II 

111TH CONGRESS 

1ST SESSION S. 1606 

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. 

IN THE SENATE OF THE UNITED STATES 

AUGUST 6, 2009 

Mr. WHITEHOUSE (for himself, Mr. DURBIN, and Mr. SESSIONS) 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, and for other purposes. 

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 2009’’. 

6 SEC. 2. FINDINGS. 

7 Congress makes the following findings: 


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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 Nov 24 2008 02:54 Aug 08, 2009 Jkt 079200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1606.IS S1606

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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 manufactures or producers 

15 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 


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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 

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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 14th amendment 

5 to the Constitution govern United States court as6 sertions of 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) Creating a competitive advantage for ei13 ther foreign or domestic manufacturers violates the 

14 principles of United States trade agreements with 

15 other countries. 

16 (19) In choosing to import products into the 

17 United States, a foreign manufacturer or producer 

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

19 a foreign manufacturer or producer thereby acknowl20 edges that it is subject to the personal jurisdiction 

21 of the State and Federal courts in at least one 

22 State. 

23 SEC. 3. SENSE OF CONGRESS. 

24 It is the sense of Congress that— 


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1 (1) foreign manufacturers and producers whose 

2 products are sold in the United States should not be 

3 able to avoid liability simply because of difficulties 

4 relating to serving process upon them; 

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

6 manufacturers and producers of foreign products 

7 distributed in the United States should be required, 

8 by regulation, to register an agent in the United 

9 States who is authorized to accept service of process 

10 for such manufacturer or producer; 

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

12 businesses that foreign manufacturers and producers 

13 often seek to avoid judicial consideration of their ac14 tions by asserting that United States courts lack 

15 personal jurisdiction over them; 

16 (4) those who benefit from importing products 

17 into United States markets should expect to be sub18 ject to the jurisdiction of at least one court within 

19 the United States; 

20 (5) importing products into the United States 

21 should be understood as consent to the account22 ability that the legal system of the United States en23 sures for all manufacturers and producers, foreign, 

24 and domestic; 


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1 (6) importers recognize the scope of opportuni2 ties presented to them by United States markets but 

3 also should recognize that products imported into 

4 the United States must satisfy Federal and State 

5 safety standards established by statute, regulation, 

6 and common law; 

7 (7) foreign manufacturers should recognize that 

8 they are responsible for the contracts they enter into 

9 with United States companies; 

10 (8) foreign manufacturers should act respon11 sibly and recognize that they operate within the con12 straints of the United States legal system when they 

13 import products into the United States; 

14 (9) foreign manufacturers who are unwilling to 

15 act and recognize as described in paragraphs (6), 

16 (7), and (8) should not have access to United States 

17 markets; 

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

19 States trading partners should not put burdens on 

20 foreign manufacturers and importers that do not 

21 apply to domestic companies; 

22 (11) it is fair to ensure that foreign manufac23 turers, whose products are distributed in commerce 

24 in the United States, are subject to the jurisdiction 

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1 cause all United States manufacturers are subject to 

2 the jurisdiction of the State and Federal courts in 

3 at least one State; and 

4 (12) it should be understood that, by reg5 istering an agent for service of process in the United 

6 States, the foreign manufacturer or producer ac7 knowledges consent to the jurisdiction of the State 

8 in which the registered agent is located. 

9 SEC. 4. DEFINITIONS. 

10 In this Act: 

11 (1) APPLICABLE AGENCY.—The term ‘‘applica12 ble agency’’ means, with respect to covered prod13 ucts— 

14 (A) described in subparagraphs (A) and 

15 (B) of paragraph (3), the Food and Drug Ad16 ministration; 

17 (B) described in paragraph (3)(C), the 

18 Consumer Product Safety Commission; 

19 (C) described in subparagraphs (D) and 

20 (E) of paragraph (3), the Environmental Pro21 tection Agency. 

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

23 trade, traffic, commerce, or transportation— 

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

25 place outside thereof; or 


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

2 or transportation described in subparagraph 

3 (A). 

