II

106TH CONGRESS

2D SESSION S. 3070

To amend title 18, United States Code, to establish criminal penalties for

distribution of defective products, to amend chapter 111 of title 28,

United States Code, relating to protective orders, sealing of cases, and

disclosures of discovery information in civil actions, and for other purposes.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 19, 2000

Mrs. FEINSTEIN (for herself and Mr. KOHL) introduced the following bill;

which was read twice and referred to the Committee on the Judiciary

A BILL

To amend title 18, United States Code, to establish criminal

penalties for distribution of defective products, to amend

chapter 111 of title 28, United States Code, relating

to protective orders, sealing of cases, and disclosures

of discovery information in civil actions, 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 ‘‘Defective Product Pen5 alty Act of 2000’’.
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1 SEC. 2. DISTRIBUTION OF A DEFECTIVE PRODUCT.

2 (a) IN GENERAL.—Chapter 11 of title 18, United

3 States Code, is amended by adding at the end the fol4 lowing:

5 ‘‘§ 226. Distribution of a defective product

6 ‘‘(a) DEFINITIONS.—In this section:

7 ‘‘(1) DEFECTIVE PRODUCT.—The term ‘defec8 tive product’ means a product with some flaw in de9 sign, manufacture, assembly, or instruction that ren10 ders the product dangerous to human life and limb

11 beyond the reasonable and accepted risk associated

12 with such or similar products lacking such a flaw.

13 ‘‘(2) SERIOUS BODILY INJURY.—The term ‘seri14 ous bodily injury’ means bodily injury that

15 involves—

16 ‘‘(A) a substantial risk of death;

17 ‘‘(B) extreme physical pain; or

18 ‘‘(C) injury to, or impairment of, the func19 tion of a bodily member, organ, or mental fac20 ulty.

21 ‘‘(b) OFFENSE.—

22 ‘‘(1) INTRODUCTION.—Whoever knowingly and

23 willfully introduces into interstate commerce a prod24 uct known by that person to be a defective

25 product—
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1 ‘‘(A) that causes the death of any indi2 vidual shall be imprisoned for a term of up to

3 15 years, fined under this title, or both; and

4 ‘‘(B) that causes serious bodily injury to

5 any individual shall be imprisoned for a term of

6 up to 5 years, fined under this title, or both.

7 ‘‘(2) FAILURE TO DISCLOSE.—Any person who

8 has authority to introduce a product into interstate

9 commerce or withdraw or recall a product from

10 interstate commerce, or who has corporate responsi11 bility for the product, and who knows that the prod12 uct in interstate commerce is a defective product

13 and intentionally fails to disclose the existence of the

14 defect to the appropriate regulatory agency, shall—

15 ‘‘(A) if the defective product, after the dis16 covery and failure to disclose, causes the death

17 of any individual, be imprisoned for a term of

18 up to 15 years, fined under this title, or both;

19 and

20 ‘‘(B) if the defective product, after the dis21 covery and failure to disclose, causes serious

22 bodily injury to any individual, be imprisoned

23 for a term of up to 5 years, fined under this

24 title, or both.’’.
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1 (b) CONFORMING AMENDMENT.—The chapter anal2 ysis for chapter 11 of title 18, United States Code, is

3 amended by adding at the end the following:

‘‘226. Distribution of a defective product.’’.

4 SEC. 3. PROTECTIVE ORDERS AND SEALING OF CASES AND

5 SETTLEMENTS RELATING TO PUBLIC

6 HEALTH OR SAFETY.

7 (a) SHORT TITLE.—This section may be cited as the

8 ‘‘Sunshine in Litigation Act of 2000’’.

9 (b) PROTECTIVE ORDERS AND SEALING OF CASES.—

10 Chapter 111 of title 28, United States Code, is amended

11 by adding at the end the following:

12 ‘‘§ 1660. Protective orders and sealing of cases and

13 settlements relating to public health or

14 safety

15 ‘‘(a) IN GENERAL.—A court shall enter an order

16 under rule 26(c) of the Federal Rules of Civil Procedure

17 restricting the disclosure of information obtained through

18 discovery, an order approving a settlement agreement that

19 would restrict the disclosure of such information, or an

20 order restricting access to court records in a civil case,

21 only after making particularized findings of fact that—

22 ‘‘(1) the order would not restrict the disclosure

23 of information that is relevant to the protection of

24 public health or safety; or
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1 ‘‘(2)(A) the public interest in disclosure of po2 tential health or safety hazards is clearly outweighed

3 by a specific and substantial interest in maintaining

4 the confidentiality of the information or records; and

5 ‘‘(B) the protection from disclosure provided by

6 the order is no broader than necessary to protect the

7 interest in maintaining confidentiality.

