II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Foreign Manufacturers 

5 Legal Accountability Act of 2011’’. 

6 SEC. 2. FINDINGS. 

7 Congress makes the following findings: 


PWALKER on DSK7TPTVN1PROD with BILLS
2 

•S 1946 IS

1 (1) Each year, many people in the United 

2 States are injured by defective products manufac3 tured or produced by foreign entities and imported 

4 into the United States. 

5 (2) Both consumers and businesses in the 

6 United States have been harmed by injuries to peo7 ple in the United States caused by defective prod8 ucts manufactured or produced by foreign entities. 

9 (3) People in the United States injured by de10 fective products manufactured or produced by for11 eign entities often have difficulty recovering damages 

12 from the foreign manufacturers and producers re13 sponsible for such injuries. 

14 (4) The difficulty described in paragraph (3) is 

15 caused by the obstacles in bringing a foreign manu16 facturer or producer into a United States court and 

17 subsequently enforcing a judgment against that 

18 manufacturer or producer. 

19 (5) Obstacles to holding a responsible foreign 

20 manufacturer or producer liable for an injury to a 

21 person in the United States undermine the purpose 

22 of the tort laws of the United States. 

23 (6) The difficulty of applying the tort laws of 

24 the United States to foreign manufacturers and pro25 ducers puts United States manufacturers and proVerDate Mar 15 2010 02:54 Dec 06, 2011 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1946.IS S1946

PWALKER on DSK7TPTVN1PROD with BILLS
3 

•S 1946 IS

1 ducers at a competitive disadvantage because United 

2 States manufacturers and producers must— 

3 (A) abide by common law and statutory 

4 safety standards; and 

5 (B) invest substantial resources to ensure 

6 that they do so. 

7 (7) Foreign manufacturers and producers can 

8 avoid the expenses necessary to make their products 

9 safe if they know that they will not be held liable for 

10 violations of United States product safety laws. 

11 (8) Businesses in the United States undertake 

12 numerous commercial relationships with foreign 

13 manufacturers, exposing the businesses to additional 

14 tort liability when foreign manufacturers or pro15 ducers evade United States courts. 

16 (9) Businesses in the United States engaged in 

17 commercial relationships with foreign manufacturers 

18 or producers often cannot vindicate their contractual 

19 rights if such manufacturers or producers seek to 

20 avoid responsibility in United States courts. 

21 (10) One of the major obstacles facing busi22 nesses and individuals in the United States who are 

23 injured and who seek compensation for economic or 

24 personal injuries caused by foreign manufacturers 


PWALKER on DSK7TPTVN1PROD with BILLS
4 

•S 1946 IS

1 and producers is the challenge of serving process on 

2 such manufacturers and producers. 

3 (11) An individual or business injured in the 

4 United States by a foreign company must rely on a 

5 foreign government to serve process when that com6 pany is located in a country that is a signatory to 

7 the Convention on the Service Abroad of Judicial 

8 and Extrajudicial Documents in Civil or Commercial 

9 Matters done at The Hague November 15, 1965 (20 

10 UST 361; TIAS 6638). 

11 (12) An injured person in the United States 

12 must rely on the cumbersome system of letters roga13 tory to effect service in a country that did not sign 

14 the Convention on the Service Abroad of Judicial 

15 and Extrajudicial Documents in Civil or Commercial 

16 Matters. These countries do not have an enforceable 

17 obligation to serve process as requested. 

18 (13) The procedures described in paragraphs 

19 (11) and (12) add time and expense to litigation in 

20 the United States, thereby discouraging or frus21 trating meritorious lawsuits brought by persons in22 jured in the United States against foreign manufac23 turers and producers. 

24 (14) Foreign manufacturers and producers 

25 often seek to avoid judicial consideration of their acVerDate Mar 15 2010 02:54 Dec 06, 2011 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1946.IS S1946

PWALKER on DSK7TPTVN1PROD with BILLS
5 

•S 1946 IS

1 tions by asserting that United States courts lack 

2 personal jurisdiction over them. 

3 (15) The due process clauses of the fifth 

4 amendment to and section 1 of the fourteenth 

5 amendment to the Constitution govern United States 

6 courts’ personal jurisdiction over defendants. 

7 (16) The due process clauses described in para8 graph (15) are satisfied when a defendant consents 

9 to the jurisdiction of a court. 

