II

106TH CONGRESS

1ST SESSION S. 730

To direct the Consumer Product Safety Commission to promulgate fire safety

standards for cigarettes, and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 25, 1999

Mr. DURBIN introduced the following bill; which was read twice and referred

to the Committee on Commerce, Science, and Transportation

A BILL

To direct the Consumer Product Safety Commission to promulgate fire safety standards for cigarettes, 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, FINDINGS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Fire Safe Cigarette Act of 1999’’.

6 (b) FINDINGS.—Congress finds that—

7 (1) cigarette ignited fires are the leading cause

8 of fire deaths in the United States;

9 (2) in 1996 cigarette ignited fires caused—

10 (A) 1,083 deaths;
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1 (B) 2,809 civilian injuries; and

2 (C) $420,000,000 in property damage;

3 (3) each year, more than 100 children are killed

4 from cigarette-related fires;

5 (4) the technical work necessary to achieve a

6 cigarette fire safety standard has been accomplished

7 under the Cigarette Safety Act of 1984 (15 U.S.C.

8 2054 note) and the Fire Safe Cigarette Act of 1990

9 (15 U.S.C. 2054 note);

10 (5) it is appropriate for Congress to require the

11 establishment of a cigarette fire safety standard for

12 the manufacture and importation of cigarettes;

13 (6) the most recent study by the Consumer

14 Product Safety Commission found that the cost of

15 the loss of human life and personal property from

16 the absence of a cigarette fire safety standard is

17 $6,000,000,000 a year; and

18 (7) it is appropriate that the regulatory exper19 tise of the Consumer Product Safety Commission be

20 used to implement a cigarette fire safety standard.

21 SEC. 2. DEFINITIONS.

22 In this Act:

23 (1) COMMISSION.—The term ‘‘Commission’’

24 means the Consumer Product Safety Commission.
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1 (2) CIGARETTE.—The term ‘‘cigarette’’ has the

2 meaning given that term in section 3 of the Federal

3 Cigarette Labeling and Advertising Act (15 U.S.C.

4 1332).

5 (3) STOCKPILING.—The term ‘‘stockpiling’’

6 means the manufacturing or importing of a cigarette

7 during the period beginning on the date of promul8 gation of a rule under section 3(a) and ending on

9 the effective date of that rule, at a rate greater than

10 the rate at which cigarettes were manufactured or

11 imported during the 1-year period immediately pre12 ceding the date of promulgation of that rule.

13 SEC. 3. CIGARETTE FIRE SAFETY STANDARD.

14 (a) IN GENERAL.—

15 (1) PROMULGATION OF CIGARETTE FIRE SAFE16 TY STANDARD.—Not later than 18 months after the

17 date of enactment of this Act, the Commission shall

18 promulgate a rule that establishes a cigarette fire

19 safety standard for cigarettes to reduce the risk of

20 ignition presented by cigarettes.

21 (2) REQUIREMENTS.—In establishing the ciga22 rette fire safety standard under paragraph (1), the

23 Commission shall—

24 (A) consult with the Director of the Na25 tional Institute of Standards and Technology
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1 and make use of such capabilities of the as the

2 Commission considers necessary;

3 (B) seek the advice and expertise of the

4 heads of other Federal agencies and State agen5 cies engaged in fire safety; and

6 (C) take into account the final report to

7 Congress made by the Commission and the

8 Technical Study Group on Cigarette and Little

9 Cigar Fire Safety established under section 3 of

10 the Fire Safe Cigarette Act of 1990 (15 U.S.C.

11 2054 note), that includes a finding that ciga12 rettes with a low ignition propensity were al13 ready on the market at the time of the prepara14 tion of the report.

15 (b) STOCKPILING.—The Commission shall include in

16 the rule promulgated under subsection (a) a prohibition

17 on the stockpiling of cigarettes covered by the rule.

18 (c) EFFECTIVE DATE OF RULE.—The rule promul19 gated under subsection (a) shall take effect not later than

20 30 months after the date of the enactment of this Act.

