1.This Act may be cited as the
Respirator Access Assurance Act of
2005
.
2.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.
3.In this Act:
(1)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)The term NIOSH means the
National Institute for Occupational Safety and Health.
(3)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)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)The term Seller means a person
or entity, including a retailer, distributor, or wholesaler, that is regularly
engaged in selling respirators.
4.Effect of NIOSH
approval of design and labeling
(a)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)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)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.
5.Preemption and
statutory construction
(a)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)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.
6.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.
7.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.