10 (17) United States markets present many op11 portunities for foreign manufacturers. 

12 (18) In choosing to export products to the 

13 United States, a foreign manufacturer or producer 

14 subjects itself to the laws of the United States. Such 

15 a foreign manufacturer or producer thereby acknowl16 edges that it is subject to the personal jurisdiction 

17 of the State and Federal courts in at least one 

18 State. 

19 SEC. 3. SENSE OF CONGRESS. 

20 It is the sense of Congress that— 

21 (1) foreign manufacturers and producers whose 

22 products are sold in the United States should not be 

23 able to avoid liability simply because of difficulties 

24 relating to serving process upon them; 


PWALKER on DSK7TPTVN1PROD with BILLS
6 

•S 1946 IS

1 (2) to avoid such lack of accountability, foreign 

2 manufacturers and producers of foreign products 

3 distributed in the United States should be required, 

4 by regulation, to register an agent in the United 

5 States who is authorized to accept service of process 

6 for such manufacturer or producer; 

7 (3) it is unfair to United States consumers and 

8 businesses that foreign manufacturers and producers 

9 often seek to avoid judicial consideration of their ac10 tions by asserting that United States courts lack 

11 personal jurisdiction over them; 

12 (4) those who benefit from exporting products 

13 to United States markets should expect to be subject 

14 to the jurisdiction of at least one court within the 

15 United States; 

16 (5) exporting products to the United States 

17 should be understood as consent to the account18 ability that the legal system of the United States en19 sures for all manufacturers and producers, foreign, 

20 and domestic; 

21 (6) exporters recognize the scope of opportuni22 ties presented to them by United States markets but 

23 also should recognize that products imported into 

24 the United States must satisfy Federal and State 


PWALKER on DSK7TPTVN1PROD with BILLS
7 

•S 1946 IS

1 safety standards established by statute, regulation, 

2 and common law; 

3 (7) foreign manufacturers should recognize that 

4 they are responsible for the contracts they enter into 

5 with United States companies; 

6 (8) foreign manufacturers should act respon7 sibly and recognize that they operate within the con8 straints of the United States legal system when they 

9 export products to the United States; 

10 (9) United States laws and the laws of United 

11 States trading partners should not put burdens on 

12 foreign manufacturers and producers that do not 

13 apply to domestic companies; 

14 (10) it is fair to ensure that foreign manufac15 turers, whose products are distributed in commerce 

16 in the United States, are subject to the jurisdiction 

17 of State and Federal courts in at least one State be18 cause all United States manufacturers are subject to 

19 the jurisdiction of the State and Federal courts in 

20 at least one State; and 

21 (11) it should be understood that, by reg22 istering an agent for service of process in the United 

23 States, the foreign manufacturer or producer ac24 knowledges consent to the jurisdiction of the State 

25 in which the registered agent is located. 


PWALKER on DSK7TPTVN1PROD with BILLS
8 

•S 1946 IS

1 SEC. 4. DEFINITIONS. 

2 In this Act: 

3 (1) APPLICABLE AGENCY.—The term ‘‘applica4 ble agency’’ means, with respect to covered prod5 ucts— 

6 (A) described in subparagraphs (A) and 

7 (B) of paragraph (4), the Food and Drug Ad8 ministration; 

9 (B) described in paragraph (4)(C), the 

10 Consumer Product Safety Commission; 

11 (C) described in subparagraphs (D) and 

12 (E) of paragraph (4), the Environmental Pro13 tection Agency; and 

14 (D) described in subparagraph (F) of 

15 paragraph (4)— 

16 (i) the Food and Drug Administra17 tion, if the item is intended to be a compo18 nent part of a product described in sub19 paragraphs (A) and (B) of paragraph (4); 

20 (ii) the Consumer Product Safety 

21 Commission, if the item is intended to be 

22 a component part of a product described in 

23 paragraph (4)(C); and 

24 (iii) the Environmental Protection 

25 Agency, if the item is intended to be a 

26 component part of a product described in 


PWALKER on DSK7TPTVN1PROD with BILLS
9 

•S 1946 IS

1 subparagraphs (D) and (E) of paragraph 

2 (4). 

3 (2) COMMERCE.—The term ‘‘commerce’’ means 

4 trade, traffic, commerce, or transportation— 

5 (A) between a place in a State and any 

6 place outside of the State; or 

7 (B) which affects trade, traffic, commerce, 

8 or transportation described in subparagraph 

9 (A). 

