[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1360 Introduced in House (IH)]
109th CONGRESS
1st Session
H. R. 1360
To create a fair and efficient system to resolve claims of victims for
bodily injury caused by asbestos exposure, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 17, 2005
Mr. Kirk (for himself, Mr. Bass, Mr. Platts, Mr. Shimkus, Mr. Kennedy
of Minnesota, and Mr. Dent) introduced the following bill; which was
referred to the Committee on the Judiciary, and in addition to the
Committees on Energy and Commerce, Ways and Means, Education and the
Workforce, and Financial Services, 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 create a fair and efficient system to resolve claims of victims for
bodily injury caused by asbestos exposure, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Fairness in
Asbestos Injury Resolution Act of 2005'' or the ``FAIR Act of 2005''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purpose.
Sec. 3. Definitions.
TITLE I--ASBESTOS CLAIMS RESOLUTION
Subtitle A--Office of Asbestos Disease Compensation
Sec. 101. Establishment of Office of Asbestos Disease Compensation.
Sec. 102. Advisory Committee on Asbestos Disease Compensation.
Sec. 103. Medical Advisory Committee.
Sec. 104. Claimant assistance.
Sec. 105. Physicians Panels.
Sec. 106. Program startup.
Sec. 107. Authority of the Administrator.
Subtitle B--Asbestos disease compensation procedures
Sec. 111. Essential elements of eligible claim.
Sec. 112. General rule concerning no-fault compensation.
Sec. 113. Filing of claims.
Sec. 114. Eligibility determinations and claim awards.
Sec. 115. Medical evidence auditing procedures.
Subtitle C--Medical criteria
Sec. 121. Medical criteria requirements.
Subtitle D--Awards
Sec. 131. Amount.
Sec. 132. Medical monitoring.
Sec. 133. Payment.
Sec. 134. Reduction in benefit payments for collateral sources.
TITLE II--ASBESTOS INJURY CLAIMS RESOLUTION FUND
Subtitle A--Asbestos defendants funding allocation
Sec. 201. Definitions.
Sec. 202. Authority and tiers.
Sec. 203. Subtiers.
Sec. 204. Assessment administration.
Subtitle B--Asbestos Insurers Commission
Sec. 210. Definition.
Sec. 211. Establishment of Asbestos Insurers Commission.
Sec. 212. Duties of Asbestos Insurers Commission.
Sec. 213. Powers of Asbestos Insurers Commission.
Sec. 214. Personnel matters.
Sec. 215. Termination of Asbestos Insurers Commission.
Sec. 216. Expenses and costs of Commission.
Subtitle C--Asbestos Injury Claims Resolution Fund
Sec. 221. Establishment of Asbestos Injury Claims Resolution Fund.
Sec. 222. Management of the Fund.
Sec. 223. Enforcement of payment obligations.
Sec. 224. Interest on underpayment or nonpayment.
TITLE III--JUDICIAL REVIEW
Sec. 301. Judicial review of rules and regulations.
Sec. 302. Judicial review of award decisions.
Sec. 303. Judicial review of participants' assessments.
Sec. 304. Other judicial challenges.
Sec. 305. Stays, exclusivity, and constitutional review.
TITLE IV--MISCELLANEOUS PROVISIONS
Sec. 401. False information.
Sec. 402. Effect on bankruptcy laws.
Sec. 403. Effect on other laws and existing claims.
Sec. 404. Effect on insurance and reinsurance contracts.
Sec. 405. Annual report of the Administrator.
Sec. 406. Rules of construction relating to liability of the United
States Government.
Sec. 407. Rules of construction.
Sec. 408. Violations of environmental and occupational health and
safety requirements.
Sec. 409. Nondiscrimination of health insurance.
TITLE V--ASBESTOS BAN
Sec. 501. Prohibition on asbestos containing products.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) A great number of Americans have been exposed to forms
of asbestos that can have devastating health effects.
(2) Various injuries can be caused by exposure to some
forms of asbestos, including pleural disease and some forms of
cancer.
(3) The injuries caused by asbestos can have latency
periods of up to 40 years, and even limited exposure to some
forms of asbestos may result in injury in some cases.
(4) Asbestos litigation has had a significant detrimental
effect on the country's economy, driving companies into
bankruptcy, diverting resources from those who are truly sick,
and endangering jobs and pensions.
(5) The scope of the asbestos litigation crisis cuts across
every State and virtually every industry.
(6) The United States Supreme Court has recognized that
Congress must act to create a more rational asbestos claims
system. In 1991, a Judicial Conference Ad Hoc Committee on
Asbestos Litigation, appointed by Chief Justice William
Rehnquist, found that the ``ultimate solution should be
legislation recognizing the national proportions of the problem
. . . and creating a national asbestos dispute resolution
scheme . . .''. The Court found in 1997 in Amchem Products Inc.
v. Windsor, 521 U.S. 591, 595 (1997), that ``[t]he argument is
sensibly made that a nationwide administrative claims
processing regime would provide the most secure, fair, and
efficient means of compensating victims of asbestos exposure.''
In 1999, the Court in Ortiz v. Fibreboard Corp., 527 U.S. 819,
821 (1999), found that the ``elephantine mass of asbestos cases
. . . defies customary judicial administration and calls for
national legislation.'' That finding was again recognized in
2003 by the Court in Norfolk & Western Railway Co. v. Ayers,
123 S.Ct. 1210 (2003).
(7) This crisis, and its significant effect on the health
and welfare of the people of the United States, on interstate
and foreign commerce, and on the bankruptcy system, compels
Congress to exercise its power to regulate interstate commerce
and create this legislative solution in the form of a national
asbestos injury claims resolution program to supersede all
existing methods to compensate those injured by asbestos,
except as specified in this Act.
(b) Purpose.--The purpose of this Act is to--
(1) create a privately funded, publicly administered fund
to provide the necessary resources for a fair and efficient
system to resolve asbestos injury claims that will provide
compensation for legitimate present and future claimants of
asbestos exposure as provided in this Act;
(2) provide compensation to those present and future
victims based on the severity of their injuries, while
establishing a system flexible enough to accommodate
individuals whose conditions worsens;
(3) relieve the Federal and State courts of the burden of
the asbestos litigation; and
(4) increase economic stability by resolving the asbestos
litigation crisis that has bankrupted companies with asbestos
liability, diverted resources from the truly sick, and
endangered jobs and pensions.
SEC. 3. DEFINITIONS.
In this Act, the following definitions shall apply:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the Office of Asbestos Disease Compensation
appointed under section 101(b).
(2) Asbestos.--The term ``asbestos'' includes--
(A) chrysotile;
(B) amosite;
(C) crocidolite;
(D) tremolite asbestos;
(E) winchite asbestos;
(F) richterite asbestos;
(G) anthophyllite asbestos;
(H) actinolite asbestos;
(I) any of the minerals listed under subparagraphs
(A) through (H) that has been chemically treated or
altered, and any asbestiform variety, type, or
component thereof; and
(J) asbestos-containing material, such as asbestos-
containing products, automotive or industrial parts or
components, equipment, improvements to real property,
and any other material that contains asbestos in any
physical or chemical form.
(3) Asbestos claim.--
(A) In general.--The term ``asbestos claim'' means
any claim, premised on any theory, allegation, or cause
of action for damages or other relief presented in a
civil action or bankruptcy proceeding, directly,
indirectly, or derivatively arising out of, based on,
or related to, in whole or part, the health effects of
exposure to asbestos, including loss of consortium,
wrongful death, and any derivative claim made by, or on
behalf of, any exposed person or any representative,
spouse, parent, child or other relative of any exposed
person.
(B) Exclusion.--The term does not include claims
alleging damage or injury to tangible property, or
claims for benefits under a workers' compensation law
or veterans' benefits program.
(4) Asbestos claimant.--The term ``asbestos claimant''
means an individual who files a claim under section 113.
(5) Civil action.--The term ``civil action'' means all
suits of a civil nature in State or Federal court, whether
cognizable as cases at law or in equity or in admiralty, but
does not include an action relating to any workers'
compensation law, or a proceeding for benefits under any
veterans' benefits program.
(6) Collateral source compensation.--The term ``collateral
source compensation'' means the compensation that the claimant
received, or is entitled to receive, from a defendant or an
insurer of that defendant, or compensation trust as a result of
a judgment or settlement for an asbestos-related injury that is
the subject of a claim filed under section 113.
(7) Eligible disease or condition.--The term ``eligible
disease or condition'' means, to the extent that the illness
meets the medical criteria requirements established under
subtitle C of title I, asbestosis/pleural disease, severe
asbestosis disease, disabling asbestosis disease, mesothelioma,
lung cancer I, lung cancer II, lung cancer III, and other
cancers.
(8) Fund.--The term ``Fund'' means the Asbestos Injury
Claims Resolution Fund established under section 221.
