On October 13, 2006, the Security and Accountability For Every Port Act (the "SAFE Port Act") was signed into law. Although the bill was initially introduced in the House of Representatives, it include provisions first proposed by Senators Max Baucus of Montana and Chuck Grassley of Iowa in the Customs and Trade Facilitation Reauthorization Act of 2006 (S. 3658), which was introduced in the Senate on July 31, 2006.
Specifically, the SAFE Port Act includes a provision requiring the Commissioner for the United States Customs and Border Protection in the Department of Homeland Security to prepare and submit to the Committee on Finance of the Senate (now headed by Senator Baucus) and the Committee on Ways and Means of the House of Representatives a Resource Allocation Model that is intended to be used to determine optimal staffing levels required to carry out Customs and Border Protection functions. The Model must specifically address resources needed for the protection of intellectual property rights, taking into account previous staffing models, historic and projected trade volumes, and trends. This language was taken directly from the Senate bill sponsored by Senators Baucus and Grassley.
The Senate bill would have gone even further to protect intellectual property rights, however. The bill introduced by Senators Baucus and Grassley would have established an Intellectual Property Rights Enforcement Division within the Bureau of Customs and Border Protection Office of Regulations and Rulings. The Director of the Intellectual Property Rights Enforcement Division would be specifically tasked with increasing enforcement cooperation between customs agencies of foreign governments and the United States, consulting with the private sector in training officers of the Bureau of Customs and Border Protection in the detection and identification of counterfeit products, assisting in the development and coordination of intellectual property rights training at United States ports, and coordinating with other agencies, departments, and personnel of the United States government with respect to the enforcement of intellectual property rights.
The Senate bill also called for the hiring of ten additional attorneys and five auditors who would be assigned specifically to the enforcement of intellectual property rights. In addition, the Senate bill would require the appointment of a senior investigative liaison who would be stationed within the Intellectual Property Rights Enforcement Division and who would have responsibility for coordinating the intellectual property rights enforcement efforts of the Bureau of Immigration and Customs Enforcement with the enforcement efforts of the Division.
The Senate bill also would have required the Secretary of Homeland Security, before entering into any agreement with a foreign government, to conduct an assessment of the ports in that country. According to the bill, that assessment would need to include an assessment of the level of risk for violations of United States trade laws, including intellectual property rights.
While the resource allocation analysis required by the SAFE Port Act is a step in the right direction, the Senate bill clearly placed a greater emphasis on the enforcement of intellectual property rights. If we are to remain a country that rewards innovation and provides incentives for technological advancement, then we must be willing to make intellectual property enforcement a priority. Hopefully any Customs authorization bill put forth by the new Congress will include many of the same IP protections previously proposed by Senators Baucus and Grassley.