10 (3) COMMISSIONER OF U.S. CUSTOMS AND BOR11 DER PROTECTION.—The term ‘‘Commissioner of 

12 U.S. Customs and Border Protection’’ means the 

13 Commissioner responsible for U.S. Customs and 

14 Border Protection of the Department of Homeland 

15 Security. 

16 (4) COVERED PRODUCT.—The term ‘‘covered 

17 product’’ means any of the following: 

18 (A) Drugs, devices, and cosmetics, as such 

19 terms are defined in section 201 of the Federal 

20 Food, Drug, and Cosmetic Act (21 U.S.C. 

21 321). 

22 (B) A biological product, as such term is 

23 defined in section 351(i) of the Public Health 

24 Service Act (42 U.S.C. 262(i)). 


PWALKER on DSK7TPTVN1PROD with BILLS
10 

•S 1946 IS

1 (C) A consumer product, as such term is 

2 used in section 3(a) of the Consumer Product 

3 Safety Act (15 U.S.C. 2052). 

4 (D) A chemical substance or new chemical 

5 substance, as such terms are defined in section 

6 3 of the Toxic Substances Control Act (15 

7 U.S.C. 2602). 

8 (E) A pesticide, as such term is defined in 

9 section 2 of the Federal Insecticide, Fungicide, 

10 and Rodenticide Act (7 U.S.C. 136). 

11 (F) An item intended to be a component 

12 part of a product described in subparagraph 

13 (A), (B), (C), (D), or (E) but is not yet a com14 ponent part of such product. 

15 (5) DISTRIBUTE IN COMMERCE.—The term 

16 ‘‘distribute in commerce’’ means to sell in commerce, 

17 to introduce or deliver for introduction into com18 merce, or to hold for sale or distribution after intro19 duction into commerce. 

20 SEC. 5. REGISTRATION OF AGENTS OF FOREIGN MANUFAC21 TURERS AUTHORIZED TO ACCEPT SERVICE 

22 OF PROCESS IN THE UNITED STATES. 

23 (a) REGISTRATION.— 

24 (1) IN GENERAL.—Beginning on the date that 

25 is 180 days after the date on which the regulations 


PWALKER on DSK7TPTVN1PROD with BILLS
11 

•S 1946 IS

1 are prescribed pursuant to subsection (e)(1) and ex2 cept as otherwise provided in this subsection, the 

3 head of each applicable agency shall require foreign 

4 manufacturers and producers of covered products 

5 distributed in commerce to establish a registered 

6 agent in the United States who is authorized to ac7 cept service of process on behalf of such manufac8 turer or producer for the purpose of any State or 

9 Federal regulatory proceeding or any civil action in 

10 any State or Federal court relating to such covered 

11 product, if such service is made in accord with the 

12 State or Federal rules for service of process in the 

13 State in which the regulatory action or case is 

14 brought. 

15 (2) LOCATION.—The head of each applicable 

16 agency shall require that an agent of a foreign man17 ufacturer or producer registered under this sub18 section with respect to a covered product be located 

19 in a State with a substantial connection to the im20 portation, distribution, or sale of the covered prod21 uct. 

22 (3) DESIGNATION AND ACCEPTANCE.— 

23 (A) DESIGNATION BY FOREIGN MANUFAC24 TURERS AND PRODUCERS.—The head of each 

25 applicable agency shall require each foreign 


PWALKER on DSK7TPTVN1PROD with BILLS
12 

•S 1946 IS

1 manufacturer and producer described in para2 graph (1) to provide to the applicable agency a 

3 written designation of the agent established by 

4 the foreign manufacturer or producer pursuant 

5 to paragraph (1) that— 

6 (i) is signed by an official or employee 

7 of the foreign manufacturer or producer 

8 who has authority to appoint an agent; 

9 (ii) contains the full legal name, prin10 cipal place of business, and mailing ad11 dress of the foreign manufacturer or pro12 ducer; and 

13 (iii) contains a statement that the 

14 designation is valid and binding on the for15 eign manufacturer or producer for the pur16 poses of this section. 