(9) Insurance receivership proceeding.--The term
``insurance receivership proceeding'' means any State
proceeding with respect to a financially impaired or insolvent
insurer or reinsurer including the liquidation, rehabilitation,
conservation, supervision or ancillary receivership of an
insurer under State law.
(10) Law.--The term ``law'' includes all law, judicial or
administrative decisions, rules, regulations, or any other
principle or action having the effect of law.
(11) Participant.--
(A) In general.--The term ``participant'' means any
person subject to the funding requirements of title II,
including--
(i) any defendant participant subject to
liability for payments under subtitle A of that
title;
(ii) any insurer participant subject to a
payment under subtitle B of that title; and
(iii) any successor in interest of a
participant.
(B) Exception.--
(i) In general.--A defendant participant
shall not include any person protected from any
asbestos claim by reason of an injunction
entered in connection with a plan of
reorganization under chapter 11 of title 11,
United States Code, that has been confirmed by
a duly entered order or judgment of a court
that is no longer subject to any appeal or
judicial review, and the substantial
consummation, as such term is defined in
section 1101(2) of title 11, United States
Code, of such plan of reorganization has
occurred.
(ii) Applicability.--Clause (i) shall not
apply to a person who may be liable under
subtitle A of title II based on prior asbestos
expenditures related to asbestos claims that
are not covered by an injunction described
under clause (i).
(12) Person.--The term ``person''--
(A) means an individual, trust, firm, joint stock
company, partnership, association, insurance company,
reinsurance company, or corporation; and
(B) does not include the United States, any State
or local government, or subdivision thereof, including
school districts and any general or special function
governmental unit established under State law.
(13) State.--The term ``State'' means any State of the
United States and also includes the District of Columbia,
Commonwealth of Puerto Rico, the Northern Mariana Islands, the
Virgin Islands, Guam, American Samoa, and any other territory
or possession of the United States or any political subdivision
of any of the entities under this paragraph.
(14) Substantially continues.--The term ``substantially
continues'' means that the business operations have not been
significantly modified by the change in ownership.
(15) Successor in interest.--The term ``successor in
interest'' means any person that acquires assets, and
substantially continues the business operations, of a
participant. The factors to be considered in determining
whether a person is a successor in interest include--
(A) retention of the same facilities or location;
(B) retention of the same employees;
(C) maintaining the same job under the same working
conditions;
(D) retention of the same supervisory personnel;
(E) continuity of assets;
(F) production of the same product or offer of the
same service;
(G) retention of the same name;
(H) maintenance of the same customer base;
(I) identity of stocks, stockholders, and directors
between the asset seller and the purchaser; or
(J) whether the successor holds itself out as
continuation of previous enterprise, but expressly does
not include whether the person actually knew of the
liability of the participant under this Act.
(16) Veterans' benefits program.--The term ``veterans'
benefits program'' means any program for benefits in connection
with military service administered by the Veterans'
Administration under title 38, United States Code.
(17) Workers' compensation law.--The term ``workers'
compensation law''--
(A) means a law respecting a program administered
by a State or the United States to provide benefits,
funded by a responsible employer or its insurance
carrier, for occupational diseases or injuries or for
disability or death caused by occupational diseases or
injuries;
(B) includes the Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 901 et seq.) and chapter 81
of title 5, United States Code; and
(C) does not include the Act of April 22, 1908 (45
U.S.C. 51 et seq.), commonly known as the Federal
Employers' Liability Act, or damages recovered by any
employee in a liability action against an employer.
TITLE I--ASBESTOS CLAIMS RESOLUTION
Subtitle A--Office of Asbestos Disease Compensation
SEC. 101. ESTABLISHMENT OF OFFICE OF ASBESTOS DISEASE COMPENSATION.
(a) In General.--
(1) Establishment.--There is established within the
Department of Labor the Office of Asbestos Disease Compensation
(hereinafter referred to in this Act as the ``Office''), which
shall be headed by an Administrator.
(2) Purpose.--The purpose of the Office is to provide
timely, fair compensation, in the amounts and under the terms
specified in this Act, on a no-fault basis and in a non-
adversarial manner, to individuals whose health has been
adversely affected by exposure to asbestos.
(3) Expenses.--There shall be available from the Asbestos
Injury Claims Resolution Fund to the Administrator such sums as
are necessary for the administrative expenses of the Office,
including the sums necessary for conducting the studies
provided for in section 121(e).
(b) Appointment of Administrator.--
(1) In general.--The Administrator of the Office of
Asbestos Disease Compensation shall be appointed by the
President, by and with the advice and consent of the Senate.
The Administrator shall serve for a term of 5 years.
(2) Reporting.--The Administrator shall report directly to
the Assistant Secretary of Labor for the Employment Standards
Administration.
(c) Duties of Administrator.--
(1) In general.--The Administrator shall be responsible
for--
(A) processing claims for compensation for
asbestos-related injuries and paying compensation to
eligible claimants under the criteria and procedures
established under title I;
(B) determining, levying, and collecting
assessments on participants under title II;
(C) appointing or contracting for the services of
such personnel, making such expenditures, and taking
any other actions as may be necessary and appropriate
to carry out the responsibilities of the Office,
including entering into cooperative agreements with
other Federal agencies or State agencies and entering
into contracts with non-governmental entities;
(D) conducting such audits and additional oversight
as necessary to assure the integrity of the program;
(E) managing the Asbestos Injury Claims Resolution
Fund established under section 221, including--
(i) administering, in a fiduciary capacity,
the assets of the Fund for the exclusive
purpose of providing benefits to asbestos
claimants and their beneficiaries;
(ii) defraying the reasonable expenses of
administering the Fund;
(iii) investing the assets of the Fund in
accordance with section 222(b);
(iv) retaining advisers, managers, and
custodians who possess the necessary facilities
and expertise to provide for the skilled and
prudent management of the Fund, to assist in
the development, implementation and maintenance
of the Fund's investment policies and
investment activities, and to provide for the
safekeeping and delivery of the Fund's assets;
and
(v) borrowing amounts authorized by section
221(b) on appropriate terms and conditions,
including pledging the assets of or payments to
the Fund as collateral;
(F) promulgating such rules, regulations, and
procedures as may be necessary and appropriate to
implement the provisions of this Act;
(G) making such expenditures as may be necessary
and appropriate in the administration of this Act;
(H) excluding evidence and disqualifying or
debarring any attorney, physician, provider of medical
or diagnostic services, including laboratories and
others who provide evidence in support of a claimant's
application for compensation where the Administrator
determines that materially false, fraudulent or
fictitious statements or practices have been submitted
or engaged in by such individuals or entities; and
(I) having all other powers incidental, necessary,
or appropriate to carrying out the functions of the
Office.
(2) Certain enforcements.--For each infraction relating to
paragraph (1)(H), the Administrator also may impose a civil
penalty not to exceed $10,000 on any person or entity found to
have submitted or engaged in a materially false, fraudulent or
fictitious statement or practice under this Act. The
Administrator shall prescribe appropriate regulations to
implement paragraph (1)(H).
(3) Selection of deputy administrators.--The Administrator
shall select a Deputy Administrator for Claims Administration
to carry out the Administrator's responsibilities under this
title and a Deputy Administrator for Fund Management to carry
out the Administrator's responsibilities under title II of this
Act. The Deputy Administrators shall report directly to the
Administrator and shall be in the Senior Executive Service.
(d) Expeditious Determinations.--The Administrator shall prescribe
rules to expedite claims for asbestos claimants with exigent
circumstances.
(e) Audit and Personnel Review Procedures.--The Administrator shall
establish audit and personnel review procedures for evaluating the
accuracy of eligibility recommendations of agency and contract
personnel.
(f) Application of FOIA.--
(1) In general.--Section 552 of title 5, United States Code
(commonly referred to as the Freedom of Information Act) shall
apply to the Office of Asbestos Disease Compensation and the
Asbestos Insurers Commission.
(2) Confidentiality.--Any person may designate any record
submitted under this section as a confidential commercial or
financial record for purposes of section 552 of title 5, United
States Code. The Administrator and the Chairman of the Asbestos
Insurers Commission shall adopt procedures for designating such
records as confidential. Information on reserves and asbestos-
related liabilities submitted by any participant for the
purpose of the allocation of payments under subtitles A and B
of title II shall be deemed to be confidential financial
records.
SEC. 102. ADVISORY COMMITTEE ON ASBESTOS DISEASE COMPENSATION.
(a) Establishment.--
(1) In general.--Not later than 120 days after the date of
enactment of this Act, the Administrator shall establish an
Advisory Committee on Asbestos Disease Compensation
(hereinafter the ``Advisory Committee'').
(2) Composition and appointment.--The Advisory Committee
shall be composed of 24 members, appointed as follows--
(A) The Majority and Minority Leaders of the
Senate, the Speaker of the House, and the Minority
Leader of the House shall each appoint 4 members. Of
the 4--
(i) 2 shall be selected to represent the
interests of claimants, at least 1 of whom
shall be selected from among individuals
recommended by recognized national labor
federations; and
(ii) 2 shall be selected to represent the
interests of participants, 1 of whom shall be
selected to represent the interests of the
insurer participants and 1 of whom shall be
selected to represent the interests of the
defendant participants.
