not be re23 quired to exclude from the United States, an 

24 alien pursuant to paragraph (2) or (3), as the 

25 case may be. 


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1 ‘‘(7) NOTIFICATION TO OTHER AGENCIES.— 

2 ‘‘(A) EXCLUSION OF ARTICLES.—The 

3 Commission shall promptly notify the Commis4 sioner responsible for U.S. Customs and Border 

5 Protection of a determination of the Commis6 sion under paragraph (1), (2), or (3) to direct 

7 articles to be excluded from the United States 

8 and, upon receipt of such notice, the Commis9 sioner shall refuse the entry of the articles. 

10 ‘‘(B) VISA BANS.—The Commission shall 

11 promptly notify the Secretary of State and the 

12 Secretary of Homeland Security of a determina13 tion under paragraph (2) or (3) and, upon re14 ceipt of such notice, the Secretary of State shall 

15 deny a visa to, and the Secretary of Homeland 

16 Security shall exclude from the United States, 

17 any alien excluded from entry into the United 

18 States pursuant to paragraph (2) or (3), as the 

19 case may be.’’. 

20 (b) PENALTIES FOR VIOLATING CEASE AND DESIST

21 ORDERS.—Section 337(f) of the Tariff Act of 1930 (19 

22 U.S.C. 1337(f)) is amended— 

23 (1) in paragraph (1), by striking ‘‘, or in lieu 

24 of,’’; and 


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1 (2) in paragraph (2), by striking ‘‘$100,000, 

2 twice’’ and inserting ‘‘$500,000 or three times’’. 

3 (c) CONFORMING AMENDMENT.—Section 337(k) of 

4 the Tariff Act of 1930 (19 U.S.C. 1337(k)) is amended 

5 by inserting ‘‘paragraphs (2) and (3) of subsection (e) 

6 and’’ after ‘‘Except as provided in’’. 

Æ 


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