S 1830 ISCommentsClose CommentsPermalink

112th CONGRESSCommentsClose CommentsPermalink

1st SessionCommentsClose CommentsPermalink

S. 1830CommentsClose CommentsPermalink

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

IN THE SENATE OF THE UNITED STATESCommentsClose CommentsPermalink

November 8, 2011CommentsClose CommentsPermalink

Ms. STABENOW introduced the following bill; which was read twice and referred to the Committee on FinanceCommentsClose CommentsPermalink

A BILLCommentsClose CommentsPermalink

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

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title- This Act may be cited as the ‘Protect American Innovation Act of 2011’.CommentsClose CommentsPermalink





(b) Table of Contents- The table of contents for this Act is as follows:CommentsClose CommentsPermalink





Sec. 1. Short title; table of contents.CommentsClose CommentsPermalink

TITLE I--STRENGTHENING ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS

Subtitle A--Definitions

Sec. 101. Definitions.CommentsClose CommentsPermalink

Subtitle B--Coordination of Enforcement of Intellectual Property Rights

Sec. 111. Director of Intellectual Property Rights Enforcement.CommentsClose CommentsPermalink





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

Subtitle C--Regulatory and Policy Improvements With Respect to Combating Counterfeiting and Piracy

Sec. 121. Identification of certain unlawful goods.CommentsClose CommentsPermalink





Sec. 122. Training in new technologies.CommentsClose CommentsPermalink





Sec. 123. Disclosure of information and samples of shipments to intellectual property owners.CommentsClose CommentsPermalink





Sec. 124. Improvements to recordation process.CommentsClose CommentsPermalink





Sec. 125. Identification of low-risk importers.CommentsClose CommentsPermalink





Sec. 126. ‘Watch List’ database.CommentsClose CommentsPermalink





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





Sec. 128. Report on effective collection techniques.CommentsClose CommentsPermalink

Subtitle D--Training Enhancements

Sec. 131. International training and technical assistance enhancements.CommentsClose CommentsPermalink

Subtitle E--New Legal Tools for Border Enforcement

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





Sec. 142. Declarations regarding counterfeit and infringing merchandise.CommentsClose CommentsPermalink





Sec. 143. Seizure and forfeiture of devices designed to circumvent intellectual property rights protections.CommentsClose CommentsPermalink





Sec. 144. Authority of Chief Counsel of U.S. Customs and Border Protection to represent the United States in certain forfeiture proceedings.CommentsClose CommentsPermalink

Subtitle F--Administrative Provisions

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





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





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





Sec. 154. Regulatory authority.CommentsClose CommentsPermalink

TITLE II--INCREASED PENALTIES FOR CERTAIN UNFAIR TRADE PRACTICES

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

TITLE I--STRENGTHENING ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTSCommentsClose CommentsPermalink

Subtitle A--DefinitionsCommentsClose CommentsPermalink

SEC. 101. DEFINITIONS.

In this title:CommentsClose CommentsPermalink





(1) ADVISORY COMMITTEE- The term ‘Advisory Committee’ means the Advisory Committee on Import Safety and Intellectual Property Rights Enforcement established pursuant to section 151.CommentsClose CommentsPermalink





(2) COMMISSIONER- The term ‘Commissioner’ means the Commissioner responsible for U.S. Customs and Border Protection.CommentsClose CommentsPermalink





(3) COUNTERFEITING; COUNTERFEIT GOODS-CommentsClose CommentsPermalink





(A) COUNTERFEITING- The term ‘counterfeiting’ means activities related to production of or trafficking in goods, including packaging, that bear a spurious mark or designation that is identical to or substantially indistinguishable from a mark or designation protected under the trademark laws or related laws.CommentsClose CommentsPermalink





(B) COUNTERFEIT GOODS- The term ‘counterfeit goods’ means goods described in subparagraph (A).CommentsClose CommentsPermalink





(4) DIRECTOR- The term ‘Director’ means the Director of Intellectual Property Rights Enforcement of the Department of the Treasury established under section 111.CommentsClose CommentsPermalink





(5) ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS- The term ‘enforcement of intellectual property rights’ means activities to enforce--CommentsClose CommentsPermalink





(A) copyrights, patents, trademarks, and other forms of intellectual property, including activities to control counterfeiting and piracy; andCommentsClose CommentsPermalink





(B) exclusion orders issued by the United States International Trade Commission by reason of any of subparagraphs (B) through (E) of subsection (a)(1) of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337(a)(1) (B) through (E)).CommentsClose CommentsPermalink





(6) EXCLUSION ORDER- The term ‘exclusion order’ means an order of the United States International Trade Commission issued under section 337 (d) or (e) of the Tariff Act of 1930 (19 U.S.C. 1337 (d) and (e)) to exclude goods from entry into the United States.CommentsClose CommentsPermalink





(7) PIRACY; PIRATED GOODS-CommentsClose CommentsPermalink





(A) PIRACY- The term ‘piracy’ means activities related to production of or trafficking in unauthorized copies or phonorecords of works protected under title 17, United States Code, or related laws.CommentsClose CommentsPermalink





(B) PIRATED GOODS- The term ‘pirated goods’ means copies or phonorecords described in subparagraph (A).CommentsClose CommentsPermalink





(8) SECRETARY- Except as otherwise provided, the term ‘Secretary’ means the Secretary of the Treasury.CommentsClose CommentsPermalink





(9) TRANSSHIPMENT- The term ‘transshipment’ means the shipment of goods through one country that is an intermediate destination to another country that is the final destination of the goods.CommentsClose CommentsPermalink

Subtitle B--Coordination of Enforcement of Intellectual Property RightsCommentsClose CommentsPermalink

SEC. 111. DIRECTOR OF INTELLECTUAL PROPERTY RIGHTS ENFORCEMENT.