(B) The Administrator shall appoint 8 members, who
shall be individuals with qualifications and expertise
in occupational or pulmonary medicine, occupational
health, workers compensation programs, financial
administration, investment of funds, program auditing,
or other relevant fields.
(3) Qualifications.--All of the members described in
paragraph (2) shall have expertise or experience relevant to
the asbestos compensation program, including experience or
expertise in diagnosing asbestos-related diseases and
conditions, assessing asbestos exposure and health risks,
filing asbestos claims, or administering a compensation or
insurance program. None of the members described in paragraph
(2)(B) shall be individuals who, for each of the 5 years before
their appointments, earned more than 25 percent of their income
by serving in matters related to asbestos litigation as
consultants or expert witnesses.
(b) Duties.--The Advisory Committee shall advise the Administrator
on--
(1) claims filing and claims processing procedures;
(2) claimant assistance programs;
(3) audit procedures and programs to ensure the quality and
integrity of the compensation program;
(4) the development of a list of industries, occupations
and time periods for which there is a presumption of
substantial occupational exposure to asbestos;
(5) recommended analyses or research that should be
conducted to evaluate past claims and to project future claims
under the program;
(6) the annual report required to be submitted to Congress
under section 405; and
(7) such other matters related to the implementation of
this Act as the Administrator considers appropriate.
(c) Operation of the Committee.--
(1) Each member of the Advisory Committee shall be
appointed for a term of 3 years, except that, of the members
first appointed--
(A) 8 shall be appointed for a term of 1 year;
(B) 8 shall be appointed for a term of 2 years; and
(C) 8 shall be appointed for a term of 3 years,
as determined by the Administrator at the time of appointment.
(2) Any member appointed to fill a vacancy occurring before
the expiration of the term shall be appointed only for the
remainder of such term.
(3) The Administrator shall designate a Chairperson and
Vice Chairperson from among members of the Advisory Committee
appointed under subsection (a)(2)(B).
(4) The Advisory Committee shall meet at the call of the
Chairperson or the majority of its members, and at a minimum
shall meet at least 4 times per year during the first 5 years
of the asbestos compensation program, and at least 2 times per
year thereafter.
(5) The Administrator shall provide to the Committee such
information as is necessary and appropriate for the Committee
to carry out its responsibilities under this section. The
Administrator may, upon request of the Advisory Committee,
secure directly from any Federal department or agency such
information as may be necessary and appropriate to enable the
Advisory Committee to carry out its duties under this section.
Upon request of the Administrator, the head of such department
or agency shall furnish such information to the Advisory
Committee.
(6) The Administrator shall provide the Advisory Committee
with such administrative support as is reasonably necessary to
enable it to perform its functions.
(d) Expenses.--Members of the Advisory Committee, other than full-
time employees of the United States, while attending meetings of the
Advisory Committee or while otherwise serving at the request of the
Administrator, and while serving away from their homes or regular
places of business, shall be allowed travel and meal expenses,
including per diem in lieu of subsistence, as authorized by section
5703 of title 5, United States Code, for individuals in the Government
serving without pay.
SEC. 103. MEDICAL ADVISORY COMMITTEE.
(a) In General.--The Administrator may establish a Medical Advisory
Committee to provide expert advice regarding medical issues arising
under the statute.
(b) Qualifications.--None of the members of the Medical Advisory
Committee shall be individuals who, for each of the 5 years before
their appointments, earned more than 25 percent of their income by
serving in matters related to asbestos litigation as consultants or
expert witnesses.
SEC. 104. CLAIMANT ASSISTANCE.
(a) Establishment.--Not later than 180 days after the enactment of
this Act, the Administrator shall establish a comprehensive asbestos
claimant assistance program to--
(1) publicize and provide information to potential
claimants about the availability of benefits for eligible
claimants under this Act, and the procedures for filing claims
and for obtaining assistance in filing claims;
(2) provide assistance to potential claimants in preparing
and submitting claims, including assistance in obtaining the
documentation necessary to support a claim;
(3) respond to inquiries from claimants and potential
claimants; and
(4) provide training with respect to the applicable
procedures for the preparation and filing of claims to persons
who provide assistance or representation to claimants.
(b) Resource Centers.--The claimant assistance program shall
provide for the establishment of resource centers in areas where there
are determined to be large concentrations of potential claimants. These
centers shall be located, to the extent feasible, in facilities of the
Department of Labor or other Federal agencies.
(c) Contracts.--The claimant assistance program may be carried out
in part through contracts with labor organizations, community-based
organizations, and other entities which represent or provide services
to potential claimants, except that such organizations may not have a
financial interest in the outcome of claims filed with the Office.
(d) Legal Assistance.--
(1) In general.--As part of the program established under
subsection (a), the Administrator shall establish a legal
assistance program to provide assistance to asbestos claimants
concerning legal representation issues.
(2) List of qualified attorneys.--As part of the program,
the Administrator shall maintain a roster of qualified
attorneys who have agreed to provide pro bono services to
asbestos claimants under rules established by the
Administrator. The claimants shall not be required to use the
attorneys listed on such roster.
(3) Notice.--
(A) Notice by administrator.--The Administrator
shall provide asbestos claimants with notice of, and
information relating to--
(i) pro bono services for legal assistance
available to those claimants; and
(ii) any limitations on attorneys fees for
claims filed under this title.
(B) Notice by attorneys.--Before a person becomes a
client of an attorney with respect to an asbestos claim
that attorney shall provide notice to that person of
pro bono services for legal assistance available for
that claim.
(e) Attorney's Fees.--
(1) In general.--Notwithstanding any contract, the
representative of an individual may not receive, for services
rendered in connection with the claim of an individual under
this Act, more than that percentage specified in paragraph (2)
of an award made under this Act on such claim.
(2) Applicable percentage limitations.--
(A) In general.--The percentage limitation under
paragraph (1) shall be--
(i) 2 percent for the filing of an initial
claim; and
(ii) 10 percent with respect to any claim
under appellate review.
(B) Exception.--The Administrator may by rule adopt
a lower percentage limitation for particular classes of
cases if the Administrator finds that--
(i) the percentage limitation otherwise
applicable under this paragraph would result in
unreasonably high compensation to claimants'
representatives in such cases; and
(ii) such lower percentage limitation would
be reasonable and would not unduly limit the
availability of representatives to claimants.
(3) Penalty.--Any representative of an asbestos claimant
who violates this subsection shall be fined not more than
$5,000.
SEC. 105. PHYSICIANS PANELS.
(a) Appointment.--The Administrator shall, in accordance with
section 3109 of title 5, United States Code, appoint physicians with
experience and competency in diagnosing asbestos-related diseases to be
available to serve on Physicians Panels as necessary to carry out this
Act.
(b) Formation of Panels.--
(1) In general.--The Administrator shall periodically
determine--
(A) the number of Physicians Panels necessary for
the efficient conduct of the medical review process
under section 121;
(B) the number of Physicians Panels necessary for
the efficient conduct of the exceptional medical claims
process under section 121; and
(C) the particular expertise necessary for each
panel.
(2) Expertise.--Each panel shall be composed of members
having the particular expertise determined necessary by the
Administrator, randomly selected from among the physicians
appointed under subsection (a) having such expertise.
(3) Panel members.--Each panel shall consist of 3
physicians, 2 of whom shall be designated to participate in
each case submitted to the panel, and the third of whom shall
be consulted in the event of disagreement.
(c) Qualifications.--To be eligible to serve on a Physicians Panel
under subsection (a), a person shall be--
(1) a physician licensed in any State;
(2) board-certified in pulmonary medicine, occupational
medicine, internal medicine, oncology, or pathology; and
(3) an individual who, for each of the 5 years before and
during his or her appointment to a Physicians Panel, has earned
no more than 25 percent of his or her income as an employee of
a participating defendant or insurer or a law firm representing
any party in asbestos litigation or as a consultant or expert
witness in matters related to asbestos litigation.
(d) Duties.--Members of the Physicians Panel shall--
(1) make such medical determinations as are required to be
made by Physicians Panels under section 121; and
(2) perform such other functions as required under this
Act.
(e) Compensation.--Notwithstanding any limitation otherwise
established under section 3109 of title 5, United States Code, the
Administrator shall be authorized to pay members of the Physician Panel
such compensation as is reasonably necessary to obtain their services.
(f) Federal Advisory Committee Act.--A panel established under this
section shall not be subject to the Federal Advisory Committee Act (5
U.S.C. App. 2).
SEC. 106. PROGRAM STARTUP.
(a) Interim Regulations.--Not later than 90 days after the
enactment of this Act, the Administrator shall promulgate interim
regulations and procedures for the processing of claims under title I
and the operation of the Fund under title II, including procedures for
the expediting of exigent claims.
