[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2357 Introduced in House (IH)]






109th CONGRESS
  1st Session
                                H. R. 2357

 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 HOUSE OF REPRESENTATIVES

                              May 12, 2005

Mr. Shuster (for himself, Mr. Holden, Ms. Hart, and Mr. Smith of Texas) 
 introduced the following bill; which was referred to the Committee on 
the Judiciary, and in addition to the Committee on Energy and Commerce, 
for a period to be subsequently determined by the Speaker, in each case 
for consideration of such provisions as fall within the jurisdiction of 
                        the committee concerned

_______________________________________________________________________

                                 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.

    The Congress finds the following:
            (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 (NIOSH), 
        which is part of the federal Centers for Disease Control and 
        Prevention. NIOSH establishes the performance standards for 
        respirators, independently tests and certifies respirators to 
        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'' 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'' means the National Institute for Occupational 
        Safety and Health.
            (3) ``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 and/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'' means any device designed to provide the 
        wearer with respiratory protection against inhalation of 
        hazardous materials.
            (5) ``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 manufacturer or seller of a respirator shall not be subject to 
any claim for defective design or warning 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. This provision shall not apply to a 
respirator that fails to comply with the NIOSH-approved design and 
labeling standards.

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 or any claim which is based 
on such an allegation if such respirator has received a NIOSH approval.
    (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>