21 (d) PROCEDURE.—

22 (1) IN GENERAL.—The rule under subsection

23 (a) shall be promulgated in accordance with section

24 553 of title 5, United States Code.
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1 (2) CONSTRUCTION.—Except as provided in

2 paragraph (1), no other provision of Federal law

3 shall be construed to apply with respect to the pro4 mulgation of a rule under subsection (a),

5 including—

6 (A) the Consumer Product Safety Act (15

7 U.S.C. 2051 et seq.);

8 (B) chapter 6 of title 5, United States

9 Code;

10 (C) the National Environmental Policy Act

11 of 1969 (42 U.S.C. 4321 et seq.); and

12 (D) the Small Business Regulatory En13 forcement Fairness Act of 1996 (Public Law

14 104–121) and the amendments made by that

15 Act.

16 (e) JUDICIAL REVIEW.—

17 (1) GENERAL RULE.—

18 (A) IN GENERAL.—Any person who is ad19 versely affected by the rule promulgated under

20 subsection (a) may, at any time before the 60th

21 day after the Commission promulgates the rule,

22 file a petition with the United States Court of

23 Appeals for the District of Columbia Circuit or

24 for any other circuit in which that person re-
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1 sides or has its principal place of business to

2 obtain judicial review of the rule.

3 (B) PETITION.—Upon the filing of a peti4 tion under subparagraph (A), a copy of the pe5 tition shall be transmitted by the clerk of the

6 court to the Secretary of Commerce. The Com7 mission shall file in the court the record of the

8 proceedings on which the Commission based the

9 rule, in the same manner as is prescribed for

10 the review of an order issued by an agency

11 under section 2112 of title 28, United States

12 Code.

13 (2) ADDITIONAL EVIDENCE.—

14 (A) IN GENERAL.—With respect to a peti15 tion filed under paragraph (1), the court may

16 order additional evidence (and evidence in re17 buttal thereof) to be taken before the Commis18 sion in a hearing or in such other manner, and

19 upon such terms and conditions, as the court

20 considers appropriate, if the petitioner—

21 (i) applies to the court for leave to ad22 duce additional evidence; and

23 (ii) demonstrates, to the satisfaction

24 of the court, that—
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1 (I) such additional evidence is

2 material; and

3 (II) there was no opportunity to

4 adduce such evidence in the pro5 ceeding before the Commission.

6 (B) MODIFICATION.—With respect to the

7 rule promulgated by the Commission under sub8 section (a), the Commission—

9 (i) may modify the findings of fact of

10 the Commission, or make new findings, by

11 reason of any additional evidence taken by

12 a court under subparagraph (A); and

13 (ii) if the Commission makes a modi14 fication under clause (i), shall file with the

15 court the modified or new findings, to16 gether with such recommendations as the

17 Commission determines to be appropriate,

18 for the modification of the rule, to be pro19 mulgated as a final rule under subsection

20 (a).

21 (3) COURT JURISDICTION.—Upon the filing of

22 a petition under paragraph (1), the court shall have

23 jurisdiction to review the rule of the Commission, as

24 modified under paragraph (2), in accordance with

25 chapter 7 of title 5, United States Code.
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1 (f) SMALL BUSINESS REVIEW.—Section 30 of the

2 Small Business Act (15 U.S.C. 657) shall not apply with

3 respect to—

4 (1) a cigarette fire safety standard promulgated

5 by the Commission under subsection (a); or

6 (2) any agency action taken to enforce that

7 standard.

8 SEC. 4. ENFORCEMENT.

9 (a) PROHIBITION.—No person may—

10 (1) manufacture or import a cigarette, unless

11 the cigarette is in compliance with a cigarette fire

12 safety standard promulgated under section 3(a); or

13 (2) fail to provide information as required

14 under this Act.

15 (b) PENALTY.—A violation of subsection (a) shall be

16 considered a violation of section 19 of the Consumer Prod17 uct Safety Act (15 U.S.C. 2068).

18 SEC. 5. PREEMPTION.

19 (a) IN GENERAL.—This Act, including the cigarette

20 fire safety standard promulgated under section 3(a), shall

21 not be construed to preempt or otherwise affect in any

22 manner any law of a State or political subdivision thereof

23 that prescribes a fire safety standard for cigarettes that

24 is more stringent than the standard promulgated under

25 section 3(a).
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1 (b) DEFENSES.—In any civil action for damages,

2 compliance with the fire safety standard promulgated

3 under section 3(a) may not be admitted as a defense.

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