II 

109TH CONGRESS 

1ST SESSION S. 389 

To provide for fire safety standards for cigarettes, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 15, 2005 

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

to the Committee on Commerce, Science, and Transportation 

A BILL 

To provide for 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. 

4 This Act may be cited as the ‘‘Cigarette Fire Safety 

5 Act of 2005’’. 

6 SEC. 2. FINDINGS. 

7 The Congress makes the following findings: 

8 (1) Cigarette ignited fires are the leading cause 

9 of fire deaths in the United States. 

10 (2) In 1999 there were 807 deaths from ciga11 rette ignited fires, 2,193 civilian injuries from such 
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1 fires, and $559,100,000 in property damage caused 

2 by such fires. 

3 (3) Nearly 100 children are killed each year 

4 from cigarette related fires. 

5 (4) For over 20 years former Member of Con6 gress Joseph Moakley worked on behalf of burn vic7 tims, firefighters, and every individual who has lost 

8 a loved one in a fire. By securing enactment of the 

9 Cigarette Safety Act of 1984 and the Fire Safe Cig10 arette Act of 1990, Joseph Moakley completed the 

11 necessary technical work for a cigarette fire safety 

12 standard and paved the way for a national standard. 

13 (5) It is appropriate for the Congress to require 

14 by law the establishment of a cigarette fire safety 

15 standard for the manufacture and importation of 

16 cigarettes. 

17 (6) A recent study by the Consumer Product 

18 Safety Commission found that the cost of the loss of 

19 human life and personal property from not having a 

20 cigarette fire safety standard is $4,600,000,000 per 

21 year. 

22 (7) It is appropriate that the regulatory exper23 tise of the Consumer Product Safety Commission be 

24 used to implement a cigarette fire safety standard. 
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1 SEC. 3. CIGARETTE FIRE SAFETY STANDARD. 

2 (a) IN GENERAL.— 

3 (1) REQUIREMENT FOR STANDARD.—Not later 

4 than 18 months after the date of the enactment of 

5 this Act, the Commission shall, by rule, prescribe 

6 one or more fire safety standards for cigarettes that, 

7 except as provided in this Act, are substantively the 

8 same as the standards set forth by the State of New 

9 York in Part 429 of Title 18 of the Official Com10 pilation of Codes, Rules and Regulations of the 

11 State of New York, as promulgated on December 

12 31, 2003 (in this Act referred to as the ‘‘New York 

13 standard’’), including the Appendix to such Part. 

14 (2) CIGARETTES WITH UNIQUE CHARACTERIS15 TICS.—In adapting section 4(c) of such Part 429, if 

16 the Commission determines that a cigarette, because 

17 of its unique or nontraditional characteristics, can18 not be tested in accordance with the test method 

19 prescribed by the Commission, the manufacturer of 

20 such cigarette may propose a test method and per21 formance standard for such cigarette. If the Com22 mission finds the proposed method and standard to 

23 be equivalent to the test method and performance 

24 standard otherwise established by the Commission, 

25 the Commission may approve the method and stand26 ard and the manufacturer of such cigarette may em-
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1 ploy such test method and performance standard to 

2 certify the cigarette pursuant to rules prescribed by 

3 this Act. 

4 (3) COMMISSION.—In this Act, the term ‘‘Com5 mission’’ means the Consumer Product Safety Com6 mission. 

7 (b) PROCEDURE.— 

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

9 (a), and any modification thereof, shall be prescribed 

10 in accordance with section 553 of title 5, United 

11 States Code. 

12 (2) MODIFICATIONS.— 

13 (A) MODIFICATION BY SPONSOR.—If the 

14 sponsor of the testing methodology used under 

15 subsection (a)(2) modifies the testing method16 ology in any material respect, the sponsor shall 

17 notify the Commission of the modification, and 

18 the Commission may incorporate the modifica19 tion in the rule prescribed under subsection (a) 

20 if the Commission determines that the modifica21 tion will enhance a fire safety standard estab22 lished under subsection (a)(2). 