(a) Establishment- There is established within the Department of the Treasury the position of Director of Intellectual Property Rights Enforcement.CommentsClose CommentsPermalink





(b) Appointment- The Director shall be appointed by the Secretary, and shall be responsible to and shall report directly to the Deputy Secretary of the Treasury.CommentsClose CommentsPermalink





(c) Duties- The Director shall--CommentsClose CommentsPermalink





(1) coordinate all activities of the Department of the Treasury involving the enforcement of intellectual property rights and coordinate with U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement with respect to such enforcement;CommentsClose CommentsPermalink





(2) coordinate the policy and regulatory changes set forth in this title;CommentsClose CommentsPermalink





(3) serve as staff representative of the Department of the Treasury in interagency bodies with responsibility for coordination of activities involving the enforcement of intellectual property rights;CommentsClose CommentsPermalink





(4) conduct an evaluation of the effectiveness of the organizational structure of U.S. Customs and Border Protection for reducing the entry into the United States of counterfeit or pirated goods, goods in violation of exclusion orders, and other goods in violation of other intellectual property rights; andCommentsClose CommentsPermalink





(5) carry out other duties, as assigned by the Secretary or Deputy Secretary of the Treasury, to improve the effectiveness of the efforts of the Department of the Treasury under the laws within its jurisdiction with respect to the enforcement of intellectual property rights.CommentsClose CommentsPermalink

SEC. 112. U.S. CUSTOMS AND BORDER PROTECTION AND U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT INTELLECTUAL PROPERTY RIGHTS COORDINATORS.

(a) U.S. Customs and Border Protection Intellectual Property Rights Coordinator-CommentsClose CommentsPermalink





(1) APPOINTMENT- The Commissioner shall appoint a U.S. Customs and Border Protection coordinator of intellectual property rights enforcement activities (in this subtitle referred to as the ‘U.S. Customs and Border Protection Intellectual Property Rights Coordinator’), who shall report directly to the Commissioner.CommentsClose CommentsPermalink





(2) DUTIES- The U.S. Customs and Border Protection Intellectual Property Rights Coordinator shall--CommentsClose CommentsPermalink





(A) coordinate all efforts, at all ports of entry and elsewhere, carried out by U.S. Customs and Border Protection with respect to the enforcement of intellectual property rights, including training and staffing;CommentsClose CommentsPermalink





(B) supervise the implementation of those aspects of the regulatory and policy reforms set out in this title that involve U.S. Customs and Border Protection and submit a report on such activities to the Director annually; andCommentsClose CommentsPermalink





(C) carry out such other duties, as assigned by the Commissioner, the purpose of which are to improve the performance of U.S. Customs and Border Protection with respect to the enforcement of intellectual property rights.CommentsClose CommentsPermalink





(b) U.S. Immigration and Customs Enforcement Intellectual Property Rights Coordinator-CommentsClose CommentsPermalink





(1) APPOINTMENT- The Assistant Secretary for U.S. Immigration and Customs Enforcement shall appoint a U.S. Immigration and Customs Enforcement coordinator of intellectual property enforcement activities (in this subtitle referred to as the ‘U.S. Immigration and Customs Enforcement Intellectual Property Rights Coordinator’), who shall report directly to the Assistant Secretary for U.S. Immigration and Customs Enforcement.CommentsClose CommentsPermalink





(2) DUTIES- The U.S. Immigration and Customs Enforcement Intellectual Property Rights Coordinator shall--CommentsClose CommentsPermalink





(A) coordinate all efforts carried out by U.S. Immigration and Customs Enforcement with respect to the enforcement of intellectual property rights, including training and staffing;CommentsClose CommentsPermalink





(B) supervise the implementation of those aspects of the regulatory and policy reforms set out in this title that involve U.S. Immigration and Customs Enforcement; andCommentsClose CommentsPermalink





(C) carry out such other duties, as assigned by the Assistant Secretary for U.S. Immigration and Customs Enforcement, the purpose which are to improve the performance of U.S. Immigration and Customs Enforcement with respect to the enforcement of intellectual property rights.CommentsClose CommentsPermalink

Subtitle C--Regulatory and Policy Improvements With Respect to Combating Counterfeiting and PiracyCommentsClose CommentsPermalink

SEC. 121. IDENTIFICATION OF CERTAIN UNLAWFUL GOODS.

Not later than 180 days after the date of the enactment of this Act, the Secretary, acting through the Commissioner, shall prescribe regulations to apply risk assessment modeling techniques to border enforcement activities with respect to combating counterfeiting and piracy. Such efforts shall include--CommentsClose CommentsPermalink





(1) preparing a report on and evaluation of the pilot project of U.S. Customs and Border Protection with respect to shipments of counterfeit or pirated products;CommentsClose CommentsPermalink





(2) expanding the pilot project to allow for the use of the Automated Targeting System in risk assessment modeling; andCommentsClose CommentsPermalink





(3) developing a plan for the development, testing, evaluation, and continuous improvement of risk assessment modeling techniques to facilitate the enforcement of intellectual property rights.CommentsClose CommentsPermalink

SEC. 122. TRAINING IN NEW TECHNOLOGIES.