(b) Interim Personnel.--The Secretary of Labor and the Assistant
Secretary of Labor for the Employment Standards Administration may make
available to the Administrator on a temporary basis such personnel and
other resources as may be necessary to facilitate the expeditious
startup of the program. The Administrator may in addition contract with
individuals or entities having relevant experience to assist in the
expeditious startup of the program. Such relevant experience shall
include, but not be limited to, experience with the review of workers'
compensation, occupational disease, or similar claims and with
financial matters relevant to the operation of the program.
(c) Exigent Health Claims.--
(1) In general.--The Administrator shall develop procedures
to provide for an expedited process to categorize, evaluate,
and pay exigent health claims. Such procedures shall include,
pending promulgation of final regulations, adoption of interim
regulations as needed for processing of exigent claims.
(2) Eligible exigent health claims.--A claim shall qualify
for treatment as an exigent health claim if the claimant is
living and the claimant provides--
(A) documentation that a physician has diagnosed
the claimant as having mesothelioma; or
(B) a declaration or affidavit, from a physician
who has examined the claimant within 120 days before
the date of such declaration or affidavit, that the
physician has diagnosed the claimant as being
terminally ill from an asbestos-related illness and
having a life expectancy of less than 1 year.
(3) Additional exigent health claims.--The Administrator
may, in final regulations promulgated under section 101(c),
designate additional categories of claims that qualify as
exigent health claims under this subsection.
(d) Extreme Financial Hardship Claims.--The Administrator may, in
final regulations promulgated under section 101(c), designate
categories of claims to be handled on an expedited basis as a result of
extreme financial hardship.
(e) Interim Administrator.--Until an Administrator is appointed and
confirmed under section 101(b), the responsibilities of the
Administrator under this Act shall be performed by the Assistant
Secretary of Labor for the Employment Standards Administration, who
shall have all the authority conferred by this Act on the Administrator
and who shall be deemed to be the Administrator for purposes of this
Act. Before final regulations being promulgated relating to claims
processing, the Interim Administrator may prioritize claims processing,
without regard to the time requirements prescribed in subtitle B of
this title, based on severity of illness and likelihood that the
illness in question was caused by exposure to asbestos.
SEC. 107. AUTHORITY OF THE ADMINISTRATOR.
The Administrator, on any matter within the jurisdiction of the
Administrator under this Act, may--
(1) issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles;
(2) administer oaths;
(3) examine witnesses; and
(4) require the production of books, papers, documents, and
other evidence.
Subtitle B--Asbestos Disease Compensation Procedures
SEC. 111. ESSENTIAL ELEMENTS OF ELIGIBLE CLAIM.
To be eligible for an award under this Act for an asbestos-related
disease or injury, an individual shall--
(1) file a claim in a timely manner in accordance with
section 113; and
(2) prove, by a preponderance of the evidence, that the
claimant suffers from an eligible disease or condition, as
demonstrated by evidence that meets the requirements
established under subtitle C.
SEC. 112. GENERAL RULE CONCERNING NO-FAULT COMPENSATION.
An asbestos claimant shall not be required to demonstrate that the
asbestos-related injury for which the claim is being made resulted from
the negligence or other fault of any other person.
SEC. 113. FILING OF CLAIMS.
(a) Who May Submit.--
(1) In general.--Any individual who has suffered from a
disease or condition that is believed to meet the requirements
established under subtitle C (or the personal representative of
the individual, if the individual is deceased) may file a claim
with the Office for an award with respect to such injury.
(2) Definition.--In this Act, the term ``personal
representative'' shall have the same meaning as that term is
defined in section 104.4 of title 28 of the Code of Federal
Regulations, as in effect December 31, 2003.
(3) Limitation.--A claim may not be filed by any person
seeking contribution or indemnity.
(b) Statute of Limitations.--
(1) In general.--Except as provided in paragraphs (2) and
(3), if an individual fails to file a claim with the Office
under this section within 4 years after the date on which the
individual first--
(A) received a medical diagnosis of an eligible
disease or condition as provided for under this
subtitle and subtitle C; or
(B) discovered facts that would have led a
reasonable person to obtain a medical diagnosis with
respect to an eligible disease or condition,
any claim relating to that injury, and any other asbestos claim
related to that injury, shall be extinguished, and any recovery
thereon shall be prohibited.
(2) Effect on pending claims.--If an asbestos claimant has
any timely filed asbestos claim that is pending in a Federal or
State court or with a trust established under title 11, United
States Code, on the date of enactment of this Act, such
claimant shall file a claim under this section within 4 years
after such date of enactment or be barred from receiving any
award under this title. For purposes of this paragraph, a claim
shall not be treated as pending with a trust established under
title 11, United States Code, solely because a claimant whose
claim was previously compensated by the trust has or alleges--
(A) a non-contingent right to the payment of future
installments of a fixed award; or
(B) a contingent right to recover some additional
amount from the trust on the occurrence of a future
event, such as the reevaluation of the trust's funding
adequacy or projected claims experience.
(3) Effect of multiple injuries.--
(A) In general.--An asbestos claimant who receives
an award under this title for an eligible disease or
condition, and who subsequently develops another such
injury, shall be eligible for additional awards under
this title (subject to appropriate setoffs for such
prior recovery of any award under this title and from
any other collateral source) and the statute of
limitations under paragraph (1) shall not begin to run
with respect to such subsequent injury until such
claimant obtains a medical diagnosis of such other
injury or discovers facts that would have led a
reasonable person to obtain such a diagnosis.
(B) Setoffs.--Except as provided in subparagraph
(C), any amounts paid or to be paid for a prior award
under this Act shall be deducted as a setoff against
amounts payable for the second injury claim.
(C) Exception.--Any amounts paid or to be paid for
a prior claim for a non-malignant disease (Levels I
through V) filed against the Fund shall not be deducted
as a setoff against amounts payable for the second
injury claim for a malignant disease (Levels VI through
X), unless the malignancy was diagnosed, or the
asbestos claimant had discovered facts that would have
led a reasonable person to obtain such a diagnosis,
before the date on which the non-malignancy claim was
compensated.
(c) Required Information.--A claim filed under subsection (a) shall
be in such form, and contain such information in such detail, as the
Administrator shall by regulation prescribe. At a minimum, a claim
shall include--
(1) the name, social security number, gender, date of
birth, and, if applicable, date of death of the claimant;
(2) information relating to the identity of dependents and
beneficiaries of the claimant;
(3) a complete employment history of the claimant,
accompanied by social security records or a signed release
permitting access to such records;
(4) a description of the asbestos exposure of the claimant,
including, to the extent known, information on the site, or
location of exposure, and duration and intensity of exposure;
(5) a description of the tobacco product use history of the
claimant, including frequency and duration;
(6) an identification and description of the asbestos-
related diseases or conditions of the claimant, accompanied by
a written report by the claimant's physician with medical
diagnoses and x-ray films, and other test results necessary to
establish eligibility for an award under this Act;
(7) a description of any prior or pending civil action or
other claim brought by the claimant for asbestos-related injury
or any other pulmonary, parenchymal or pleural injury,
including an identification of any recovery of compensation or
damages through settlement, judgment, or otherwise; and
(8) for any claimant who asserts that he or she is a
nonsmoker or an ex-smoker, as defined in section 131, for
purposes of an award under Malignant Level VI, Malignant Level
VII, Malignant Level VIII, or Malignant Level IX, evidence to
support the assertion of nonsmoking or ex-smoking, including
relevant medical records.
(d) Date of Filing.--A claim shall be considered to be filed on the
date that the claimant mails the claim to the Office, as determined by
postmark, or on the date that the claim is received by the Office,
whichever is the earliest determinable date.
(e) Incomplete Claims.--If a claim filed under subsection (a) is
incomplete, the Administrator shall notify the claimant of the
information necessary to complete the claim and inform the claimant of
such services as may be available through the Claimant Assistance
Program established under section 104 to assist the claimant in
completing the claim. Any time periods for the processing of the claim
shall be suspended until such time as the claimant submits the
information necessary to complete the claim. If such information is not
received within 1 year after the date of such notification, the claim
shall be dismissed.
SEC. 114. ELIGIBILITY DETERMINATIONS AND CLAIM AWARDS.
(a) In General.--
(1) Review of claims.--The Administrator shall, in
accordance with this section, determine whether each claim
filed under this Act satisfies the requirements for eligibility
for an award under this Act and, if so, the value of the award.
In making such determinations, the Administrator shall consider
the claim presented by the claimant, the factual and medical
evidence submitted by the claimant in support of the claim, the
medical determinations of any Physicians Panel to which a claim
is referred under section 121, and the results of such
investigation as the Administrator may deem necessary to
determine whether the claim satisfies the criteria for
eligibility established by this Act.
(2) Additional evidence.--The Administrator may request the
submission of medical evidence in addition to the minimum
requirements of section 113(c) if necessary or appropriate to
make a determination of eligibility for an award, in which case
the cost of obtaining such additional information or testing
shall be borne by the Office.
