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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1606 Introduced in Senate (IS)]

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.

    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 2009''.

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 
        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.

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 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.

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 (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) 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).
                    (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) 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.--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) Location.--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) Minimum size.--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) 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 to the 
        public through the Internet website of the Department of 
        Commerce.
    (c) Consent to Jurisdiction.--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) Regulations.--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.

SEC. 6. PROHIBITION OF IMPORTATION OF PRODUCTS OF MANUFACTURERS WITHOUT 
              REGISTERED AGENTS IN UNITED STATES.

    (a) In General.--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) Enforcement.--The Secretary of Homeland Security shall 
prescribe regulations to enforce the prohibition in subsection (a).

SEC. 7. 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. 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.
                                 <all>
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