(a) Training of Personnel- The Commissioner shall consult with the Advisory Committee to determine the feasibility of training U.S. Customs and Border Protection personnel in the use of new technological means for detecting and identifying, at ports of entry, counterfeit and pirated goods, and goods that are subject to exclusion orders, whether for entry into the United States or for transshipment to other destinations.CommentsClose CommentsPermalink





(b) Identification of Technologies and Sources of Training- In consultation with the Advisory Committee, the Commissioner shall identify--CommentsClose CommentsPermalink





(1) cost-effective technologies for detecting and identifying goods described in subsection (a) at ports of entry; andCommentsClose CommentsPermalink





(2) economical sources for training U.S. Customs and Border Protection personnel in the use of such technologies.CommentsClose CommentsPermalink





(c) Regulatory and Policy Changes- The Comptroller General of the United States shall submit to Congress a report analyzing the costs and benefits of making regulatory and policy changes to enable the receipt of donations of hardware, software, equipment, and similar technologies, and the acceptance of training and other support services, from the private sector, to facilitate the training of personnel of U.S. Customs and Border Protection under subsection (a).CommentsClose CommentsPermalink

SEC. 123. DISCLOSURE OF INFORMATION AND SAMPLES OF SHIPMENTS TO INTELLECTUAL PROPERTY OWNERS.

The Commissioner shall prescribe regulations to--CommentsClose CommentsPermalink





(1) improve the process of making samples of shipments of goods suspected of violating intellectual property rights available to the owners of copyrights, trademarks, patents, and other forms of intellectual property, in an efficient and cost-effective manner, for the purpose of inspection or analysis, including by developing a process under which--CommentsClose CommentsPermalink





(A) a requirement that such an owner post a bond to receive such a sample may be waived if the value of the sample is less than $100; orCommentsClose CommentsPermalink





(B) such an owner may elect to obtain a continuous bond with respect to such samples; andCommentsClose CommentsPermalink





(2) increase disclosure to owners of copyrights, trademarks, patents, and other forms of intellectual property of information about shipments of goods that have been detained at ports of entry on suspicion that the importation into, or transshipment through, the United States of those goods would violate the intellectual property rights of such owners, including--CommentsClose CommentsPermalink





(A) providing a detailed description of the goods, including information on the packaging of the goods such as expiration dates and model, lot, batch, part, or serial numbers or universal product codes (UPC);CommentsClose CommentsPermalink





(B) providing photographs of the goods that do not mask identifying information about the goods;CommentsClose CommentsPermalink





(C) disclosing the identities and contact information of all parties involved in the shipments, including importers, exporters, declarants, consignees, freight forwarders, and warehouse owners;CommentsClose CommentsPermalink





(D) identifying points of origin and destination of the shipments; andCommentsClose CommentsPermalink





(E) providing any other documents relating to the shipments.CommentsClose CommentsPermalink

SEC. 124. IMPROVEMENTS TO RECORDATION PROCESS.

(a) Improvements in Recordation Process- The Commissioner shall prescribe regulations to ensure that the system for recordation of copyrights, trademarks, patents, and other forms of intellectual property that may be subject to recordation, does not impede the rapid seizure of goods that violate the rights of the owners of such copyrights, trademarks, patents, and other forms of intellectual property.CommentsClose CommentsPermalink





(b) Simultaneous Recordation-CommentsClose CommentsPermalink





(1) IN GENERAL- In consultation with the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, and the Register of Copyrights, the Commissioner shall develop a system pursuant to which--CommentsClose CommentsPermalink





(A) trademarks may be recorded with U.S. Customs and Border Protection simultaneously with the issuance of trademark registration; andCommentsClose CommentsPermalink





(B) copyrights of audiovisual works and sound recordings may be recorded with U.S. Customs and Border Protection simultaneously with the filing of an application for a certificate of copyright registration or an application for registration of another intellectual property right under title 17, United States Code.CommentsClose CommentsPermalink





(2) DEFINITIONS- In this subsection, the terms ‘audiovisual works’ and ‘sound recordings’ have the meanings given those terms in section 101 of title 17, United States Code.CommentsClose CommentsPermalink

SEC. 125. IDENTIFICATION OF LOW-RISK IMPORTERS.

(a) In General- The Commissioner shall develop a voluntary certification program for importers that have taken specific measures to strengthen and protect their supply chains to prevent the infiltration into the international supply chain of counterfeit and pirated goods, goods that are the subject to exclusion orders, and goods that violate other forms of intellectual property rights.CommentsClose CommentsPermalink





(b) Self-certification- The voluntary certification program developed under subsection (a) shall rely primarily on self-certification by importers in determining the eligibility of importers for the program.CommentsClose CommentsPermalink





(c) Third-Party Verifications- The Commissioner shall identify any circumstances, such as importation from any country with a history of being identified under section 182 of the Trade Act of 1974 (19 U.S.C. 2242) as denying adequate and effective protection of intellectual property rights, under which third-party verifications shall be required to determine the eligibility of importers for the voluntary certification program.CommentsClose CommentsPermalink





(d) Benefits- An importer determined to be eligible for the voluntary certification program and to have taken the measures required under subsection (a) may receive benefits with respect to customs requirements, such as reduced inspections from U.S. Customs and Border Protection.CommentsClose CommentsPermalink





(e) Definition- In this section, the term ‘international supply chain’ has the meaning given that term in section 2 of the Security and Accountability for Every Port Act of 2006 (6 U.S.C. 901).CommentsClose CommentsPermalink

SEC. 126. ‘WATCH LIST’ DATABASE.