(b) Proposed Decisions.--Not later than 90 days after the filing of
a claim, the Administrator shall provide to the claimant (and the
claimant's representative) a proposed decision accepting or rejecting
the claim in whole or in part and specifying the amount of the proposed
award, if any. The proposed decision shall be in writing, shall contain
findings of fact and conclusions of law, and shall contain an
explanation of the procedure for obtaining review of the proposed
decision.
(c) Review of Proposed Decisions.--
(1) Right to hearing.--
(A) In general.--Any claimant not satisfied with a
proposed decision of the Administrator under subsection
(b) shall be entitled, on written request made within
90 days after the date of the issuance of the decision,
to a hearing on the claim of that claimant before a
representative of the Administrator. At the hearing,
the claimant shall be entitled to present oral evidence
and written testimony in further support of that claim.
(B) Conduct of hearing.--When practicable, the
hearing will be set at a time and place convenient for
the claimant. In conducting the hearing, the
representative of the Administrator shall not be bound
by common law or statutory rules of evidence, by
technical or formal rules of procedure, or by section
554 of title 5, United States Code, except as provided
by this Act, but shall conduct the hearing in such
manner as to best ascertain the rights of the claimant.
For this purpose, the representative shall receive such
relevant evidence as the claimant adduces and such
other evidence as the representative determines
necessary or useful in evaluating the claim.
(C) Request for subpoenas.--
(i) In general.--A claimant may request a
subpoena but the decision to grant or deny such
a request is within the discretion of the
representative of the Administrator. The
representative may issue subpoenas for the
attendance and testimony of witnesses, and for
the production of books, records,
correspondence, papers or other relevant
documents. Subpoenas are issued for documents
only if they are relevant and cannot be
obtained by other means, and for witnesses only
where oral testimony is the best way to
ascertain the facts.
(ii) Request.--A claimant may request a
subpoena only as part of the hearing process.
To request a subpoena, the requester shall--
(I) submit the request in writing
and send it to the representative as
early as possible, but no later than 30
days after the date of the original
hearing request; and
(II) explain why the testimony or
evidence is directly relevant to the
issues at hand, and a subpoena is the
best method or opportunity to obtain
such evidence because there are no
other means by which the documents or
testimony could have been obtained.
(iii) Fees and mileage.--Any person
required by such subpoena to attend as a
witness shall be allowed and paid the same fees
and mileage as are paid witnesses in the
district courts of the United States.
(2) Review of written record.--In lieu of a hearing under
paragraph (1), any claimant not satisfied with a proposed
decision of the Administrator shall have the option, on written
request made within 90 days after the date of the issuance of
the decision, of obtaining a review of the written record by a
representative of the Administrator. If such review is
requested, the claimant shall be afforded an opportunity to
submit any written evidence or argument which he or she
believes relevant.
(d) Final Decisions.--
(1) In general.--If the period of time for requesting
review of the proposed decision expires and no request has been
filed, or if the claimant waives any objections to the proposed
decision, the Administrator shall issue a final decision. If
such decision materially differs from the proposed decision,
the claimant shall be entitled to review of the decision under
subsection (c).
(2) Time and content.--If the claimant requests review of
all or part of the proposed decision the Administrator shall
issue a final decision on the claim not later than 180 days
after the request for review is received, if the claimant
requests a hearing, or not later than 90 days after the request
for review is received, if the claimant requests review of the
written record. Such decision shall be in writing and contain
findings of fact and conclusions of law.
(e) Representation.--A claimant may authorize an attorney or other
individual to represent him or her in any proceeding under this Act.
SEC. 115. MEDICAL EVIDENCE AUDITING PROCEDURES.
(a) In General.--
(1) Development.--The Administrator shall develop methods
for auditing and evaluating the medical evidence submitted as
part of a claim. The Administrator may develop additional
methods for auditing and evaluating other types of evidence or
information received by the Administrator.
(2) Refusal to consider certain evidence.--
(A) In general.--If the Administrator determines
that an audit conducted in accordance with the methods
developed under paragraph (1) demonstrates that the
medical evidence submitted by a specific physician or
medical facility is not consistent with prevailing
medical practices or the applicable requirements of
this Act, any medical evidence from such physician or
facility shall be unacceptable for purposes of
establishing eligibility for an award under this Act.
(B) Notification.--Upon a determination by the
Administrator under subparagraph (A), the Administrator
shall notify the physician or medical facility involved
of the results of the audit. Such physician or facility
shall have a right to appeal such determination under
procedures issued by the Administrator.
(b) Review of Certified B-readers.--
(1) In general.--At a minimum, the Administrator shall
prescribe procedures to randomly assign claims for evaluation
by an independent certified B-reader of x-rays submitted in
support of a claim, the cost of which shall be borne by the
Office.
(2) Disagreement.--If an independent certified B-reader
assigned under paragraph (1) disagrees with the quality grading
or ILO level assigned to an x-ray submitted in support of a
claim, the Administrator shall require a review of such x-rays
by a second independent certified B-reader.
(3) Effect on claim.--If neither certified B-reader under
paragraph (2) agrees with the quality grading and the ILO grade
level assigned to an x-ray as part of the claim, the
Administrator shall take into account the findings of the 2
independent B readers in making the determination on such
claim.
(4) Certified b-readers.--The Administrator shall maintain
a list of a minimum of 50 certified B-readers eligible to
participate in the independent reviews, chosen from all
certified B-readers. When an x-ray is sent for independent
review, the Administrator shall choose the certified B-reader
at random from that list.
(c) Smoking Assessment.--
(1) In general.--
(A) Records and documents.--To aid in the
assessment of the accuracy of claimant representations
as to their smoking status for purposes of determining
eligibility and amount of award under Malignant Level
VI, Malignant Level VII, Malignant Level VIII,
Malignant Level IX, and exceptional medical claims, the
Administrator shall have the authority to obtain
relevant records and documents, including--
(i) records of past medical treatment and
evaluation;
(ii) affidavits of appropriate individuals;
(iii) applications for insurance and
supporting materials; and
(iv) employer records of medical
examinations.
(B) Consent.--The claimant shall provide consent
for the Administrator to obtain such records and
documents where required.
(2) Review.--The frequency of review of records and
documents submitted under paragraph (1)(A) shall be at the
discretion of the Administrator, but shall address at least 5
percent of the claimants asserting status as nonsmokers or ex-
smokers.
(3) Consent.--The Administrator may require the performance
of blood tests or any other appropriate medical test where
claimants assert they are nonsmokers or ex-smokers for purposes
of an award under Malignant Level VI, Malignant Level VII,
Malignant Level VIII, Malignant Level IX, or as an exceptional
medical claim, the cost of which shall be borne by the Office.
(4) Penalty for false statements.--Any false information
submitted under this subsection shall be subject to criminal
prosecution or civil penalties as provided under section 1348
of title 18, United States Code (as added by this Act) and
section 101(c)(2).
Subtitle C--Medical Criteria
SEC. 121. MEDICAL CRITERIA REQUIREMENTS.
(a) Definitions.--In this section, the following definitions shall
apply:
(1) Asbestosis determined by pathology.--The term
``asbestosis determined by pathology'' means indications of
asbestosis based on the pathological grading system for
asbestosis described in the Special Issues of the Archives of
Pathology and Laboratory Medicine, ``Asbestos-associated
Diseases'', Vol. 106, No. 11, App. 3 (October 8, 1982).
(2) Bilateral asbestos-related nonmalignant disease.--The
term ``bilateral asbestos-related nonmalignant disease'' means
a diagnosis of bilateral asbestos-related nonmalignant disease
based on--
(A) an x-ray reading of 1/0 or higher based on the
ILO grade scale;
(B) bilateral pleural plaques;
(C) bilateral pleural thickening; or
(D) bilateral pleural calcification.
(3) Bilateral pleural disease of b2.--The term ``bilateral
pleural disease of B2'' means a chest wall pleural thickening
or plaque with a maximum width of at least 5 millimeters and a
total length of at least \1/4\ of the projection of the lateral
chest wall.
(4) Certified b-reader.--The term ``certified B-reader''
means an individual who is certified by the National Institute
of Occupational Safety and Health and whose certification by
the National Institute of Occupational Safety and Health is up
to date.
(5) Diffuse pleural thickening.--The term ``diffuse pleural
thickening'' means blunting of either costophrenic angle and
bilateral pleural plaque or bilateral pleural thickening.
(6) DLCO.--The term ``DLCO'' means the single-breath
diffusing capacity of the lung (carbon monoxide) technique used
to measure the volume of carbon monoxide transferred from the
alveoli to blood in the pulmonary capillaries for each unit of
driving pressure of the carbon monoxide.
(7) FEV1.--The term ``FEV1'' means forced expiratory volume
(1 second), which is the maximal volume of air expelled in 1
second during performance of the spirometric test for forced
vital capacity.
