COAC Recommends CBP Develop Automated Detention and Seizure System, IPR Portal

CBP should develop a single automated system for its detention and seizure process, as well as a portal for rightsholders and importers to allow for communication with CBP when infringement of intellectual property rights is suspected, the Commercial Customs Operations Advisory Committee said in recommendations adopted at its Dec. 7 meeting.

While the portal would be IPR- specific, the automated detention and seizure system would be used across CBP’s enforcement areas, including for forced labor, restricted goods and admissibility issues for partner government agencies such as FDA, the recommendations from COAC’s Intelligent Enforcement Subcommittee said. The portal would link ACE with CBP’s other internal systems “so the information is seamless” within CBP’s data systems, Heather Litman, a subcommittee co-chair, said at the meeting.

While the COAC doesn’t expect the detention and seizure system to “happen overnight,” in the nearer term, CBP should develop electronic exam, detention and imaging technologies as part of the automated system that officers could use to collect data onsite during an exam. “It's very important that the boots on the ground who are examining the shipments be able to upload images of the goods that they're seizing, so that they can be reviewed by the rights holders” and other entities, “such as importers” so they can “see what customs is actually holding,” Litman said.

Another near-term priority for the automated system should be electronic notices of detention that include standardized data elements, “including images as appropriate,” COAC said. Currently, the detention process is a “paper process in many instances, and the hope is that with the development of an electronic notice of detention and procedure that we can have more uniform data that is pushed out to different people involved in that, to brokers, to importers, so they know the reason that the goods are being held and they know who the contact is,” Litman said.

The system should use unique identifiers that can be referenced throughout the process by interested parties and are not subject to the restrictions of the Trade Secrets Act, the recommendations said. “This is really important,” Litman said. “At the exam stage, shipments may be identified by a container number, by a bill of lading number, by an entry number,” she said. When those mature into a seizure “that same shipment may only be recognized by an FP&F seizure number, which makes it difficult to track it throughout the entire process,” she said.

CBP also should “develop and adopt a system for receiving and using email addresses from importers and other interested parties to facilitate communication within this automated process,” the recommendations said.

The IPR portal recommended by COAC would “provide enhanced communications to importers, rights holders and the trade,” Litman said. “There are a lot of parties, even rights holders, who cannot receive information concerning the detained goods through ACE,” she said. “There needs to be a means for accessing, for sharing and initiating and processing those detentions.”

The portal should allow rights holders to be able to access notifications and images from CBP concerning shipments of allegedly infringing merchandise, the recommendations said. Rights holders should then be able to “exchange information and images with CBP relevant to specific enforcement actions that can be tracked utilizing a unique identifier, which can be referenced throughout the enforcement process,” COAC said. And CBP and rights holders should be able to use the portal to initiate and process CBP activities, including manipulation and abandonment, including during detention, it said.

Likewise, importers and other parties should be able to use a unique identifier to access notifications and images for allegedly infringing merchandise. They should then be able to use a unique identifier to “exchange information, images, and file responses and/or petitions with CBP relevant to specific actions throughout the entire enforcement process,” COAC said. And they should also be able to use the portal to initiate CBP activities such as manipulation and abandonment, it said.

A CBP official did not provide detailed comment on the recommendations after they were read during the meeting. A document released by CBP ahead of the meeting said CBP will continue to work with COAC to "gather more detailed feedback and further discuss how CBP can implement the … recommendations.”