(a) In General- The Secretary, acting through the Commissioner, shall develop and implement a database of importers, shippers, freight forwarders, and other participants in the import, export, and transshipment process, whose activities the Commissioner determines merit special scrutiny at ports of entry because of the risk of importation, exportation, or transshipment of goods that violate intellectual property rights or exclusion orders.CommentsClose CommentsPermalink





(b) Plan- Not later than 180 days after the date of the enactment of this Act, the Secretary, acting through the Commissioner, shall develop a plan to implement the database required under subsection (a). The plan shall--CommentsClose CommentsPermalink





(1) identify legitimate information sources to be used in determining whether to place persons on the database from--CommentsClose CommentsPermalink





(A) within U.S. Customs and Border Protection;CommentsClose CommentsPermalink





(B) other law enforcement sources; andCommentsClose CommentsPermalink





(C) the private sector;CommentsClose CommentsPermalink





(2) establish criteria under which the database should be made available--CommentsClose CommentsPermalink





(A) to qualified officers of U.S. Customs and Border Protection and other law enforcement agencies;CommentsClose CommentsPermalink





(B) for intelligence purposes; andCommentsClose CommentsPermalink





(C) for use in identifying shipments for enhanced inspection;CommentsClose CommentsPermalink





(3) identify any regulatory or policy changes that are necessary to make the database operational;CommentsClose CommentsPermalink





(4) contain any recommendations for statutory changes to improve the effectiveness of the database;CommentsClose CommentsPermalink





(5) include an estimate of the resources necessary to implement and operate the database and to evaluate its effectiveness; andCommentsClose CommentsPermalink





(6) include a timetable for implementation of the database.CommentsClose CommentsPermalink





(c) Consultations With Advisory Committee- The Commissioner shall consult with the Advisory Committee on the development of criteria for the database.CommentsClose CommentsPermalink

SEC. 127. CIVIL FINES FOR IMPORTATION OF PIRATED OR COUNTERFEIT GOODS.

(a) Limitation on Mitigation, Dismissal, and Vacation of Fines- Unless otherwise ordered by a court of competent jurisdiction, any civil fine imposed pursuant to section 526(f) of the Tariff Act of 1930 (19 U.S.C. 1526(f))--CommentsClose CommentsPermalink





(1) may not be mitigated, except pursuant to regulations issued by the Commissioner; andCommentsClose CommentsPermalink





(2) may not be dismissed or vacated, except pursuant to regulations issued by the Commissioner that require the specific approval of the Commissioner or the Commissioner’s designee for such dismissal or vacation.CommentsClose CommentsPermalink





(b) Extraordinary Cases- In issuing regulations under subsection (a), the Commissioner shall ensure that the mitigation, dismissal, or vacation of civil fines for involvement in the importation, exportation, or transshipment of pirated or counterfeit goods is limited to extraordinary cases in which the interests of justice will clearly be served by such action.CommentsClose CommentsPermalink

SEC. 128. REPORT ON EFFECTIVE COLLECTION TECHNIQUES.

(a) In General- The Commissioner shall submit to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives a report on--CommentsClose CommentsPermalink





(1) the extent to which U.S. Customs and Border Protection uses effective collection techniques for collecting civil fines imposed on persons that import, export, or transship pirated or counterfeit goods;CommentsClose CommentsPermalink





(2) any recommendations with respect to improving the use of such techniques by U.S. Customs and Border Protection;CommentsClose CommentsPermalink





(3) any recommendations with respect to whether--CommentsClose CommentsPermalink





(A) owners of copyrights or trademarks should be authorized to pursue and collect fines imposed as a result of activities that violate such copyrights or trademarks; andCommentsClose CommentsPermalink





(B) such owners should be allowed to retain some or all of any funds so collected; andCommentsClose CommentsPermalink





(4) any other recommendations for statutory, regulatory, or policy changes not under the control of U.S. Customs and Border Protection to improve the agency’s ability--CommentsClose CommentsPermalink





(A) to impose civil fines on persons that import, export, or transship pirated or counterfeit goods, at levels that would deter such importation, exportation, and transshipment; andCommentsClose CommentsPermalink





(B) to collect such fines.CommentsClose CommentsPermalink





(b) Effective Collection Techniques- In this section, the term ‘effective collection techniques’ includes--CommentsClose CommentsPermalink





(1) confiscation of the proceeds of actions for which civil fines can be imposed;CommentsClose CommentsPermalink





(2) seizure of property acquired with such proceeds;CommentsClose CommentsPermalink





(3) imposition of liens on the real or personal property of persons upon whom civil fines are imposed;CommentsClose CommentsPermalink





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





(5) in any case in which an entity is liable and has no assets or is no longer in business, holding liable any person who--CommentsClose CommentsPermalink





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





(B) in the case of a corporation, held at least 5 percent (by vote or value) of the capital structure of the corporation; orCommentsClose CommentsPermalink





(C) in the case of any other entity, held interests representing at least 5 percent of the capital structure of the entity; andCommentsClose CommentsPermalink





(6) engaging private sector entities to collect civil fines imposed.CommentsClose CommentsPermalink

Subtitle D--Training EnhancementsCommentsClose CommentsPermalink

SEC. 131. INTERNATIONAL TRAINING AND TECHNICAL ASSISTANCE ENHANCEMENTS.