(8) FVC.--The term ``FVC'' means forced vital capacity,
which is the maximal volume of air expired with a maximally
forced effort from a position of maximal inspiration.
(9) ILO grade.--The term ``ILO grade'' means the
radiological ratings for the presence of lung changes as
determined from a chest x-ray, all as established from time to
time by the International Labor Organization.
(10) Lower limits of normal.--The term ``lower limits of
normal'' means the fifth percentile of healthy populations as
defined in the American Thoracic Society statement on lung
function testing (Amer. Rev. Resp. Disease 1991, 144:1202-1218)
and any future revision of the same statement.
(11) Nonsmoker.--The term ``nonsmoker'' means that the
claimant never smoked.
(12) PO2.--The term ``PO2'' means the partial pressure
(tension) of oxygen, which measures the amount of dissolved
oxygen in the blood.
(13) Pulmonary function testing.--The term ``pulmonary
function testing'' means spirometry testing that is in material
compliance with the quality criteria established by the
American Thoracic Society and is performed on equipment which
is in material compliance with the standards of the American
Thoracic Society for technical quality and calibration.
(14) Substantial occupational exposure to asbestos.--
(A) In general.--The term ``substantial
occupational exposure'' means employment in an industry
and an occupation where for a substantial portion of a
normal work year for that occupation, the claimant--
(i) handled raw asbestos fibers;
(ii) fabricated asbestos-containing
products so that the claimant in the
fabrication process was exposed to raw asbestos
fibers;
(iii) altered, repaired, or otherwise
worked with an asbestos-containing product such
that the claimant was exposed on a regular
basis to asbestos fibers; or
(iv) worked in close proximity to other
workers engaged in the activities described
under clause (i), (ii), or (iii) such that the
claimant was exposed on a regular basis to
asbestos fibers.
(B) Regular basis.--In this paragraph, the term
``on a regular basis'' means on a frequent or recurring
basis.
(15) TLC.--The term ``TLC'' means total lung capacity,
which is the total volume of air in the lung after maximal
inspiration.
(16) Weighted occupational exposure.--
(A) In general.--The term ``weighted occupational
exposure'' means exposure for a period of years
calculated according to the exposure weighting formula
under subparagraphs (B) through (E).
(B) Moderate exposure.--Subject to subparagraph
(E), each year that a claimant's primary occupation,
during a substantial portion of a normal work year for
that occupation, involved working in areas immediate to
where asbestos-containing products were being
installed, repaired, or removed under circumstances
that involved regular airborne emissions of asbestos
fibers, shall count as 1 year of substantial
occupational exposure.
(C) Heavy exposure.--Subject to subparagraph (E),
each year that a claimant's primary occupation, during
a substantial portion of a normal work year for that
occupation, involved the direct installation, repair,
or removal of asbestos-containing products such that
the person was exposed on a regular basis to asbestos
fibers, shall count as 2 years of substantial
occupational exposure.
(D) Very heavy exposure.--Subject to subparagraph
(E), each year that a claimant's primary occupation,
during a substantial portion of a normal work year for
that occupation, was in primary asbestos manufacturing,
a World War II shipyard, or the asbestos insulation
trades, such that the person was exposed on a regular
basis to asbestos fibers, shall count as 4 years of
substantial occupational exposure.
(E) Dates of exposure.--Each year of exposure
calculated under subparagraphs (B), (C), and (D) that
occurred before 1976 shall be counted at its full
value. Each year from 1976 to 1986 shall be counted as
\1/2\ its value. Each year after 1986 shall be counted
as \1/10\ its value.
(F) Other claims.--Individuals who do not meet the
provisions of subparagraphs (A) through (E) and believe
their post-1976 or post-1986 exposures exceeded the
Occupational Safety and Health Administration standard
may submit evidence, documentation, work history or
other information to substantiate noncompliance with
the Occupational Safety and Health Administration
standard (such as lack of engineering or work practice
controls, or protective equipment) such that exposures
would be equivalent to exposures before 1976 or 1986 or
to documented exposures in similar jobs or occupations
where control measures had not been implemented. Claims
under this subparagraph shall be evaluated on an
individual basis by a Physicians Panel.
(b) Medical Evidence.--
(1) Latency.--Unless otherwise specified, all diagnoses of
an asbestos-related disease for a level under this section
shall be accompanied by--
(A) a statement by the physician providing the
diagnosis that at least 10 years have elapsed between
the date of first exposure to asbestos or asbestos-
containing products and the diagnosis; or
(B) a history of the claimant's exposure that is
sufficient to establish a 10-year latency period
between the date of first exposure to asbestos or
asbestos-containing products and the diagnosis.
(2) Diagnostic guidelines.--All diagnoses of asbestos-
related diseases shall be based upon--
(A) for disease Levels I through V, in the case of
a claimant who was living at the time the claim was
filed--
(i) a physical examination of the claimant
by the physician providing the diagnosis;
(ii) an evaluation of smoking history and
exposure history before making a diagnosis;
(iii) an x-ray reading by a certified B-
reader; and
(iv) pulmonary function testing in the case
of disease Levels III, IV, and V;
(B) for disease Levels I through V, in the case of
a claimant who was deceased at the time the claim was
filed, a report from a physician based upon a review of
the claimant's medical records which shall include--
(i) pathological evidence of the non-
malignant asbestos-related disease; or
(ii) an x-ray reading by a certified B-
reader;
(C) for disease Levels VI through X, in the case of
a claimant who was living at the time the claim was
filed--
(i) a physical examination by the
claimant's physician providing the diagnosis;
or
(ii) a diagnosis of such a malignant
asbestos-related disease, as described in this
section, by a board-certified pathologist; and
(D) for disease Levels VI through X, in the case of
a claimant who was deceased at the time the claim was
filed--
(i) a diagnosis of such a malignant
asbestos-related disease, as described in this
section, by a board-certified pathologist; and
(ii) a report from a physician based upon a
review of the claimant's medical records.
(3) Credibility of medical evidence.--To ensure the medical
evidence provided in support of a claim is credible and
consistent with recognized medical standards, a claimant under
this title may be required to submit--
(A) x-rays or computerized tomography;
(B) detailed results of pulmonary function tests;
(C) laboratory tests;
(D) tissue samples;
(E) results of medical examinations;
(F) reviews of other medical evidence; and
(G) medical evidence that complies with recognized
medical standards regarding equipment, testing methods,
and procedure to ensure the reliability of such
evidence as may be submitted.
(c) Exposure Evidence.--
(1) In general.--To qualify for any disease level, the
claimant shall demonstrate--
(A) a minimum exposure to asbestos or asbestos-
containing products;
(B) the exposure occurred in the United States, its
territories or possessions, or while a United States
citizen while an employee of an entity organized under
any Federal or State law regardless of location, or
while a United States citizen while serving on any
United States flagged or owned ship, provided the
exposure results from such employment or service; and
(C) any additional asbestos exposure requirement
under this section.
(2) General exposure requirements.--In order to establish
exposure to asbestos, a claimant shall present meaningful and
credible evidence--
(A) by an affidavit of the claimant;
(B) by an affidavit of a coworker or family member,
if the claimant is deceased and such evidence is found
in proceedings under this title to be reasonably
reliable;
(C) by invoices, construction, or similar records;
or
(D) any other credible evidence.
(3) Take-home exposure.--
(A) In general.--A claimant may alternatively
satisfy the medical criteria requirements of this
section where a claim is filed by a person who alleges
their exposure to asbestos was the result of living
with a person who, if the claim had been filed by that
person, would have met the exposure criteria for the
given disease level, and the claimant lived with such
person for the time period necessary to satisfy the
exposure requirement, for the claimed disease level.
(B) Review.--Except for claims for disease Level X
(mesothelioma), all claims alleging take-home exposure
shall be submitted as an exceptional medical claim
under section 121(f) for review by a Physicians Panel.
(4) Waiver for workers and residents of libby, montana.--
Because of the unique nature of the asbestos exposure related
to the vermiculite mining and milling operations in Libby,
Montana, the Administrator shall waive the exposure
requirements under this subtitle for individuals who worked at
the vermiculite mining and milling facility in Libby, Montana,
or lived or worked within a 20-mile radius of Libby, Montana,
for at least 12 consecutive months before December 31, 2003.
Claimants under this section shall provide such supporting
documentation as the Administrator shall require.
(5) Exposure presumptions.--The Administrator shall
prescribe rules identifying specific industries, occupations
within those industries, and time periods for which substantial
occupational exposure (as defined under section 121(a)) shall
be a rebuttable presumption for asbestos claimants who provide
meaningful and credible evidence that the claimant worked in
that industry and occupation during such time periods. The
Administrator may provide evidence to rebut this presumption.
(d) Asbestos Disease Levels.--
(1) Nonmalignant level i.--To receive Level I compensation,
a claimant shall provide--
(A) a diagnosis of bilateral asbestos-related
nonmalignant disease; and
(B) evidence of 5 years cumulative occupational
exposure to asbestos.