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

5 product’’ means any of the following: 

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

7 terms are defined in section 201 of the Federal 

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

9 321). 

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

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

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

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

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

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

16 (D) A chemical substance or new chemical 

17 substance, as such terms are defined in section 

18 3 of the Toxic Substances Control Act (15 

19 U.S.C. 2602). 

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

21 section 2 of the Federal Insecticide, Fungicide, 

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

23 (4) DISTRIBUTE IN COMMERCE.—The term 

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

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1 merce, or to hold for sale or distribution after intro2 duction into commerce. 

3 SEC. 5. REGISTRATION OF AGENTS OF FOREIGN MANUFAC4 TURERS AUTHORIZED TO ACCEPT SERVICE 

5 OF PROCESS IN THE UNITED STATES. 

6 (a) REGISTRATION.— 

7 (1) IN GENERAL.—Not later than 180 days 

8 after the date of the enactment of this Act and ex9 cept as provided in paragraph (3), the head of each 

10 applicable agency shall require foreign manufactur11 ers and producers of covered products distributed in 

12 commerce (or component parts that will be used in 

13 the United States to manufacture such products) to 

14 establish a registered agent in the United States 

15 who is authorized to accept service of process on be16 half of such manufacturer or producer for the pur17 pose of all civil and regulatory actions in State and 

18 Federal courts, if such service is made in accord 

19 with the State or Federal rules for service of process 

20 in the State in which the case or regulatory action 

21 is brought. 

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

23 agency shall require that an agent of a foreign man24 ufacturer or producer registered under paragraph 

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1 tion to the importation, distribution, or sale of the 

2 products of such foreign manufacturer or producer. 

3 (3) MINIMUM SIZE.—Paragraph (1) shall only 

4 apply to foreign manufacturers and producers that 

5 manufacture or produce covered products (or compo6 nent parts that will be used in the United States to 

7 manufacture such products) in excess of a minimum 

8 value or quantity established by the head of the ap9 plicable agency under this section. 

10 (b) REGISTRY OF AGENTS OF FOREIGN MANUFAC11 TURERS.— 

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

13 shall, in cooperation with each head of an applicable 

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

15 agents registered under subsection (a). 

16 (2) AVAILABILITY.—The Secretary of Com17 merce shall make the registry established under 

18 paragraph (1) available to the public through the 

19 Internet website of the Department of Commerce. 

20 (c) CONSENT TO JURISDICTION.—A foreign manu21 facturer or producer of covered products that registers an 

22 agent under this section thereby consents to the personal 

23 jurisdiction of the State or Federal courts of the State 

24 in which the registered agent is located for the purpose 

25 of any civil or regulatory proceeding. 


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1 (d) REGULATIONS.—Not later than the date de2 scribed in subsection (a)(1), the Secretary of Commerce 

3 and each head of an applicable agency shall prescribe reg4 ulations to carry out this section. 

5 SEC. 6. PROHIBITION OF IMPORTATION OF PRODUCTS OF 

6 MANUFACTURERS WITHOUT REGISTERED 

7 AGENTS IN UNITED STATES. 

8 (a) IN GENERAL.—Beginning on the date that is 180 

9 days after the date the regulations required under section 

10 5(d) are prescribed, a person may not import into the 

11 United States a covered product (or component part that 

12 will be used in the United States to manufacture a covered 

13 product) if such product (or component part) or any part 

14 of such product (or component part) was manufactured 

15 or produced outside the United States by a manufacturer 

16 or producer who does not have a registered agent de17 scribed in section 5(a) whose authority is in effect on the 

18 date of the importation. 

19 (b) ENFORCEMENT.—The Secretary of Homeland Se20 curity shall prescribe regulations to enforce the prohibition 

21 in subsection (a). 


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1 SEC. 7. 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. 8. RELATIONSHIP WITH OTHER LAWS. 

18 Nothing in this Act shall affect the authority of any 

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

20 law relating to service of process or personal jurisdiction, 

21 except to the extent that such provision of law is incon22 sistent with the provisions of this Act, and then only to 

23 the extent of such inconsistency. 

Æ 


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