8 ‘‘(b) PERIOD OF EFFECTIVENESS.—No order under

9 subsection (a) (other than an order approving a settlement

10 agreement) shall continue in effect after the entry of final

11 judgment unless, at or after entry of the order, the court

12 makes a separate particularized finding of fact that the

13 requirements of paragraph (1) or (2) of subsection (a)

14 have been met.

15 ‘‘(c) BURDEN OF PROOF.—The party that is the pro16 ponent for the entry of an order, as provided under this

17 section, shall have the burden of proof in obtaining the

18 order.

19 ‘‘(d) NO APPROVAL OR ENFORCEMENT OF AGREE20 MENT TO RESTRICT DISCLOSURE.—

21 ‘‘(1) IN GENERAL.—No court of the United

22 States may approve or enforce any provision of an

23 agreement between or among parties to a civil ac24 tion, or approve or enforce an order subject to sub25 section (a), that prohibits or otherwise restricts a
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1 party from disclosing any information relevant to the

2 civil action to any Federal or State agency with au3 thority to enforce laws regulating an activity relating

4 to such information.

5 ‘‘(2) CONFIDENTIALITY.—Any information de6 scribed in paragraph (1) that is disclosed to a Fed7 eral or State agency shall be confidential to the ex8 tent provided by law.’’.

9 (c) CONFORMING AMENDMENT.—The table of sec10 tions for chapter 111 of title 28, United States Code, is

11 amended by adding after the item relating to section 1659

12 the following:

‘‘1660. Protective orders and sealing of cases and settlements relating to public

health or safety.’’.

13 (d) EFFECTIVE DATE.—The amendments made by

14 this section—

15 (1) take effect on the date that is 30 days after

16 the date of enactment of this Act; and

17 (2) apply only to orders entered in civil actions

18 or agreements entered into on or after that date.

19 SEC. 4. MOTOR VEHICLE SAFETY STANDARDS AND COMPLI20 ANCE.

21 (a) REQUIREMENT OF TESTING BEFORE CERTIFI22 CATION OF COMPLIANCE.—Section 30115 of title 49,

23 United States Code, is amended in the first sentence by
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1 striking ‘‘A manufacturer’’ and inserting ‘‘After con2 ducting appropriate testing, a manufacturer’’.

3 (b) NOTIFICATION OF DEFECTS AND NONCOMPLI4 ANCE.—Section 30118 of title 49, United States Code, is

5 amended—

6 (1) in subsections (a), (b)(1), and (c), by insert7 ing ‘‘, original equipment,’’ before ‘‘or replacement

8 equipment’’ each place it appears; and

9 (2) in subsection (c)—

10 (A) by redesignating paragraphs (1) and

11 (2) as subparagraphs (A) and (B), respectively,

12 and indenting appropriately;

13 (B) by striking ‘‘A manufacturer’’ and in14 serting the following:

15 ‘‘(1) ACTUAL DEFECTS OR NONCOMPLIANCE.—

16 A manufacturer’’; and

17 (C) by adding at the end the following:

18 ‘‘(2) DUTY TO LEARN OF POTENTIAL DEFECTS

19 OR NONCOMPLIANCE.—A manufacturer of a motor

20 vehicle, original equipment, or replacement equip21 ment shall—

22 ‘‘(A) review and consider information con23 cerning motor vehicle accidents or incidents in

24 vehicles or equipment in cases in which there

25 are serious personal injuries, deaths, or fires,
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1 including information received from any foreign

2 source, to learn whether the vehicle or equip3 ment contains a defect or does not comply with

4 an applicable motor vehicle safety standard; and

5 ‘‘(B) notify the Secretary if the manufac6 turer has reason to believe that a defect or non7 compliance may exist.’’.

8 (c) EXTENSION OF PERIOD DURING WHICH REM9 EDIES FOR DEFECTS AND NONCOMPLIANCE SHALL BE

10 PROVIDED WITHOUT CHARGE.—Section 30120(g)(1) of

11 title 49, United States Code, is amended—

12 (1) by striking ‘‘8 calendar years’’ and inserting

13 ‘‘10 calendar years’’; and

14 (2) by striking ‘‘3 calendar years’’ and inserting

15 ‘‘5 calendar years’’.

16 (d) CIVIL PENALTY.—Section 30165(a) of title 49,

17 United States Code, is amended—

18 (1) in the first sentence, by striking ‘‘$1,000’’

19 and inserting ‘‘$10,000’’; and

20 (2) by striking the last sentence.

21 (e) PROVISION OF COPIES OF ALL COMMUNICATIONS

22 ABOUT DEFECTS AND NONCOMPLIANCE.—Section

23 30166(f) of title 49, United States Code, is amended—
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1 (1) by inserting ‘‘(whether the dealers, owners,

2 or purchasers are located in the United States or in

3 a foreign country)’’ before ‘‘about’’; and

4 (2) by inserting ‘‘in the United States’’ before

5 the period at the end.

Æ