(2) Nonmalignant level ii.--To receive Level II
compensation, a claimant shall provide--
(A) a diagnosis of bilateral asbestos-related
nonmalignant disease with ILO grade of 1/1 or greater,
and showing small irregular opacities of shape or size
either ss, st, or tt and present in both lower lung
zones, or asbestosis determined by pathology, or
blunting of either costophrenic angle and bilateral
pleural plaque or bilateral pleural thickening of at
least grade B2 or greater, or bilateral pleural disease
of grade B2 or greater;
(B) evidence of TLC less than 80 percent or FVC
less than the lower limits of normal, and FEV1/FVC
ratio less than 65 percent;
(C) evidence of 5 or more weighted years of
substantial occupational exposure to asbestos; and
(D) supporting medical documentation establishing
asbestos exposure as a contributing factor in causing
the pulmonary condition in question.
(3) Nonmalignant level iii.--To receive Level III
compensation a claimant shall provide--
(A) a diagnosis of bilateral asbestos-related
nonmalignant disease with ILO grade of 1/0 or greater
and showing small irregular opacities of shape or size
either ss, st, or tt and present in both lower lung
zones, or asbestosis determined by pathology, or
diffuse pleural thickening, or bilateral pleural
disease of B2 or greater;
(B) evidence of TLC less than 80 percent; FVC less
than the lower limits of normal and FEV1/FVC ratio
greater than or equal to 65 percent; or evidence of a
decline in FVC of 20 percent or greater, after allowing
for the expected decrease due to aging, and an FEV1/FVC
ratio greater than or equal to 65 percent documented
with a second spirometry;
(C) evidence of 5 or more weighted years of
substantial occupational exposure to asbestos; and
(D) supporting medical documentation--
(i) establishing asbestos exposure as a
contributing factor in causing the pulmonary
condition in question; and
(ii) excluding other more likely causes of
that pulmonary condition.
(4) Nonmalignant level iv.--To receive Level IV
compensation a claimant shall provide--
(A) diagnosis of bilateral asbestos-related
nonmalignant disease with ILO grade of 1/1 or greater
and showing small irregular opacities of shape or size
either ss, st, or tt and present in both lower lung
zones, or asbestosis determined by pathology, or
diffuse pleural thickening, or bilateral pleural
disease of B2 or greater;
(B) evidence of TLC less than 60 percent or FVC
less than 60 percent, and FEV1/FVC ratio greater than
or equal to 65 percent;
(C) evidence of 5 or more weighted years of
substantial occupational exposure to asbestos before
diagnosis; and
(D) supporting medical documentation--
(i) establishing asbestos exposure as a
contributing factor in causing the pulmonary
condition in question; and
(ii) excluding other more likely causes of
that pulmonary condition.
(5) Nonmalignant level v.--To receive Level V compensation
a claimant shall provide--
(A) diagnosis of bilateral asbestos-related
nonmalignant disease with ILO grade of 1/1 or greater
and showing small irregular opacities of shape or size
either ss, st, or tt and present in both lower lung
zones, or asbestosis determined by pathology, or
diffuse pleural thickening, or bilateral pleural
disease of B2 or greater;
(B)(i) evidence of TLC less than 50 percent or FVC
less than 50 percent, and FEV1/FVC ratio greater than
or equal to 65 percent;
(ii) DLCO less than 40 percent of predicted, plus a
FEV1/FVC ratio not less than 65 percent; or
(iii) PO2 less than 55 mm/Hg, plus a FEV1/FVC ratio
not less than 65 percent;
(C) evidence of 5 or more weighted years of
substantial occupational exposure to asbestos; and
(D) supporting medical documentation--
(i) establishing asbestos exposure as a
contributing factor in causing the pulmonary
condition in question; and
(ii) excluding other more likely causes of
that pulmonary condition.
(6) Malignant level vi.--
(A) In general.--To receive Level VI compensation a
claimant shall provide--
(i) a diagnosis of a primary colorectal,
laryngeal, esophageal, pharyngeal, or stomach
cancer on the basis of findings by a board
certified pathologist;
(ii) evidence of a bilateral asbestos-
related nonmalignant disease;
(iii) evidence of 15 or more weighted years
of substantial occupational exposure to
asbestos; and
(iv) supporting medical documentation
establishing asbestos exposure as a
contributing factor in causing the cancer in
question.
(B) Referral to physicians panel.--All claims filed
with respect to Level VI under this paragraph shall be
referred to a Physicians Panel for a determination that
it is more probable than not that asbestos exposure was
a substantial contributing factor in causing the other
cancer in question. If the claimant meets the
requirements of subparagraph (A), there shall be a
presumption of eligibility for the scheduled value of
compensation unless there is evidence determined by the
Physicians Panel that rebuts that presumption.
(C) Request for referral to physicians panel.--A
claimant filing a claim with respect to Level VI under
this paragraph may request that the claim be referred
to a Physicians Panel for a determination on amount of
award. In making its determination under this
subparagraph, the Physicians Panel shall consider the
intensity and duration of exposure, smoking history,
and the quality of evidence relating to exposure and
smoking. Claimants shall bear the burden of producing
meaningful and credible evidence of their smoking
history as part of their claim submission.
(7) Malignant level vii.--
(A) In general.--To receive Level VII compensation
a claimant shall provide--
(i) a diagnosis of a primary lung cancer
disease on the basis of findings by a board
certified pathologist;
(ii) evidence of 15 or more weighted years
of substantial occupational exposure to
asbestos; and
(iii) supporting medical documentation
establishing asbestos exposure as a
contributing factor in causing the lung cancer
in question.
(B) Physicians panel.--All claims filed relating to
Level VII under this paragraph shall be referred to a
Physicians Panel for a determination on the amount of
award. In making its determination under this
subparagraph, the Physicians Panel shall consider the
intensity and duration of exposure, smoking history,
and the quality of evidence relating to exposure and
smoking. Claimants shall bear the burden of producing
meaningful and credible evidence of their smoking
history as part of their claim submission.
(8) Malignant level viii.--
(A) In general.--To receive Level VIII
compensation, a claimant shall provide--
(i) a diagnosis of a primary lung cancer
disease on the basis of findings by a board
certified pathologist;
(ii) evidence of bilateral pleural plaques
or bilateral pleural thickening or bilateral
pleural calcification;
(iii) evidence of 12 or more weighted years
of substantial occupational exposure to
asbestos; and
(iv) supporting medical documentation
establishing asbestos exposure as a
contributing factor in causing the lung cancer
in question.
(B) Physicians panel.--A claimant filing a claim
relating to Level VIII under this paragraph may request
that the claim be referred to a Physicians Panel for a
determination on amount of award. In making its
determination under this subparagraph, the Physicians
Panel shall consider the intensity and duration of
exposure, smoking history, and the quality of evidence
relating to exposure and smoking. Claimants shall bear
the burden of producing meaningful and credible
evidence of their smoking history as part of their
claim submission.
(9) Malignant level ix.--
(A) In general.--To receive Level IX compensation,
a claimant shall provide--
(i) a diagnosis of a primary lung cancer
disease on the basis of findings by a board
certified pathologist;
(ii)(I) evidence of--
(aa) asbestosis based on a chest x-
ray of at least 1/0 on the ILO scale
and showing small irregular opacities
of shape or size either ss, st, or tt
and present in both lower lung zones;
and
(bb) 10 or more weighted years of
substantial occupational exposure to
asbestos;
(II) evidence of--
(aa) asbestosis based on a chest x-
ray of at least 1/1 on the ILO scale
and showing small irregular opacities
of shape or size either ss, st, or tt
and present in both lower lung zones;
and
(bb) 8 or more weighted years of
substantial occupational exposure to
asbestos; or
(III) asbestosis determined by pathology
and 10 or more weighted years of substantial
occupational exposure to asbestos; and
(iii) supporting medical documentation
establishing asbestos exposure as a
contributing factor in causing the lung cancer
in question.
(B) Physicians panel.--A claimant filing a claim
with respect to Level IX under this paragraph may
request that the claim be referred to a Physicians
Panel for a determination on amount of award. In making
its determination under this subparagraph, the
Physicians Panel shall consider the intensity and
duration of exposure, smoking history, and the quality
of evidence relating to exposure and smoking. Claimants
shall bear the burden of producing meaningful and
credible evidence of their smoking history as part of
their claim submission.
(10) Malignant level x.--To receive Level X compensation, a
claimant shall provide--
(A) a diagnosis of malignant mesothelioma disease
on the basis of findings by a board certified
pathologist; and
(B) credible evidence of identifiable exposure to
asbestos resulting from--
(i) occupational exposure to asbestos;
(ii) exposure to asbestos fibers brought
into the home of the claimant by a worker
occupationally exposed to asbestos;
(iii) exposure to asbestos fibers resulting
from living or working in the proximate
vicinity of a factory, shipyard, building
demolition site, or other operation that
regularly released asbestos fibers into the air
due to operations involving asbestos at that
site; or
(iv) other identifiable exposure to
asbestos fibers, in which case the claim shall
be reviewed by a Physicians Panel under section
121(f) for a determination of eligibility.