23 (B) MODIFICATION BY COMMISSION.—The 

24 Commission may modify the rule prescribed 

25 under subsection (a), including the test require-
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1 ments specified in subsection (a)(2), in whole or 

2 in part, only if the Commission determines that 

3 compliance with such modification is technically 

4 feasible and will enhance a fire safety standard 

5 established under that subsection. Any such 

6 modification shall not take effect earlier than 3 

7 years after the date on which the rule is first 

8 issued. 

9 (3) INAPPLICABILITY OF CERTAIN LAWS.— 

10 (A) IN GENERAL.—No Federal law or Ex11 ecutive order, including the laws listed in sub12 paragraph (B) but not including chapters 5, 6, 

13 7, and 8 of title 5, United States Code, com14 monly referred to as the Administrative Proce15 dures Act, may be construed to apply to the 

16 promulgation of the rule required by subsection 

17 (a), or a modification of the rule under para18 graph (2) of this subsection. 

19 (B) INCLUDED LAWS.—The Federal laws 

20 referred to in subparagraph (A) include the fol21 lowing: 

22 (i) The Consumer Product Safety Act 

23 (15 U.S.C. 2051 et seq.). 

24 (ii) Chapter 6 of title 5, United States 

25 Code. 
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1 (iii) The National Environmental Pol2 icy Act of 1969 (42 U.S.C. 4321 et seq.). 

3 (iv) The Small Business Regulatory 

4 Enforcement Fairness Act of 1996 (Public 

5 Law 104–121), and the amendments made 

6 by that Act. 

7 (c) EFFECTIVE DATE.—The Commission shall speci8 fy in the rule prescribed under subsection (a) the effective 

9 date of the rule. The effective date may not be later than 

10 24 months after the date of the enactment of this Act. 

11 (d) TREATMENT OF STANDARD.— 

12 (1) IN GENERAL.—The fire safety standard 

13 promulgated under subsection (a) shall be treated as 

14 a consumer product safety standard promulgated 

15 under the Consumer Product Safety Act (15 U.S.C. 

16 2051 et seq.), except as provided in section 4. 

17 (2) TREATMENT OF CIGARETTES.—A cigarette 

18 shall be treated as a consumer product under section 

19 3(a)(1)(B) of the Consumer Product Safety Act (15 

20 U.S.C. 2052(a)(1)(B)) for purposes of this Act and 

21 for purposes of sections 17 and 18 of the Consumer 

22 Product Safety Act (15 U.S.C. 2066, 2067). 

23 SEC. 4. PREEMPTION. 

24 (a) IN GENERAL.—This Act, and any cigarette fire 

25 safety standard established or modified pursuant to sec-
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1 tion 3, may not be construed to preempt or otherwise af2 fect in any way any law or regulation that prescribes a 

3 fire safety standard for cigarettes— 

4 (1) set forth by the State of New York in the 

5 New York standard; or 

6 (2) promulgated by any State that is more 

7 stringent than the fire safety standard for cigarettes 

8 established under this section. 

9 (b) PRIVATE REMEDIES.—The provisions of section 

10 25 of the Consumer Product Safety Act (15 U.S.C. 2074) 

11 shall apply with respect to the fire safety standard promul12 gated under section 3(a) of this Act. 

13 SEC. 5. SCOPE OF JURISDICTION OF CONSUMER PRODUCT 

14 SAFETY COMMISSION. 

15 Except as otherwise provided in this Act, the Com16 mission shall have no jurisdiction over tobacco or tobacco 

17 products. 

18 SEC. 6. AUTHORIZATION OF APPROPRIATIONS. 

19 (a) AUTHORIZATION OF APPROPRIATIONS.—There is 

20 authorized to be appropriated to the Consumer Product 

21 Safety Commission for fiscal year 2006, $2,000,000 for 

22 purposes of carrying out this Act. 

23 (b) AVAILABILITY.—Amounts appropriated pursuant 

24 to subsection (a) shall remain available until expended. 

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