S.Amdt. 4550

SA 4550. Mr. WHITEHOUSE (for himself, Mr. Bennet, Mr. Brown of
Massachusetts, Mr. Brown of Ohio, Mr. Corker, Mr. Durbin, Mrs.
Feinstein, Mr. Graham, Mr. Kaufman, Mr. Leahy, Mr. LeMieux, Mrs.
McCaskill, Mr. Menendez, Mr. Nelson of Florida, Mr. Pryor, Mr. Schumer,
Mr. Sessions, Mr. Specter, and Mr. Warner) submitted an amendment
intended to be proposed to amendment SA 4519 proposed by Mr. Reid (for
himself, Mr. Baucus, and Ms. Landrieu) to the bill H.R. 5297, to create
the Small Business Lending Fund Program to direct the Secretary of the
Treasury to make capital investments in eligible institutions in order
to increase the availability of credit for small businesses, to amend
the Internal Revenue Code of 1986 to provide tax incentives for small
business job creation, and for other purposes; which was ordered to lie
on the table; as follows:

On page 284, between lines 9 and 10, insert the following:

TITLE V--REGISTRATION OF AGENTS OF FOREIGN MANUFACTURERS AUTHORIZED TO
ACCEPT SERVICE OF PROCESS

SEC. 5001. 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. 5002. 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

[[Page S6452]]

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. 5003. DEFINITIONS.

In this title:
(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. 5004. 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 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--
(A) for the purpose of any civil or regulatory proceeding
in State or Federal court relating--
(i) to a covered product; and
(ii) to--

(I) commerce in the United States;
(II) an injury or damage suffered in the United States; or
(III) conduct within the United States; and

(B) if such service is made in accord with the State or
Federal rules for service of process in the State of the
civil or regulatory proceeding.
(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) 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.--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 relating--
(1) to a covered product; and
(2) to--
(A) commerce in the United States;
(B) an injury or damage suffered in the United States; or
(C) conduct within the United States.
(d) Declarations.--
(1) In general.--Not later than 180 days after the date of
the enactment of this Act, any person importing a covered
product manufactured outside the United States shall provide
a declaration to U.S. Customs and Border Protection that--
(A) the person has made appropriate inquiry, including
seeking appropriate documentation from the exporter of the
covered product and consulting the registry of agents of
foreign manufacturers described in 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 established a
registered agent in the United States as required under
subsection (a).
(2) Penalties.--Any person who fails to provide a
declaration required under paragraph (1), or files a false
declaration, shall be subject to any applicable civil or
criminal penalty, including seizure and forfeiture, that may
be imposed under the customs laws of the United States or
title 18, United States Code, with respect to the importation
of a covered product.
(e) Regulations.--Not later than the date described in
subsection (a)(1), 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)(3).

SEC. 5005. 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. 5006. STUDY ON REGISTRATION OF AGENTS OF FOREIGN
MANUFACTURERS AND PRODUCERS OF COMPONENT PARTS
WITHIN COVERED PRODUCTS.

Not later than 1 year 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. 5007. RELATIONSHIP WITH OTHER LAWS.

Nothing in this title 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 title, and then only
to the extent of such inconsistency.
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