Text: S.1830 — 112th Congress (2011-2012)All Bill Information (Except Text)

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Introduced in Senate (11/08/2011)


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.

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

SECTION 1. Short title; table of contents.

(a) Short title.—This Act may be cited as the “Protect American Innovation Act of 2011”.

(b) Table of contents.—The table of contents for this Act is as follows:


Sec. 1. Short title; table of contents.

Sec. 101. Definitions.

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.

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.

Sec. 131. International training and technical assistance enhancements.

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.

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.

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

SEC. 101. Definitions.

In this title:

(1) ADVISORY COMMITTEE.—The term “Advisory Committee” means the Advisory Committee on Import Safety and Intellectual Property Rights Enforcement established pursuant to section 151.

(2) COMMISSIONER.—The term “Commissioner” means the Commissioner responsible for U.S. Customs and Border Protection.

(3) COUNTERFEITING; COUNTERFEIT GOODS.—

(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. 

(B) COUNTERFEIT GOODS.—The term “counterfeit goods” means goods described in subparagraph (A).

(4) DIRECTOR.—The term “Director” means the Director of Intellectual Property Rights Enforcement of the Department of the Treasury established under section 111.

(5) ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS.—The term “enforcement of intellectual property rights” means activities to enforce—

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

(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)).

(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.

(7) PIRACY; PIRATED GOODS.—

(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.

(B) PIRATED GOODS.—The term “pirated goods” means copies or phonorecords described in subparagraph (A).

(8) SECRETARY.—Except as otherwise provided, the term “Secretary” means the Secretary of the Treasury.

(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.

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.

(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.

(c) Duties.—The Director shall—

(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;

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

(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;

(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; and

(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.

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.—

(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.

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

(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;

(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; and

(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.

(b) U.S. Immigration and Customs Enforcement intellectual property rights coordinator.—

(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.

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

(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;

(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; and

(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.

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—

(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;

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

(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.

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.

(b) Identification of technologies and sources of training.—In consultation with the Advisory Committee, the Commissioner shall identify—

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

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

(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).

SEC. 123. Disclosure of information and samples of shipments to intellectual property owners.

The Commissioner shall prescribe regulations to—

(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—

(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; or

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

(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—

(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);

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

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

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

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

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.

(b) Simultaneous recordation.—

(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—

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

(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.

(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.

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.

(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.

(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.

(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.

(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).

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.

(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—

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

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

(B) other law enforcement sources; and

(C) the private sector;

(2) establish criteria under which the database should be made available—

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

(B) for intelligence purposes; and

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

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

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

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

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

(c) Consultations with Advisory Committee.—The Commissioner shall consult with the Advisory Committee on the development of criteria for the database.

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))—

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

(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.

(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.

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—

(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;

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

(3) any recommendations with respect to whether—

(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; and

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

(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—

(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; and

(B) to collect such fines.

(b) Effective collection techniques.—In this section, the term “effective collection techniques” includes—

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

(2) seizure of property acquired with such proceeds;

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

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

(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—

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

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

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

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

SEC. 131. International training and technical assistance enhancements.

The Secretary shall take the necessary steps—

(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—

(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; and

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

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

(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;

(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;

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

(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.

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—

(1) in the section heading, by inserting “or protected by copyright” after “trademark”;

(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”; and

(3) in subsection (f)—

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

“(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.”;

(B) by redesignating paragraph (4) as paragraph (5); and

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

“(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.”.

(b) Conforming amendments.—Title 17, United States Code, is amended—

(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”;

(2) in section 506(c), by inserting “, exports, or transships” after “imports”;

(3) in section 511(a), by inserting “, exporting, or transshipping” after “importing”;

(4) in section 602—

(A) in the section heading, by striking “or exportation” and inserting “, exportation, or transshipment”; and

(B) in subsection (a)—

(i) in paragraph (2)—

(I) in the paragraph heading, by striking “or exportation” and inserting “, exportation, or transshipment”; and

(II) by striking “or exportation from the United States” and inserting “, exportation from the United States, or transshipment through the United States”; and

(ii) in paragraph (3)—

(I) in subparagraph (A), by striking “or exportation” and inserting “, exportation, or transshipment”; and

(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”;

(5) in section 603—

(A) in the section heading, by striking “Importation prohibitions” and inserting “Prohibitions on importation, exportation, and transshipment”;

(B) in subsection (a), by inserting “, exportation, and transshipment” after “importation”;

(C) in subsection (b), by inserting “, exportation, or transshipment” after “importation” each place it appears; and

(D) in subsection (c)—

(i) by inserting “, exported, or transshipped” after “imported” each place it appears; and

(ii) by inserting “, exportation, or transshipped” after “importation”;

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

“CHAPTER 6MANUFACTURING 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:


“602. Infringing importation, exportation, and transshipment of copies or phonorecords.

“603. Prohibitions on importation, exportation, and transshipment: Enforcement and disposition of excluded articles.”;


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

“6. Manufacturing Requirements, Importation, Exportation, and Transshipment
601”.



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—

(1) in paragraph (1), by striking “Whether” and inserting “whether”;

(2) in paragraph (2), by striking “That” and inserting “that”;

(3) in paragraph (3)—

(A) by striking “That” and inserting “that”; and

(B) by striking “and” after the semicolon;

(4) in paragraph (4)—

(A) by striking “That” and inserting “that”; and

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

(5) by adding at the end the following:

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

“(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; and

“(7) that the merchandise does not—

“(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; or

“(B) infringe any other intellectual property right not covered by subparagraph (A) or by paragraph (5) or (6).”.

(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.

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—

(1) in subparagraph (E), by striking “or”;

(2) in subparagraph (F), by striking the period and inserting “; or”; and

(3) by adding at the end the following:

“(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.”.

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:

“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.

“(b) Procedure for exercise of authority To litigate or appeal.—

“(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.

“(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.

“(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.”.

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

(a) Establishment.—

(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.

(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—

(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;

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

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

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

(b) Duties.—The Advisory Committee shall—

(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; and

(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—

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

(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.

(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.

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.

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 attaché office outside the United States.

SEC. 154. Regulatory authority.

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

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:

“(d) Exclusion of articles from entry.—

“(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.

“(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.

“(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.

“(4) MEASURES DESCRIBED.—The measures described in this paragraph are the following:

“(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—

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

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

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

“(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.

“(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—

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

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

“(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—

“(A) the Commission shall not be required to direct that such articles be excluded from entry; and

“(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.

“(7) NOTIFICATION TO OTHER AGENCIES.—

“(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.

“(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.”.

(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—

(1) in paragraph (1), by striking “, or in lieu of,”; and

(2) in paragraph (2), by striking “$100,000, twice” and inserting “$500,000 or three times”.

(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”.