1.This Act may be cited as
the Foreign Manufacturers Legal
Accountability Act of 2009
.
2.Congress makes the following
findings:
(1)Each year, many
people in the United States are injured by defective products manufactured or
produced by foreign entities and imported into the United States.
(2)Both consumers
and businesses in the United States have been harmed by injuries to people in
the United States caused by defective products manufactured or produced by
foreign entities.
(3)People in the
United States injured by defective products manufactured or produced by foreign
entities often have difficulty recovering damages from the foreign
manufacturers and producers responsible for such injuries.
(4)The difficulty
described in paragraph (3) is caused by the obstacles in bringing a foreign
manufacturer or producer into a United States court and subsequently enforcing
a judgment against that manufacturer or producer.
(5)Obstacles to
holding a responsible foreign manufacturer or producer liable for an injury to
a person in the United States undermine the purpose of the tort laws of the
United States.
(6)The difficulty of
applying the tort laws of the United States to foreign manufacturers and
producers puts United States manufacturers and producers at a competitive
disadvantage because United States manufacturers and producers must—
(A)abide by common
law and statutory safety standards; and
(B)invest
substantial resources to ensure that they do so.
(7)Foreign
manufacturers and producers can avoid the expenses necessary to make their
products safe if they know that they will not be held liable for violations of
United States product safety laws.
(8)Businesses in the
United States undertake numerous commercial relationships with foreign
manufacturers, exposing the businesses to additional tort liability when
foreign manufactures or producers evade United States courts.
(9)Businesses in the
United States engaged in commercial relationships with foreign manufacturers or
producers often cannot vindicate their contractual rights if such manufacturers
or producers seek to avoid responsibility in United States courts.
(10)One of the major
obstacles facing businesses and individuals in the United States who are
injured and who seek compensation for economic or personal injuries caused by
foreign manufacturers and producers is the challenge of serving process on such
manufacturers and producers.
(11)An individual or
business injured in the United States by a foreign company must rely on a
foreign government to serve process when that company is located in a country
that is a signatory to the Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters done at The Hague
November 15, 1965 (20 UST 361; TIAS 6638).
(12)An injured
person in the United States must rely on the cumbersome system of letters
rogatory to effect service in a country that did not sign the Convention on the
Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial
Matters. These countries do not have an enforceable obligation to serve process
as requested.
(13)The procedures
described in paragraphs (11) and (12) add time and expense to litigation in the
United States, thereby discouraging or frustrating meritorious lawsuits brought
by persons injured in the United States against foreign manufacturers and
producers.
(14)Foreign
manufacturers and producers often seek to avoid judicial consideration of their
actions by asserting that United States courts lack personal jurisdiction over
them.
(15)The due process
clauses of the fifth amendment to and section 1 of the 14th amendment to the
Constitution govern United States court assertions of personal jurisdiction
over defendants.
(16)The due process
clauses described in paragraph (15) are satisfied when a defendant consents to
the jurisdiction of a court.
(17)United States
markets present many opportunities for foreign manufacturers.
(18)Creating a
competitive advantage for either foreign or domestic manufacturers violates the
principles of United States trade agreements with other countries.
(19)In choosing to
import products into the United States, a foreign manufacturer or producer
subjects itself to the laws of the United States. Such a foreign manufacturer
or producer thereby acknowledges that it is subject to the personal
jurisdiction of the State and Federal courts in at least one State.
3.It is the sense of
Congress that—
(1)foreign
manufacturers and producers whose products are sold in the United States should
not be able to avoid liability simply because of difficulties relating to
serving process upon them;
(2)to avoid such
lack of accountability, foreign manufacturers and producers of foreign products
distributed in the United States should be required, by regulation, to register
an agent in the United States who is authorized to accept service of process
for such manufacturer or producer;
(3)it is unfair to
United States consumers and businesses that foreign manufacturers and producers
often seek to avoid judicial consideration of their actions by asserting that
United States courts lack personal jurisdiction over them;
(4)those who benefit
from importing products into United States markets should expect to be subject
to the jurisdiction of at least one court within the United States;
(5)importing
products into the United States should be understood as consent to the
accountability that the legal system of the United States ensures for all
manufacturers and producers, foreign, and domestic;
(6)importers
recognize the scope of opportunities presented to them by United States markets
but also should recognize that products imported into the United States must
satisfy Federal and State safety standards established by statute, regulation,
and common law;
(7)foreign
manufacturers should recognize that they are responsible for the contracts they
enter into with United States companies;
(8)foreign
manufacturers should act responsibly and recognize that they operate within the
constraints of the United States legal system when they import products into
the United States;
(9)foreign
manufacturers who are unwilling to act and recognize as described in paragraphs
(6), (7), and (8) should not have access to United States markets;
(10)United States
laws and the laws of United States trading partners should not put burdens on
foreign manufacturers and importers that do not apply to domestic
companies;
(11)it is fair to
ensure that foreign manufacturers, whose products are distributed in commerce
in the United States, are subject to the jurisdiction of State and Federal
courts in at least one State because all United States manufacturers are
subject to the jurisdiction of the State and Federal courts in at least one
State; and
(12)it should be
understood that, by registering an agent for service of process in the United
States, the foreign manufacturer or producer acknowledges consent to the
jurisdiction of the State in which the registered agent is located.