The Secretary shall take the necessary steps--CommentsClose CommentsPermalink





(1) to increase staffing and resources of offices of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement engaged in providing training and technical assistance to the customs services and enforcement agencies of other countries in order to improve the effectiveness of such customs services and enforcement agencies with respect to--CommentsClose CommentsPermalink





(A) detecting and intercepting the exportation, importation, and transshipment of counterfeit or pirated goods, goods that are the subject to exclusion orders, and goods that violate other forms of intellectual property rights; andCommentsClose CommentsPermalink





(B) imposing penalties on persons that export, import, or transship counterfeit or pirated goods at levels that will deter such exportation, importation, and transshipment; andCommentsClose CommentsPermalink





(2) to ensure that the Director, in order to make the most efficient and effective use of training and technical assistance resources--CommentsClose CommentsPermalink





(A) coordinates the international training and technical assistance activities of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement as part of the Director’s coordination responsibilities under section 111;CommentsClose CommentsPermalink





(B) gives priority to international training and technical assistance activities in countries in which such activities can be carried out most effectively and with the greatest benefit to protecting the intellectual property rights of United States persons;CommentsClose CommentsPermalink





(C) takes steps to minimize duplication, overlap, or inconsistency of international training and technical assistance efforts; andCommentsClose CommentsPermalink





(D) coordinates such activities of the Department of the Treasury with international training and technical assistance activities against counterfeiting and piracy carried out by other agencies, and enhances the participation of Department of the Treasury personnel in interagency training and technical assistance activities in this field.CommentsClose CommentsPermalink

Subtitle E--New Legal Tools for Border EnforcementCommentsClose CommentsPermalink

SEC. 141. EXPANDED PROHIBITIONS ON IMPORTATION, EXPORTATION, AND TRANSSHIPMENT OF COUNTERFEIT OR PIRATED GOODS.

(a) In General- Section 526 of the Tariff Act of 1930 (19 U.S.C. 1526) is amended--CommentsClose CommentsPermalink





(1) in the section heading, by inserting ‘or protected by copyright’ after ‘trademark’;CommentsClose CommentsPermalink





(2) in subsection (e), by striking ‘Any such merchandise’ and all that follows through ‘15 U.S.C. 1124),’ and inserting ‘Any merchandise bearing a counterfeit mark (as defined in section 2320(e) of title 18, United States Code) that is imported into the United States, exported out of the United States, or transshipped through the United States’; andCommentsClose CommentsPermalink





(3) in subsection (f)--CommentsClose CommentsPermalink





(A) by striking paragraph (1) and inserting the following:CommentsClose CommentsPermalink





‘(1) Any person who engages in, directs, assists financially or otherwise, or aids and abets the importation, exportation, or transshipment of merchandise that is seized under subsection (e) of this section, or under regulations issued pursuant to section 603(c) of title 17, United States Code, shall be subject to a civil fine.’;CommentsClose CommentsPermalink





(B) by redesignating paragraph (4) as paragraph (5); andCommentsClose CommentsPermalink





(C) by inserting after paragraph (3) the following:CommentsClose CommentsPermalink





‘(4) When the seizure of merchandise that results in the imposition of a civil fine is made under circumstances indicating that the importation, exportation, or transshipment of the merchandise was for the purpose of sale or public distribution of the merchandise, the maximum fine amounts set forth in paragraphs (2) and (3) shall be tripled.’.CommentsClose CommentsPermalink





(b) Conforming Amendments- Title 17, United States Code, is amended--CommentsClose CommentsPermalink





(1) in section 501(a), by inserting ‘, exports copies or phonorecords from the United States, or transships copies or phonorecords through the United States’ after ‘into the United States’;CommentsClose CommentsPermalink





(2) in section 506(c), by inserting ‘, exports, or transships’ after ‘imports’;CommentsClose CommentsPermalink





(3) in section 511(a), by inserting ‘, exporting, or transshipping’ after ‘importing’;CommentsClose CommentsPermalink





(4) in section 602--CommentsClose CommentsPermalink





(A) in the section heading, by striking ‘or exportation’ and inserting ‘, exportation, or transshipment’; andCommentsClose CommentsPermalink





(B) in subsection (a)--CommentsClose CommentsPermalink





(i) in paragraph (2)--CommentsClose CommentsPermalink





(I) in the paragraph heading, by striking ‘OR EXPORTATION’ and inserting ‘, EXPORTATION, OR TRANSSHIPMENT’; andCommentsClose CommentsPermalink





(II) by striking ‘or exportation from the United States’ and inserting ‘, exportation from the United States, or transshipment through the United States’; andCommentsClose CommentsPermalink





