[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1946 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                S. 1946

 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.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            December 5, 2011

Mr. Whitehouse (for himself, Mr. Sessions, Mr. Durbin, Mr. Graham, Mr. 
    Leahy, Mrs. Feinstein, Mr. Nelson of Florida, Mr. Bennet, Mrs. 
McCaskill, and Mr. Pryor) introduced the following bill; which was read 
             twice and referred to the Committee on Finance

_______________________________________________________________________

                                 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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

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

SEC. 2. FINDINGS.

    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 
        manufacturers 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 fourteenth amendment to the Constitution 
        govern United States courts' 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) In choosing to export products to 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.

SEC. 3. SENSE OF CONGRESS.

    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 exporting products to United 
        States markets should expect to be subject to the jurisdiction 
        of at least one court within the United States;
            (5) exporting products to 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) exporters 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 export products to the 
        United States;
            (9) United States laws and the laws of United States 
        trading partners should not put burdens on foreign 
        manufacturers and producers that do not apply to domestic 
        companies;
            (10) 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
            (11) 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.

SEC. 4. 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 (4), the Food and Drug Administration;
                    (B) described in paragraph (4)(C), the Consumer 
                Product Safety Commission;
                    (C) described in subparagraphs (D) and (E) of 
                paragraph (4), the Environmental Protection Agency; and
                    (D) described in subparagraph (F) of paragraph 
                (4)--
                            (i) the Food and Drug Administration, if 
                        the item is intended to be a component part of 
                        a product described in subparagraphs (A) and 
                        (B) of paragraph (4);
                            (ii) the Consumer Product Safety 
                        Commission, if the item is intended to be a 
                        component part of a product described in 
                        paragraph (4)(C); and
                            (iii) the Environmental Protection Agency, 
                        if the item is intended to be a component part 
                        of a product described in subparagraphs (D) and 
                        (E) of paragraph (4).
            (2) Commerce.--The term ``commerce'' means trade, traffic, 
        commerce, or transportation--
                    (A) between a place in a State and any place 
                outside of the State; or
                    (B) which affects trade, traffic, commerce, or 
                transportation described in subparagraph (A).
            (3) Commissioner of u.s. customs and border protection.--
        The term ``Commissioner of U.S. Customs and Border Protection'' 
        means the Commissioner responsible for U.S. Customs and Border 
        Protection of the Department of Homeland Security.
            (4) 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).
                    (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) An item intended to be a component part of a 
                product described in subparagraph (A), (B), (C), (D), 
                or (E) but is not yet a component part of such product.
            (5) 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.

