Trade Still Concerned Over Possibility of U.S. Registered Agent Bill
At the National Customs Brokers and Forwarders Association of America’s Government Affairs Conference in September 2010, congressional and industry sources provided an update on the status of the Foreign Manufacturers Legal Accountability Act, which would require registered agents in the U.S. for certain imported products.
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Similar Bills Were Introduced in House and Senate
As introduced, the House (H.R. 4678) and Senate (S. 1606) versions of the Foreign Manufacturers Legal Accountability Act are similar. H.R. 4678 was introduced in 2010 and S. 1606 was introduced in 2009.
Both would require certain foreign manufacturers and producers1 of covered products distributed in commerce (or component parts that will be used in the U.S. to manufacture such products) to establish a registered agent in the U.S2.
Covered products would be defined as drugs, devices, and cosmetics; biological products; consumer products; and certain chemical substances and pesticides.
The bills would also prohibit importation into the U.S. of covered products (or component part that will be used in the U.S. to manufacture a covered product) manufactured or produced outside the U.S. by a manufacturer or producer who does not have a registered agent.
Trade Has Expressed Concern over Introduced Bills
The trade has expressed concern regarding H.R. 4678 and S. 1606, noting, among other things, that the bills would not achieve the goal of making foreign manufacturers accountable and could make U.S. exporters targets for similar provisions.
Trade also Concerned About the Addition of an Importer Declaration Requirement
The trade has also been concerned about the possible addition to either or both U.S. registered agent bills of a provision to require the importer to attest to its belief, after appropriate inquiry, that the foreign manufacturer or producer of a covered product has a registered agent in the U.S.
Attempts Have Been Made in Senate to Add Modified U.S. Registered Agent Provision to Other Legislation
According to congressional sources, at least two attempts have been made in the Senate to have a modified U.S. registered agent amendment attached to other, unrelated legislation -- the Unemployment Compensation Extension Act (H.R. 4213) and the Small Business Jobs and Credit Act (H.R. 5297), both of which were enacted into law3.
The attempts contained importer declaration provision. The attempts to offer a modified U.S. registered agent amendment to H.R. 4213 and H.R. 5297 included an importer declaration provision. That provision would have required any person importing a covered product manufactured outside the U.S. to provide a declaration to U.S. Customs and Border Protection that the person has made appropriate inquiry and to the best of the person’s knowledge, the foreign manufacturer or producer has established a registered agent in the U.S. (Failure to provide such a declaration would be subject to penalty.)
Trade Has Been Urged to Remain Vigilant
Although proponents of U.S. registered agent legislation have been unsuccessful so far in attaching it to another piece of legislation, presenters at the NCBFAA conference warned that such efforts may continue and urged the trade to remain vigilant.
1Only manufacturers and producers that manufacture or produce covered products (or components parts that will be used in the U.S. to manufacture such products) in excess of a minimum value or quantity established by the applicable agency.
2to accept service of process on behalf of such manufacturer or producer for the purpose of all civil or regulatory actions in State and Federal courts.
3H.R. 4213 was enacted into law on July 22, 2010 and H.R. 5297 was enacted into law on September 27, 2010 (both without a U.S. registered agent component).
(See ITT’s Online Archives or 03/25/10 news, 10032515, for BP summary of H.R. 4678. See ITT’s Online Archives or 09/02/09 news, 09090215, for BP summary of S. 1606.
See ITT’s Online Archives or 06/25/10 and 07/16/10 news, 10062541 and 10071631, for BP summaries of notices on NCBFAA concerns about U.S. registered agents legislation.
See ITT’s Online Archives or 07/22/10 news, 10072218, for BP summary of the House Energy and Commerce Committee’s markup of H.R. 4678.)
See ITT’s Online Archives or 06/25/10 and 07/16/10 news, 10062541 and 10071631, for BP summaries of notices on NCBFAA concerns about U.S. registered agents legislation.
H.R. 4678 as reported by House Energy and Commerce Committee available by emailing documents@brokerpower.com.
Proposed amendments to H.R. 4213 and 5297 (which included the importer declaration provision) available by emailing documents@brokerpower.com.
NCBFAA GAC position paper on legislation available by emailing documents@brokerpower.com.