(ii) in paragraph (3)--CommentsClose CommentsPermalink





(I) in subparagraph (A), by striking ‘or exportation’ and inserting ‘, exportation, or transshipment’; andCommentsClose CommentsPermalink





(II) in subparagraph (B), by striking ‘or exportation, for the private use of the importer or exporter’ and inserting ‘, exportation, or transshipment, for the private use of the importer, exporter, or person transshipping copies or phonorecords’;CommentsClose CommentsPermalink





(5) in section 603--CommentsClose CommentsPermalink





(A) in the section heading, by striking ‘Importation prohibitions’ and inserting ‘Prohibitions on importation, exportation, and transshipment’;CommentsClose CommentsPermalink





(B) in subsection (a), by inserting ‘, exportation, and transshipment’ after ‘importation’;CommentsClose CommentsPermalink





(C) in subsection (b), by inserting ‘, exportation, or transshipment’ after ‘importation’ each place it appears; andCommentsClose CommentsPermalink





(D) in subsection (c)--CommentsClose CommentsPermalink





(i) by inserting ‘, exported, or transshipped’ after ‘imported’ each place it appears; andCommentsClose CommentsPermalink





(ii) by inserting ‘, exportation, or transshipped’ after ‘importation’;CommentsClose CommentsPermalink





(6) by amending the chapter heading for chapter 6 to read as follows:CommentsClose CommentsPermalink

‘CHAPTER 6--MANUFACTURING REQUIREMENTS, IMPORTATION, EXPORTATION, AND TRANSSHIPMENT’;

(7) in the table of sections for chapter 6, by amending the items relating to sections 602 and 603 to read as follows:CommentsClose CommentsPermalink





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





‘603. Prohibitions on importation, exportation, and transshipment: Enforcement and disposition of excluded articles.’;CommentsClose CommentsPermalink





andCommentsClose CommentsPermalink





(8) in the table of chapters, by amending the item relating to chapter 6 to read as follows:CommentsClose CommentsPermalink

601’.CommentsClose CommentsPermalink

SEC. 142. DECLARATIONS REGARDING COUNTERFEIT AND INFRINGING MERCHANDISE.

(a) Declarations- Section 485(a) of the Tariff Act of 1930 (19 U.S.C. 1485(a)) is amended--CommentsClose CommentsPermalink





(1) in paragraph (1), by striking ‘Whether’ and inserting ‘whether’;CommentsClose CommentsPermalink





(2) in paragraph (2), by striking ‘That’ and inserting ‘that’;CommentsClose CommentsPermalink





(3) in paragraph (3)--CommentsClose CommentsPermalink





(A) by striking ‘That’ and inserting ‘that’; andCommentsClose CommentsPermalink





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





(4) in paragraph (4)--CommentsClose CommentsPermalink





(A) by striking ‘That’ and inserting ‘that’; andCommentsClose CommentsPermalink





(B) by striking the period and inserting a semicolon; andCommentsClose CommentsPermalink





(5) by adding at the end the following:CommentsClose CommentsPermalink





‘(5) that the merchandise being imported does not bear a counterfeit mark (as defined in section 2320(e) of title 18, United States Code);CommentsClose CommentsPermalink





‘(6) that the merchandise is not an infringing copy or phonorecord or one whose making would have constituted an infringement of copyright if title 17, United States Code, had applied; andCommentsClose CommentsPermalink





‘(7) that the merchandise does not--CommentsClose CommentsPermalink





‘(A) violate an exclusion order of the United States International Trade Commission under section 337 (d) or (e) by reason of any of subparagraphs (B) through (E) of subsection (a)(1) of section 337; orCommentsClose CommentsPermalink





‘(B) infringe any other intellectual property right not covered by subparagraph (A) or by paragraph (5) or (6).’.CommentsClose CommentsPermalink





(b) Regulations- The Secretary shall issue regulations requiring that the declarations required by paragraphs (5), (6), and (7) of section 485(a) of the Tariff Act of 1930, as added by subsection (a) of this section, be made by all persons arriving in the United States with respect to articles carried on their person or contained in their baggage.CommentsClose CommentsPermalink

SEC. 143. SEIZURE AND FORFEITURE OF DEVICES DESIGNED TO CIRCUMVENT INTELLECTUAL PROPERTY RIGHTS PROTECTIONS.

Section 596(c)(2) of the Tariff Act of 1930 (19 U.S.C. 1595a(c)(2)) is amended--CommentsClose CommentsPermalink





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





(2) in subparagraph (F), by striking the period and inserting ‘; or’; andCommentsClose CommentsPermalink





(3) by adding at the end the following:CommentsClose CommentsPermalink





‘(G) it is a technology, product, service, device, component, or part thereof the importation of which is prohibited under section 1201(a)(2) of title 17, United States Code.’.CommentsClose CommentsPermalink

SEC. 144. AUTHORITY OF CHIEF COUNSEL OF U.S. CUSTOMS AND BORDER PROTECTION TO REPRESENT THE UNITED STATES IN CERTAIN FORFEITURE PROCEEDINGS.

Title V of the Tariff Act of 1930 (19 U.S.C. 1500 et seq.) is amended by inserting after section 529 the following:CommentsClose CommentsPermalink

‘SEC. 530. AUTHORITY OF CHIEF COUNSEL OF U.S. CUSTOMS AND BORDER PROTECTION TO REPRESENT THE UNITED STATES IN CERTAIN FORFEITURE PROCEEDINGS.