SEC. 5. 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 (e)(1) and except as otherwise provided in this 
        subsection, the head of each applicable agency shall require 
        foreign manufacturers and producers of covered products 
        distributed in commerce 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 any 
        State or Federal regulatory proceeding or any civil action in 
        any State or Federal court relating to such covered product, if 
        such service is made in accord with the State or Federal rules 
        for service of process in the State in which the regulatory 
        action or case is brought.
            (2) Location.--The head of each applicable agency shall 
        require that an agent of a foreign manufacturer or producer 
        registered under this subsection with respect to a covered 
        product be located in a State with a substantial connection to 
        the importation, distribution, or sale of the covered product.
            (3) Designation and acceptance.--
                    (A) Designation by foreign manufacturers and 
                producers.--The head of each applicable agency shall 
                require each foreign manufacturer and producer 
                described in paragraph (1) to provide to the applicable 
                agency a written designation of the agent established 
                by the foreign manufacturer or producer pursuant to 
                paragraph (1) that--
                            (i) is signed by an official or employee of 
                        the foreign manufacturer or producer who has 
                        authority to appoint an agent;
                            (ii) contains the full legal name, 
                        principal place of business, and mailing 
                        address of the foreign manufacturer or 
                        producer; and
                            (iii) contains a statement that the 
                        designation is valid and binding on the foreign 
                        manufacturer or producer for the purposes of 
                        this section.
                    (B) Acceptance by agents.--The head of each 
                applicable agency shall require each agent established 
                pursuant to paragraph (1) with respect to a foreign 
                manufacturer or producer to provide to the applicable 
                agency a written acceptance of such establishment 
                that--
                            (i) is 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) contains the agent's full legal name, 
                        physical address, mailing address, and 
                        telephone number;
                            (iii) contains a statement that the agent 
                        accepts such establishment and the designation 
                        by the foreign manufacturer or producer under 
                        subparagraph (A); and
                            (iv) contains a statement that the agent 
                        acknowledges that the duties of the agent--
                                    (I) may not be assigned to another 
                                person; and
                                    (II) remain in effect until 
                                withdrawn or replaced by the foreign 
                                manufacturer or producer.
            (4) Minimum size.--This subsection shall only apply to 
        foreign manufacturers and producers that manufacture or produce 
        covered products in excess of a minimum value or quantity the 
        head of the applicable agency shall prescribe by rule for 
        purposes of this section. Such rules may include different 
        minimum values or quantities for different subcategories of 
        covered products prescribed by the head of the applicable 
        agency for purposes of this section.
    (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 through the Internet website of 
                the Department of Commerce; and
                    (B) to the Commissioner of U.S. Customs and Border 
                Protection.
    (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 or 
        Federal courts of the State in which the registered agent is 
        located for the purpose of any regulatory proceeding or civil 
        action relating to such covered product.
            (2) Rule of construction.--Paragraph (1) shall not be 
        construed to apply to actions brought by foreign plaintiffs in 
        which the alleged injury or damage occurred outside the United 
        States.
    (d) Declarations.--
            (1) In general.--Beginning on the date that is 180 days 
        after the date on which the regulations are prescribed pursuant 
        to subsection (e), any person importing a covered product 
        manufactured or produced outside the United States shall 
        provide to U.S. Customs and Border Protection a declaration 
        that--
                    (A) the person has made appropriate inquiry as to 
                whether the manufacturer or producer of the covered 
                product has complied with the requirements of this 
                section, including by seeking appropriate documentation 
                from the exporter of the covered product and by 
                consulting the registry established pursuant to 
                subsection (b); and
                    (B) 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 subsection (a).
            (2) Electronic submission.--Not later than 1 year after the 
        date of the enactment of this Act, the Commissioner of U.S. 
        Customs and Border Protection shall establish a mechanism 
        whereby declarations made pursuant to paragraph (1) may be 
        submitted electronically and maintained as an electronic record 
        within the data management systems of U.S. Customs and Border 
        Protection.
            (3) Regulations.--
                    (A) 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 subsection.
                    (B) Summary declaration.--The regulations required 
                by subparagraph (A) shall require that each declaration 
                of an importer made pursuant to paragraph (1) with 
                respect to a covered product shall accompany the entry 
                summary documentation for such product or, in the case 
                of repeated transactions, may be submitted on an annual 
                basis.
            (4) Penalties.--Any person who fails to provide a 
        declaration required under paragraph (1), or files a false 
        declaration, shall be subject to any appropriate penalty under 
        section 592 of the Tariff Act of 1930 (19 U.S.C. 1592) or title 
        18, United States Code, with respect to importation of a 
        covered product.
    (e) Regulations.--
            (1) In general.--Not later than 1 year after the date of 
        the enactment of this Act, the Secretary of Commerce, the 
        Commissioner of U.S. Customs and Border Protection, and each 
        head of an applicable agency shall prescribe regulations to 
        carry out this section, including the establishment of minimum 
        values and quantities under subsection (a)(4).
            (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 values and quantities 
                under subsection (a)(4), and to the extent advisable 
                and practicable for the purpose of establishing 
                consistent minimum requirements.

SEC. 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 
        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.

SEC. 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 establish 
        registered agents in the United States who are authorized to 
        accept service of process on behalf of such manufacturers or 
        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 head 
        of the applicable agency with respect to the study.

SEC. 8. 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.
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