I 112th CONGRESS 1st Session H. R. 3646 IN THE HOUSE OF REPRESENTATIVES December 13, 2011 Ms. Sutton (for herself, Mr. Turner of Ohio, Mr. Conyers, Ms. Linda T. Sánchez of California, Ms. Zoe Lofgren of California, Mr. Ryan of Ohio, Mr. Lipinski, Mr. Stark, Mr. Jones, Mr. Michaud, Mr. Israel, Mr. Peters, Mr. Hastings of Florida, Mr. Courtney, Mr. Andrews, Ms. Kaptur, Mr. Johnson of Georgia, Mr. Holden, Mr. Yarmuth, Mr. Murphy of Connecticut, Mr. Critz, Ms. Schakowsky, Mr. Gene Green of Texas, and Mr. Sarbanes) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committees on Ways and Means and Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To require foreign manufacturers of products imported into the United States to establish registered agents in the United States who are authorized to accept service of process against such manufacturers, and for other purposes.

1.

Short title

This Act may be cited as the Foreign Manufacturers Legal Accountability Act of 2011.

2.

Definitions

In this Act: (1)

Applicable agency

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; (D)described in paragraph (3)(F), the National Highway Traffic Safety Administration; and (E)described in paragraph (3)(G)— (i)the Food and Drug Administration, if the item is intended to be a component part of a product described in subparagraph (A) or (B) of paragraph (3); (ii)the Consumer Product Safety Commission, if the item is intended to be a component part of a product described in paragraph (3)(C); (iii)the Environmental Protection Agency, if the item is intended to be a component part of a product described in subparagraph (D) or (E) of paragraph (3); and (iv)the National Highway Traffic Safety Administration, if the item is intended to be a component part of a product described in paragraph (3)(F). (2)

Commerce

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)

Covered product

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), in its imported form. (E)A pesticide, as such term is defined in section 2 of the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136). (F)A motor vehicle or motor vehicle equipment, as such terms are defined in section 30102 of title 49, United States Code. (G)An item intended to be a component part of a product described in subparagraph (A), (B), (C), (D), (E), or (F) but is not yet a component part of such product. (4)

Distribute in commerce

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.

3.

Registration of agents of foreign manufacturers authorized to accept service of process in the United States

(a)

Registration

(1)

In general

Beginning on the date that is 180 days after the date on which the regulations are prescribed pursuant to subsection (d) and except as provided in this subsection, the head of each applicable agency shall require foreign manufacturers and producers of covered products distributed in commerce to register an agent in the United States who is authorized to accept service of process on behalf of such manufacturer or producer for the purpose of any State or Federal regulatory proceeding or any civil action in State or Federal court related to such covered product, if such service is made in accordance with the State or Federal rules for service of process in the State in which the case or regulatory action is brought. (2)

Location

The head of each applicable agency shall require that an agent of a foreign manufacturer or producer registered under paragraph (1) be— (A)located in a State chosen by the foreign manufacturer or producer with a substantial connection to the importation, distribution, or sale of the products of the foreign manufacturer or producer; and (B)an individual, domestic firm, or domestic corporation that is a permanent resident of the United States. (3)

Designation by manufacturer or producer and acceptance by agent

The head of each applicable agency shall, at a minimum, require a— (A)written designation by a foreign manufacturer or producer with respect to which paragraph (1) applies— (i)signed by an official or employee of the foreign manufacturer or producer with authority to appoint an agent; (ii)containing the full legal name, principal place of business, and mailing address of the manufacturer or producer; and (iii)containing a statement that the designation is valid and binding on the foreign manufacturer or producer for the purposes of this Act; or (B)written acceptance by the agent registered by a foreign manufacturer or producer with respect to which paragraph (1) applies— (i)signed by the agent or, in the case in which a domestic firm or domestic corporation is designated as an agent, an official or employee of the firm or corporation with authority to sign for the firm or corporation; (ii)containing the agent’s full legal name, physical address, mailing address, and phone number; and (iii)containing a statement that the agent accepts the designation and acknowledges that the duties of the agent may not be assigned to another person or entity and the duties remain in effect until withdrawn or replaced by the foreign manufacturer or producer. (4)

Applicability

(A)

In general

Paragraph (1) applies only with respect to a foreign manufacturer or producer that exceeds minimum requirements established by the head of the applicable agency under this section. (B)

Factors

In determining the minimum requirements for application of paragraph (1) to a foreign manufacturer or producer, the head of the applicable agency shall, at a minimum, consider the following: (i)The value of all covered products imported from the manufacturer or producer in a calendar year. (ii)The quantity of all covered products imported from the manufacturer or producer in a calendar year. (iii)The frequency of importation from the manufacturer or producer in a calendar year. (b)

Registry of agents of foreign manufacturers

(1)

In general

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)

Availability

The Secretary of Commerce shall make the registry established under paragraph (1) available— (A)to the public in a searchable format through the Internet website of the Department of Commerce; and (B)to the Commissioner responsible for U.S. Customs and Border Protection in a format prescribed by the Commissioner. (c)