‘(a) In General- Subject to subsection (b), the Chief Counsel of U.S. Customs and Border Protection may commence, defend, or intervene in, and supervise the litigation of, any civil forfeiture proceeding under section 2320(b) of title 18, United States Code, or section 526(e) of this Act.CommentsClose CommentsPermalink





‘(b) Procedure for Exercise of Authority To Litigate or Appeal-CommentsClose CommentsPermalink





‘(1) IN GENERAL- Prior to commencing, defending, or intervening in any civil forfeiture proceeding referred to in subsection (a), the Chief Counsel shall submit a written notification to the Attorney General with respect to the proposed proceeding.CommentsClose CommentsPermalink





‘(2) FAILURE TO RESPOND- If, not later than 120 days after the date on which the Chief Counsel submits the notification to the Attorney General under paragraph (1), the Attorney General has failed to commence, defend, or intervene in the proposed proceeding, the Chief Counsel may commence, defend, or intervene in, and supervise the litigation of, the proceeding and any appeal of the proceeding in the name of the Chief Counsel.CommentsClose CommentsPermalink





‘(3) AUTHORITY OF ATTORNEY GENERAL TO INTERVENE- Nothing in this subsection precludes the Attorney General from intervening on behalf of the United States in any civil forfeiture proceeding under section 2320(b) of title 18, United States Code, or in any appeal of such a proceeding, as may be otherwise provided by law.’.CommentsClose CommentsPermalink

Subtitle F--Administrative ProvisionsCommentsClose CommentsPermalink

SEC. 151. ADVISORY COMMITTEE ON IMPORT SAFETY AND INTELLECTUAL PROPERTY ENFORCEMENT.

(a) Establishment-CommentsClose CommentsPermalink





(1) IN GENERAL- The Secretary, acting through the Commissioner and the Assistant Secretary for U.S. Immigration and Customs Enforcement, shall establish an advisory committee which shall be known as the Advisory Committee on Import Safety and Intellectual Property Rights Enforcement.CommentsClose CommentsPermalink





(2) MEMBERSHIP- The Advisory Committee shall consist of 20 members appointed by the Secretary. In making appointments to the Advisory Committee, the Secretary shall ensure that--CommentsClose CommentsPermalink





(A) the membership of the Advisory Committee is representative of the individuals and organizations affected by the enforcement of import safety standards and intellectual property rights by U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement;CommentsClose CommentsPermalink





(B) at least one member of the Advisory Committee is a representative of organized labor;CommentsClose CommentsPermalink





(C) at least one member of the Advisory Committee is a representative of consumer groups; andCommentsClose CommentsPermalink





(D) not more than 10 members of the Advisory Committee belong to the same political party.CommentsClose CommentsPermalink





(b) Duties- The Advisory Committee shall--CommentsClose CommentsPermalink





(1) provide advice to the Secretary, the Commissioner, and the Assistant Secretary for U.S. Immigration and Customs Enforcement on all matters involving the enforcement of import safety standards and intellectual property rights by U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement; andCommentsClose CommentsPermalink





(2) submit an annual report to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives that shall--CommentsClose CommentsPermalink





(A) describe the operations of the Advisory Committee during the preceding year; andCommentsClose CommentsPermalink





(B) set forth any recommendations of the Advisory Committee with respect the enforcement of import safety standards and intellectual property rights by U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.CommentsClose CommentsPermalink





(c) Presiding Officers- The Commissioner and the Assistant Secretary for U.S. Immigration and Customs Enforcement shall jointly preside over meetings of the Advisory Committee.CommentsClose CommentsPermalink

SEC. 152. STAFFING ENHANCEMENTS AT U.S. CUSTOMS AND BORDER PROTECTION.

There are authorized to be appropriated to U.S. Customs and Border Protection such funds as may be necessary for additional personnel (as determined in accordance with the Resource Allocation Model established pursuant to section 301(h) of the Customs Procedural Reform and Simplification Act of 1978 (19 U.S.C. 2075(h)) to carry out the additional responsibilities of U.S. Customs and Border Protection under this title regarding the importation, transshipment, and exportation of counterfeit or pirated goods, goods that are the subject to exclusion orders, and goods that violate other forms of intellectual property rights.CommentsClose CommentsPermalink

SEC. 153. STAFFING ENHANCEMENTS AT U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT.

There are authorized to be appropriated to U.S. Immigration and Customs Enforcement such funds as may be necessary for additional personnel to carry out the additional responsibilities of U.S. Immigration and Customs Enforcement under this title regarding the enforcement of intellectual property rights, including for developing and implementing a training program with respect to the enforcement of intellectual property rights for each U.S. Immigration and Customs Enforcement attache office outside the United States.CommentsClose CommentsPermalink

SEC. 154. REGULATORY AUTHORITY.

The Secretary may issue such regulations as are necessary to carry out this title.CommentsClose CommentsPermalink

TITLE II--INCREASED PENALTIES FOR CERTAIN UNFAIR TRADE PRACTICESCommentsClose CommentsPermalink

SEC. 201. INCREASED PENALTIES FOR CERTAIN UNFAIR TRADE PRACTICES.