17 (B) ACCEPTANCE BY AGENTS.—The head 

18 of each applicable agency shall require each 

19 agent established pursuant to paragraph (1) 

20 with respect to a foreign manufacturer or pro21 ducer to provide to the applicable agency a 

22 written acceptance of such establishment that— 

23 (i) is signed by the agent or, in the 

24 case in which a domestic firm or domestic 

25 corporation is designated as an agent, an 


PWALKER on DSK7TPTVN1PROD with BILLS
13 

•S 1946 IS

1 official or employee of the firm or corpora2 tion with authority to sign for the firm or 

3 corporation; 

4 (ii) contains the agent’s full legal 

5 name, physical address, mailing address, 

6 and telephone number; 

7 (iii) contains a statement that the 

8 agent accepts such establishment and the 

9 designation by the foreign manufacturer or 

10 producer under subparagraph (A); and 

11 (iv) contains a statement that the 

12 agent acknowledges that the duties of the 

13 agent— 

14 (I) may not be assigned to an15 other person; and 

16 (II) remain in effect until with17 drawn or replaced by the foreign man18 ufacturer or producer. 

19 (4) MINIMUM SIZE.—This subsection shall only 

20 apply to foreign manufacturers and producers that 

21 manufacture or produce covered products in excess 

22 of a minimum value or quantity the head of the ap23 plicable agency shall prescribe by rule for purposes 

24 of this section. Such rules may include different 

25 minimum values or quantities for different subcatVerDate Mar 15 2010 02:54 Dec 06, 2011 Jkt 099200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S1946.IS S1946

PWALKER on DSK7TPTVN1PROD with BILLS
14 

•S 1946 IS

1 egories of covered products prescribed by the head of 

2 the applicable agency for purposes of this section. 

3 (b) REGISTRY OF AGENTS OF FOREIGN MANUFAC4 TURERS.— 

5 (1) IN GENERAL.—The Secretary of Commerce 

6 shall, in cooperation with each head of an applicable 

7 agency, establish and keep up to date a registry of 

8 agents registered under subsection (a). 

9 (2) AVAILABILITY.—The Secretary of Com10 merce shall make the registry established under 

11 paragraph (1) available— 

12 (A) to the public through the Internet 

13 website of the Department of Commerce; and 

14 (B) to the Commissioner of U.S. Customs 

15 and Border Protection. 

16 (c) CONSENT TO JURISDICTION.— 

17 (1) IN GENERAL.—A foreign manufacturer or 

18 producer of a covered product that registers an 

19 agent under this section thereby consents to the per20 sonal jurisdiction of the State or Federal courts of 

21 the State in which the registered agent is located for 

22 the purpose of any regulatory proceeding or civil ac23 tion relating to such covered product. 

24 (2) RULE OF CONSTRUCTION.—Paragraph (1) 

25 shall not be construed to apply to actions brought by 


PWALKER on DSK7TPTVN1PROD with BILLS
15 

•S 1946 IS

1 foreign plaintiffs in which the alleged injury or dam2 age occurred outside the United States. 

3 (d) DECLARATIONS.— 

4 (1) IN GENERAL.—Beginning on the date that 

5 is 180 days after the date on which the regulations 

6 are prescribed pursuant to subsection (e), any per7 son importing a covered product manufactured or 

8 produced outside the United States shall provide to 

9 U.S. Customs and Border Protection a declaration 

10 that— 

11 (A) the person has made appropriate in12 quiry as to whether the manufacturer or pro13 ducer of the covered product has complied with 

14 the requirements of this section, including by 

15 seeking appropriate documentation from the ex16 porter of the covered product and by consulting 

17 the registry established pursuant to subsection 

18 (b); and 

19 (B) to the best of the person’s knowledge, 

20 with respect to each importation of a covered 

21 product, the foreign manufacturer or producer 

22 of the product has registered an agent in the 

23 United States as required under subsection (a). 

24 (2) ELECTRONIC SUBMISSION.—Not later than 

25 1 year after the date of the enactment of this Act, 


PWALKER on DSK7TPTVN1PROD with BILLS
16 

•S 1946 IS

1 the Commissioner of U.S. Customs and Border Pro2 tection shall establish a mechanism whereby declara3 tions made pursuant to paragraph (1) may be sub4 mitted electronically and maintained as an electronic 

5 record within the data management systems of U.S. 

6 Customs and Border Protection. 

7 (3) REGULATIONS.— 

8 (A) IN GENERAL.—Not later than 1 year 

9 after the date of the enactment of this Act, the 

10 Commissioner of U.S. Customs and Border 

11 Protection shall prescribe regulations to carry 

12 out this subsection. 