Consent to jurisdiction

(1)

In general

A foreign manufacturer or producer of a covered product that registers an agent under this section thereby consents to the personal jurisdiction of the State and Federal courts of the State in which the registered agent is located for the purpose of any judicial proceeding related to such covered product. (2)

Rule of construction

Paragraph (1) shall not apply to actions brought by foreign plaintiffs where the alleged injury or damage occurred outside the United States. (d)

Regulations

(1)

In general

Not later than one year after the date of the enactment of this Act, the Secretary of Commerce, the Commissioner responsible for U.S. Customs and Border Protection, and each head of an applicable agency shall prescribe regulations to carry out this section. (2)

Interagency cooperation

The Secretary of Commerce, the Commissioner responsible for U.S. Customs and Border Protection, and each head of an applicable agency shall cooperate and consult with one another for the purpose of— (A)prescribing consistent regulations to the extent necessary for the effective and efficient sharing of information and establishment of systems and procedures necessary to carry out this section; and (B)establishing minimum requirements described in subsection (a)(4), and to the extent advisable and practicable for the purpose of establishing consistent minimum requirements.

4.

Declaration to U.S. Customs and Border Protection

(a)

Declaration

Beginning on the date that is 180 days after the date on which the regulations required under section 3(d) are prescribed, any person importing into the United States a covered product if such product was manufactured or produced outside the United States shall provide to U.S. Customs and Border Protection a declaration that— (1)the person has made appropriate inquiry as to whether the manufacturer or producer of the covered product has complied with the requirements of section 3, including by seeking appropriate documentation from the exporter of the covered product and by consulting the registry established pursuant to section 3(b); and (2)to the best of the person’s knowledge, with respect to each importation of a covered product, the foreign manufacturer or producer of the product has registered an agent in the United States as required under section (3)(a). (b)

Penalties

An importer who fails to provide a declaration required under subsection (a), or files a false declaration, shall be subject to the applicable penalty under section 592 of the Tariff Act of 1930 (19 U.S.C. 1592) or under title 18, United States Code, with respect to importation of a covered product. (c)

Regulations

(1)

In general

Not later than 1 year after the date of the enactment of this Act, the Commissioner of U.S. Customs and Border Protection shall prescribe regulations to carry out this section. The regulations shall provide that the declaration of the importer required under subsection (a) shall accompany the entry summary documentation or, in the case of repeated transactions, may be submitted on an annual basis. (2)

Form

The regulations shall provide for the declaration to be submitted electronically and maintained as an electronic record within the data management systems of U.S. Customs and Border Protection.

5.

Reporting of defects in covered products in foreign countries

(a)

Determination by manufacturer or producer

Not later than 5 working days after determining to conduct a safety recall or other safety campaign in a foreign country of a covered product that is identical or substantially similar to a covered product offered for sale in the United States, the manufacturer or producer of the covered product shall report the determination to the head of the applicable agency. (b)

Determination by foreign government

Not later than 5 working days after receiving notification that the government of a foreign country has determined that a safety recall or other safety campaign must be conducted in the foreign country of a covered product that is identical or substantially similar to a covered product offered for sale in the United States, the manufacturer or producer of the covered product shall report the determination to the head of the applicable agency. (c)

Reporting requirements

Not later than the date described in subsection (d), the head of each applicable agency shall prescribe the contents of the notification required by this section. (d)

Effective date

Except as provided in subsection (c), this section shall take effect on the date that is one year after the date of the enactment of this Act.

6.

Study on registration of agents of foreign food producers authorized to accept service of process in the United States

Not 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 register an agent in the United States who is authorized to accept service of process on behalf of such producers for the purpose of any State or Federal regulatory proceeding or any civil action in State or Federal court related to such food products; and (2)submit to Congress a report on the findings of the Secretary with respect to such study.

7.

Study on registration of agents of foreign manufacturers and producers of component parts within covered products

Not later than 2 years after the date of the enactment of this Act, the head of each applicable agency shall— (1)complete a study on determining feasible and advisable methods of requiring manufacturers or producers of component parts within covered products manufactured or produced outside the United States and distributed in commerce to register agents in the United States who are authorized to accept service of process on behalf of such manufacturers or producers for the purpose of any State or Federal regulatory proceeding or any civil action in State or Federal court related to such component parts; and (2)submit to Congress a report on the findings of the head of the applicable agency with respect to the study.

8.

Study on enforcement of United States judgments relating to defective drywall imported from China

Not later than 1 year after the date of the enactment of this Act, the Comptroller General of the United States shall— (1)complete a study on methods to enforce judgments of any State or Federal regulatory proceeding or any civil action in State or Federal court relating to defective drywall imported from the People’s Republic of China and distributed in commerce during the period 2004 through 2007 and used in residential dwellings in the United States; and (2)submit to Congress a report on the findings of the Comptroller General with respect to the study.

9.

Relationship with other laws

Nothing 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.