(a) Expanded Exclusion Orders- Section 337(d) of the Tariff Act of 1930 (19 U.S.C. 1337(d)) is amended to read as follows:CommentsClose CommentsPermalink





‘(d) Exclusion of Articles From Entry-CommentsClose CommentsPermalink





‘(1) FIRST EXCLUSION ORDER- Except as provided in paragraph (6), if the Commission determines, as a result of an investigation under this section, that a person has violated this section, the Commission shall direct that the articles that were the subject of the investigation and are imported by that person be excluded from entry into the United States.CommentsClose CommentsPermalink





‘(2) SECOND EXCLUSION ORDER; VIOLATION OF EXCLUSION ORDER- Except as provided in paragraph (6), if the Commission determines that a person with respect to which the Commission issued an exclusion order under paragraph (1) engages in a second violation of this section or violates that exclusion order, the measures described in paragraph (4) shall apply for a period of 1 year after the date of the Commission’s determination under this subparagraph.CommentsClose CommentsPermalink





‘(3) THIRD EXCLUSION ORDER; SUBSEQUENT VIOLATIONS OF EXCLUSION ORDERS- Except as provided in paragraph (6), if the Commission determines that a person with respect to which the Commission issued an exclusion order under paragraph (1) or (2) engages in a third violation of this section, a second violation of an exclusion order issued under paragraph (1), or violates an exclusion order issued under paragraph (2), the measures described in paragraph (4) shall apply on and after the date of the Commission’s determination under this subparagraph.CommentsClose CommentsPermalink





‘(4) MEASURES DESCRIBED- The measures described in this paragraph are the following:CommentsClose CommentsPermalink





‘(A) EXPANDED EXCLUSION ORDER- The Commission shall direct that articles excluded pursuant to an exclusion order under this subsection, or that were the subject of an investigation relating to a second or third violation of this section, be excluded from entry into the United States if the articles are imported by--CommentsClose CommentsPermalink





‘(i) the person that violated this section or an exclusion order issued under this subsection;CommentsClose CommentsPermalink





‘(ii) any officer or member of the board of directors of a person described in clause (i); orCommentsClose CommentsPermalink





‘(iii) any person that owns or controls, or is owned or controlled by, a person described in clause (i).CommentsClose CommentsPermalink





‘(B) VISA BAN- The Secretary of State shall deny a visa to, and the Secretary of Homeland Security shall exclude from the United States, any alien that is any officer or member of the board of directors of the person that violated this section or an exclusion order issued under this subsection.CommentsClose CommentsPermalink





‘(5) LIMITATIONS- The authority of the Commission to order an exclusion from entry of articles under paragraph (1), (2), or (3) shall be limited to articles imported by persons specified in paragraph (1), (2), or (3), as the case may be, unless the Commission determines that--CommentsClose CommentsPermalink





‘(A) a general exclusion from entry of articles is necessary to prevent circumvention of an exclusion order limited to articles of named persons; orCommentsClose CommentsPermalink





‘(B) there is a pattern of violation of this section and it is difficult to identify the source of infringing articles.CommentsClose CommentsPermalink





‘(6) EXCEPTION- If the Commission determines that articles should not be excluded from entry into the United States under paragraph (1), (2), or (3), after considering the effect of the exclusion of such articles on the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers--CommentsClose CommentsPermalink





‘(A) the Commission shall not be required to direct that such articles be excluded from entry; andCommentsClose CommentsPermalink





‘(B) in case of a determination that articles should not be excluded from entry under paragraph (2) or (3), the Secretary of State shall not be required to deny a visa to, and the Secretary of Homeland Security shall not be required to exclude from the United States, an alien pursuant to paragraph (2) or (3), as the case may be.CommentsClose CommentsPermalink





‘(7) NOTIFICATION TO OTHER AGENCIES-CommentsClose CommentsPermalink





‘(A) EXCLUSION OF ARTICLES- The Commission shall promptly notify the Commissioner responsible for U.S. Customs and Border Protection of a determination of the Commission under paragraph (1), (2), or (3) to direct articles to be excluded from the United States and, upon receipt of such notice, the Commissioner shall refuse the entry of the articles.CommentsClose CommentsPermalink





‘(B) VISA BANS- The Commission shall promptly notify the Secretary of State and the Secretary of Homeland Security of a determination under paragraph (2) or (3) and, upon receipt of such notice, the Secretary of State shall deny a visa to, and the Secretary of Homeland Security shall exclude from the United States, any alien excluded from entry into the United States pursuant to paragraph (2) or (3), as the case may be.’.CommentsClose CommentsPermalink





(b) Penalties for Violating Cease and Desist Orders- Section 337(f) of the Tariff Act of 1930 (19 U.S.C. 1337(f)) is amended--CommentsClose CommentsPermalink





(1) in paragraph (1), by striking ‘, or in lieu of,’; andCommentsClose CommentsPermalink





(2) in paragraph (2), by striking ‘$100,000, twice’ and inserting ‘$500,000 or three times’.CommentsClose CommentsPermalink





(c) Conforming Amendment- Section 337(k) of the Tariff Act of 1930 (19 U.S.C. 1337(k)) is amended by inserting ‘paragraphs (2) and (3) of subsection (e) and’ after ‘Except as provided in’.CommentsClose CommentsPermalink