13 (B) SUMMARY DECLARATION.—The regu14 lations required by subparagraph (A) shall re15 quire that each declaration of an importer made 

16 pursuant to paragraph (1) with respect to a 

17 covered product shall accompany the entry sum18 mary documentation for such product or, in the 

19 case of repeated transactions, may be submitted 

20 on an annual basis. 

21 (4) PENALTIES.—Any person who fails to pro22 vide a declaration required under paragraph (1), or 

23 files a false declaration, shall be subject to any ap24 propriate penalty under section 592 of the Tariff 

25 Act of 1930 (19 U.S.C. 1592) or title 18, United 


PWALKER on DSK7TPTVN1PROD with BILLS
17 

•S 1946 IS

1 States Code, with respect to importation of a cov2 ered product. 

3 (e) REGULATIONS.— 

4 (1) IN GENERAL.—Not later than 1 year after 

5 the date of the enactment of this Act, the Secretary 

6 of Commerce, the Commissioner of U.S. Customs 

7 and Border Protection, and each head of an applica8 ble agency shall prescribe regulations to carry out 

9 this section, including the establishment of minimum 

10 values and quantities under subsection (a)(4). 

11 (2) INTERAGENCY COOPERATION.—The Sec12 retary of Commerce, the Commissioner responsible 

13 for U.S. Customs and Border Protection, and each 

14 head of an applicable agency shall cooperate and 

15 consult with one another for the purpose of— 

16 (A) prescribing consistent regulations to 

17 the extent necessary for the effective and effi18 cient sharing of information and establishment 

19 of systems and procedures necessary to carry 

20 out this section; and 

21 (B) establishing minimum values and 

22 quantities under subsection (a)(4), and to the 

23 extent advisable and practicable for the purpose 

24 of establishing consistent minimum require25 ments. 


PWALKER on DSK7TPTVN1PROD with BILLS
18 

•S 1946 IS

1 SEC. 6. STUDY ON REGISTRATION OF AGENTS OF FOREIGN 

2 FOOD PRODUCERS AUTHORIZED TO ACCEPT 

3 SERVICE OF PROCESS IN THE UNITED 

4 STATES. 

5 Not later than 1 year after the date of the enactment 

6 of this Act, the Secretary of Agriculture and the Commis7 sioner of Food and Drugs shall jointly— 

8 (1) complete a study on the feasibility and ad9 visability of requiring foreign producers of food dis10 tributed in commerce to establish a registered agent 

11 in the United States who is authorized to accept 

12 service of process on behalf of such producers for 

13 the purpose of all civil and regulatory actions in 

14 State and Federal courts; and 

15 (2) submit to Congress a report on the findings 

16 of the Secretary with respect to such study. 

17 SEC. 7. STUDY ON REGISTRATION OF AGENTS OF FOREIGN 

18 MANUFACTURERS AND PRODUCERS OF COM19 PONENT PARTS WITHIN COVERED PROD20 UCTS. 

21 Not later than 2 years after the date of the enact22 ment of this Act, the head of each applicable agency 

23 shall— 

24 (1) complete a study on determining feasible 

25 and advisable methods of requiring manufacturers or 

26 producers of component parts within covered prodVerDate Mar 15 2010 02:54 Dec 06, 2011 Jkt 099200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S1946.IS S1946

PWALKER on DSK7TPTVN1PROD with BILLS
19 

•S 1946 IS

1 ucts manufactured or produced outside the United 

2 States and distributed in commerce to establish reg3 istered agents in the United States who are author4 ized to accept service of process on behalf of such 

5 manufacturers or producers for the purpose of all 

6 civil and regulatory actions in State and Federal 

7 courts; and 

8 (2) submit to Congress a report on the findings 

9 of the head of the applicable agency with respect to 

10 the study. 

11 SEC. 8. RELATIONSHIP WITH OTHER LAWS. 

12 Nothing in this Act shall affect the authority of any 

13 State to establish or continue in effect a provision of State 

14 law relating to service of process or personal jurisdiction, 

15 except to the extent that such provision of law is incon16 sistent with the provisions of this Act, and then only to 

17 the extent of such inconsistency. 

Æ 


PWALKER on DSK7TPTVN1PROD with BILLS