4.In this Act:
(1)The term applicable agency means, with
respect to covered products—
(A)described in
subparagraphs (A) and (B) of paragraph (3), the Food and Drug
Administration;
(B)described in
paragraph (3)(C), the Consumer Product Safety Commission;
(C)described in
subparagraphs (D) and (E) of paragraph (3), the Environmental Protection
Agency.
(2)The
term commerce means trade, traffic, commerce, or
transportation—
(A)between a place
in a State and any place outside thereof; or
(B)which affects
trade, traffic, commerce, or transportation described in subparagraph
(A).
(3)The term covered product means any of the
following:
(A)Drugs, devices,
and cosmetics, as such terms are defined in section 201 of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 321).
(B)A biological
product, as such term is defined in section 351(i) of the Public Health Service
Act (42 U.S.C. 262(i)).
(C)A consumer
product, as such term is used in section 3(a) of the Consumer Product Safety
Act (15 U.S.C. 2052).
(D)A chemical
substance or new chemical substance, as such terms are defined in section 3 of
the Toxic Substances Control Act (15 U.S.C. 2602).
(E)A pesticide, as
such term is defined in section 2 of the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. 136).
(4)The term distribute in commerce means to
sell in commerce, to introduce or deliver for introduction into commerce, or to
hold for sale or distribution after introduction into commerce.
5.Registration of
agents of foreign manufacturers authorized to accept service of process in the
United States
(a)
(1)Not later than 180 days after the date of the enactment
of this Act and except as provided in paragraph (3), the head of each
applicable agency shall require foreign manufacturers and producers of covered
products distributed in commerce (or component parts that will be used in the
United States to manufacture such products) to establish a registered agent in
the United States who is authorized to accept service of process on behalf of
such manufacturer or producer for the purpose of all civil and regulatory
actions in State and Federal courts, if such service is made in accord with the
State or Federal rules for service of process in the State in which the case or
regulatory action is brought.
(2)The
head of each applicable agency shall require that an agent of a foreign
manufacturer or producer registered under paragraph (1) be located in a State
with a substantial connection to the importation, distribution, or sale of the
products of such foreign manufacturer or producer.
(3)Paragraph (1) shall only apply to foreign manufacturers and
producers that manufacture or produce covered products (or component parts that
will be used in the United States to manufacture such products) in excess of a
minimum value or quantity established by the head of the applicable agency
under this section.
(b)Registry of
agents of foreign manufacturers
(1)The Secretary of
Commerce shall, in cooperation with each head of an applicable agency,
establish and keep up to date a registry of agents registered under subsection
(a).
(2)The Secretary of Commerce shall make the
registry established under paragraph (1) available to the public through the
Internet website of the Department of Commerce.
(c)A foreign manufacturer or producer of covered
products that registers an agent under this section thereby consents to the
personal jurisdiction of the State or Federal courts of the State in which the
registered agent is located for the purpose of any civil or regulatory
proceeding.
(d)Not
later than the date described in subsection (a)(1), the Secretary of Commerce
and each head of an applicable agency shall prescribe regulations to carry out
this section.
6.Prohibition of
importation of products of manufacturers without registered agents in United
States
(a)Beginning on the date
that is 180 days after the date the regulations required under section 5(d) are
prescribed, a person may not import into the United States a covered product
(or component part that will be used in the United States to manufacture a
covered product) if such product (or component part) or any part of such
product (or component part) was manufactured or produced outside the United
States by a manufacturer or producer who does not have a registered agent
described in section 5(a) whose authority is in effect on the date of the
importation.
(b)The Secretary of Homeland Security shall
prescribe regulations to enforce the prohibition in subsection (a).
7.Study on
registration of agents of foreign food producers authorized to accept service
of process in the United StatesNot later than 1 year after the date of the
enactment of this Act, the Secretary of Agriculture and the Commissioner of
Food and Drugs shall jointly—
(1)complete a study on the feasibility and
advisability of requiring foreign producers of food distributed in commerce to
establish a registered agent in the United States who is authorized to accept
service of process on behalf of such producers for the purpose of all civil and
regulatory actions in State and Federal courts; and
(2)submit to
Congress a report on the findings of the Secretary with respect to such
study.
8.Relationship
with other lawsNothing in
this Act shall affect the authority of any State to establish or continue in
effect a provision of State law relating to service of process or personal
jurisdiction, except to the extent that such provision of law is inconsistent
with the provisions of this Act, and then only to the extent of such
inconsistency.