```

[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1406 Introduced in Senate (IS)]

109th CONGRESS
  1st Session
                                S. 1406

 To protect American workers and responders by ensuring the continued 
commercial availability of respirators and to establish rules governing 
    product liability actions against manufacturers and sellers of 
                              respirators.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             July 14, 2005

  Mr. Cornyn introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

 
 To protect American workers and responders by ensuring the continued 
commercial availability of respirators and to establish rules governing 
    product liability actions against manufacturers and sellers of 
                              respirators.

    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 ``Respirator Access Assurance Act of 
2005''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) Each year millions of workers, responders, and citizens 
        in the United States and around the world depend on the 
        availability of respirators made in the United States for 
        protection against exposure to hazardous materials and in the 
        event of terrorist incidents, airborne disease epidemics, and 
        other disasters.
            (2) Respirators are tested, and the design and labeling of 
        respirators is regulated by an independent Federal agency, the 
        National Institute for Occupational Safety and Health, which is 
        part of the Centers for Disease Control and Prevention. NIOSH 
        establishes the performance standards for respirators, 
        independently tests and certifies that respirators meet its 
        standards, and performs follow-up field audits of respirators 
        to ensure continued compliance with NIOSH performance 
        standards. Prior to the establishment of NIOSH, respirators 
        were approved by the United States Bureau of Mines.
            (3) Respirator manufacturers and sellers do not and cannot 
        control or determine the manner in which their products are 
        used.
            (4) Manufacturers and sellers of respirators designed and 
        labeled in compliance with NIOSH requirements have been named 
        as defendants in a substantial number of product liability 
        claims alleging that these NIOSH-approved designs and warnings 
        are defective.
            (5) Respirators are sold in and have an effect on 
        interstate commerce.
            (6) Manufacturers of respirators may cease making such 
        products, in principal part because of the costs of litigation.
            (7) A continued United States capacity to manufacture and 
        distribute respirators is necessary to assure that these 
        products remain available. Lack of availability of respirators 
        will increase risks to the health of millions of American 
        workers and emergency responders.
            (8) The protections set forth in this Act are needed to 
        assure the continued commercial availability of lifesaving 
        respirators.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Manufacturer.--The term ``Manufacturer'' means any 
        person who, in the course of a business conducted for that 
        purpose, designs, makes, produces, packages, or labels any 
        respirator or component part of a respirator, or engages 
        another to do so.
            (2) NIOSH.--The term ``NIOSH'' means the National Institute 
        for Occupational Safety and Health.
            (3) NIOSH approval.--The term ``NIOSH approval'' means a 
        certificate or formal document issued by NIOSH stating that an 
        individual respirator or combination of respirators has met the 
        minimum requirements of part 84 of title 42, Code of Federal 
        Regulations, or part 11 of title 30, Code of Federal 
        Regulations, and that the manufacturer is authorized to use and 
        attach an approval label to any respirator manufactured in 
        conformance with the plans and specifications upon which the 
        approval was based. For purposes of this Act, NIOSH approval 
        shall also mean certification or approval by any Federal 
        Government agency with authority to approve respirators, 
        including the United States Bureau of Mines and the Mine Safety 
        and Health Administration.
            (4) Respirator.--The term ``Respirator'' means any device, 
        including component or replacement parts for a device, designed 
        to provide the wearer with respiratory protection against 
        inhalation of a hazardous atmosphere.
            (5) Seller.--The term ``Seller'' means a person or entity, 
        including a retailer, distributor, or wholesaler, that is 
        regularly engaged in selling respirators.

SEC. 4. EFFECT OF NIOSH APPROVAL OF DESIGN AND LABELING.

    (a) In General.--A manufacturer or seller of a respirator shall not 
be subject to any claim for defective design or warning relating to a 
respirator or any claim which is based on such an allegation if such 
respirator has received a NIOSH approval, and such respirator is 
manufactured in compliance with the NIOSH-approved design and labeling 
in effect on the date of manufacture. This provision shall not apply to 
a respirator that fails to comply with the NIOSH-approved design and 
labeling standards in effect on the date of manufacture.
    (b) Withdrawal of Approval.--Subsection (a) shall not apply to a 
manufacturer or seller of a respirator if NIOSH withdraws its approval 
for the respirator that is the subject of the claim involved based on a 
finding by NIOSH that the manufacturer or seller--
            (1) withheld from or misrepresented to NIOSH material 
        information about the respirator's design or labeling and the 
        respirator otherwise would not have been approved; or
            (2) made an illegal payment to a NIOSH official or employee 
        for the purpose of securing or maintaining approval of the 
        respirator's design or labeling.
    (c) Statute of Limitations.--A statute of limitations that would 
otherwise apply to claims to which subsection (b) applies shall not 
begin to run until the date on which NIOSH withdraws its approval for 
the respirator involved.

SEC. 5. PREEMPTION AND STATUTORY CONSTRUCTION.

    (a) Preemption.--The provisions of this Act shall supersede any and 
all State or local laws insofar as they may now or hereafter relate to 
any claim for defective design or warning relating to a respirator or 
any claim which is based on such an allegation if such respirator 
complied with the NIOSH-approved design and labeling in effect on the 
date of manufacture.
    (b) Statutory Construction.--Nothing in this Act may be construed 
to affect any defense available to a defendant under any other 
provision of State or Federal law, or to create a cause of action or 
Federal court jurisdiction pursuant to section 1331 or 1332 of title 
28, United States Code, that otherwise would not exist under applicable 
law.

SEC. 6. APPLICABILITY.

    This Act applies to any civil action in a Federal or State court, 
on the basis of any legal theory, for harm allegedly caused, directly 
or indirectly, by a respirator, a respirator manufacturer, or a 
respirator seller.

SEC. 7. EFFECTIVE DATE.

    This Act shall become effective upon enactment and shall apply to 
any action that has not proceeded to trial as of the date of enactment, 
regardless of when the respirator was manufactured or sold.
                                 <all>
```