(e) Institute of Medicine Study.--
(1) In general.--Not later than 2 years after date of
enactment of this Act, the Institute of Medicine of the
National Academy of Sciences shall complete a study of the
causal link between asbestos exposure and other cancers,
including colorectal, laryngeal, esophageal, pharyngeal, and
stomach cancers, except for mesothelioma and lung cancers. The
Institute of Medicine shall issue a report on its findings on
causation, which shall be transmitted to Congress, the
Administrator, the Advisory Committee on Asbestos Disease
Compensation or the Medical Advisory Committee, and the
Physicians Panels. The Administrator and the Physicians Panels
may consider the results of the report for purposes of
determining whether asbestos exposure is a substantial
contributing factor under section 121(d)(6)(B).
(2) Subsequent studies.--If the Administrator has evidence
that there have been advancements in science that would require
additional study, the Administrator may request that the
Institute of Medicine conduct a subsequent study to determine
if asbestos exposure is a cause of other cancers.
(f) Exceptional Medical Claims.--
(1) In general.--A claimant who does not meet the medical
criteria requirements under this section may apply for
designation of the claim as an exceptional medical claim.
(2) Application.--When submitting an application for review
of an exceptional medical claim, the claimant shall--
(A) state that the claim does not meet the medical
criteria requirements under this section; or
(B) seek designation as an exceptional medical
claim within 60 days after a determination that the
claim is ineligible solely for failure to meet the
medical criteria requirements under subsection (d).
(3) Report of physician.--
(A) In general.--Any claimant applying for
designation of a claim as an exceptional medical claim
shall support an application filed under paragraph (1)
with a report from a physician meeting the requirements
of this section.
(B) Contents.--A report filed under subparagraph
(A) shall include--
(i) a complete review of the claimant's
medical history and current condition;
(ii) such additional material by way of
analysis and documentation as shall be
prescribed by rule of the Administrator; and
(iii) a detailed explanation as to why the
claim meets the requirements of paragraph
(4)(B).
(4) Review.--
(A) In general.--The Administrator shall refer all
applications and supporting documentation submitted
under paragraph (2) to a Physicians Panel for review
for eligibility as an exceptional medical claim.
(B) Standard.--A claim shall be designated as an
exceptional medical claim if the claimant, for reasons
beyond the control of the claimant, cannot satisfy the
requirements under this section, but is able, through
comparably reliable evidence that meets the standards
under this section, to show that the claimant has an
asbestos-related condition that is substantially
comparable to that of a medical condition that would
satisfy the requirements of a category under this
section.
(C) Additional information.--A Physicians Panel may
request additional reasonable testing to support the
claimant's application.
(D) CT scan.--A claimant may submit a CT Scan in
addition to an x-ray.
(5) Approval.--
(A) In general.--If the Physicians Panel determines
that the medical evidence is sufficient to show a
comparable asbestos-related condition, it shall issue a
certificate of medical eligibility designating the
category of asbestos-related injury under this section
for which the claimant may be eligible to seek
compensation.
(B) Referral.--Upon the issuance of a certificate
under subparagraph (A), the Physicians Panel shall
submit the claim to the Administrator, who shall
proceed to determine whether the claimant meets the
requirements for compensation under this Act.
(6) Resubmission.--Any claimant whose application for
designation as an exceptional medical claim is rejected may
resubmit an application if new evidence becomes available. The
application shall identify any prior applications and state the
new evidence that forms the basis of the resubmission.
(7) Rules.--The Administrator shall promulgate rules
governing the procedures for seeking designation of a claim as
an exceptional medical claim.
(8) Libby, montana.--All claims filed by Libby, Montana
claimants shall be designated as exceptional medical claims and
referred to a Physicians Panel for review. In reviewing the
medical evidence submitted by a Libby, Montana claimant in
support of that claim, and before making an eligibility
determination for a Libby, Montana claimant, the Physicians
Panel shall review the current medical and scientific
literature relating to the study, diagnosis, and treatment of
asbestos-related diseases resulting from exposure to asbestos
and other fibers found in and around Libby, Montana, including
public health assessments prepared by the Agency for Toxic
Substances and Disease Registry for the Libby Asbestos Site.
The Physicians Panel shall take into consideration the unique
and serious nature of asbestos exposure in Libby, Montana,
including the nature of the pleural disease related to asbestos
exposure in Libby, when making a determination of eligibility
and designating the disease category.
Subtitle D--Awards
SEC. 131. AMOUNT.
(a) In General.--An asbestos claimant who meets the requirements of
section 111 shall be entitled to an award in an amount determined by
reference to the benefit table contained in subsection (b).
(b) Benefit Table.--
(1) In general.--An asbestos claimant with an eligible
disease or condition established in accordance with section
121, shall be eligible for an award according to the following
schedule:
Scheduled Condition or
Level Disease Scheduled Value
I Asbestosis/Pleural Medical Monitoring
Disease
II Mixed Disease With $35,000
Impairment
III Asbestosis/Pleural $100,000
Disease B
IV Severe Asbestosis $400,000
V Disabling Asbestosis $850,000
VI Other Cancer $200,000
VII Lung Cancer One individual evaluation;
smokers receive $50,000;
ex-smokers receive
$150,000; non-smokers
receive $625,000
VIII Lung Cancer With Pleural smokers receive $275,000;
Disease ex-smokers $700,000; non-
smokers receive $800,000
IX Lung Cancer With smokers receive $575,000;
Asbestosis ex-smokers receive
$950,000; non-smokers
receive $1,050,000
X Mesothelioma $1,050,000
(2) Definitions.--In this section--
(A) the term ``nonsmoker'' means a claimant who
never smoked; and
(B) the term ``ex-smoker'' means a claimant who has
not smoked during any portion of the 12-year period
preceding the diagnosis of lung cancer.
(3) Values within levels relating to lung cancer.--
(A) In general.--In setting values for levels
relating to lung cancer, the Administrator shall
develop a matrix of classes for each of Levels VII,
VIII, and IX based on--
(i) the smoking history of the claimant,
including whether the claimant currently or in
the past smoked tobacco products, the duration
of smoking, pack years, and whether the
claimant has quit smoking and for how long;
(ii) the age of the claimant at diagnosis
with claim values increased proportionately for
claimants who are younger than the average life
span and reduced for those who are older; and
(iii) the level and duration of asbestos
exposure with those receiving the highest total
dose (level x duration) receiving greater
values.
(B) Determination of exposure.--Levels of exposure
shall be based on research in the fields of
epidemiology and industrial hygiene.
(4) Medical monitoring.--An asbestos claimant with
asymptomatic exposure, based on the criteria under section
121(d)(1), shall only be eligible for medical monitoring
reimbursement as provided under section 132.
(5) Cost-of-living adjustment.--
(A) In general.--Beginning January 1, 2006, award
amounts under paragraph (1) shall be annually increased
by an amount equal to such dollar amount multiplied by
the cost-of-living adjustment, rounded to the nearest
$1,000 increment.
(B) Calculation of cost-of-living adjustment.--For
the purposes of subparagraph (A), the cost-of-living
adjustment for any calendar year shall be the
percentage, if any, by which the consumer price index
for the succeeding calendar year exceeds the consumer
price index for calendar year 2004.
(C) Consumer price index.--
(i) In general.--For the purposes of
subparagraph (B), the consumer price index for
any calendar year is the average of the
consumer price index as of the close of the 12-
month period ending on August 31 of such
calendar year.
(ii) Definition.--For purposes of clause
(i), the term ``consumer price index'' means
the consumer price index published by the
Department of Labor. The consumer price index
series to be used for award escalations shall
include the consumer price index used for all-
urban consumers, with an area coverage of the
United States city average, for all items,
based on the 1982-1984 index based period, as
published by the Department of Labor.
SEC. 132. MEDICAL MONITORING.
(a) Relation to Statute of Limitations.--The filing of a claim
under this Act that seeks reimbursement for medical monitoring shall
not be considered as evidence that the claimant has discovered facts
that would otherwise commence the period applicable for purposes of the
statute of limitations under section 113(b).
(b) Costs.--Reimbursable medical monitoring costs shall include the
costs of a claimant not covered by health insurance for an examination
by the claimant's physician, x-ray tests, and pulmonary function tests
every 3 years.
(c) Regulations.--The Administrator shall promulgate regulations
that establish--
(1) the reasonable costs for medical monitoring that is
reimbursable; and
(2) the procedures applicable to asbestos claimants.
SEC. 133. PAYMENT.
(a) Structured Payments.--
(1) In general.--An asbestos claimant who is entitled to an
award should receive the amount of the award through structured
payments from the Fund, made over a period of 3 years, and in
no event more than 4 years after the date of final adjudication
of the claim.
(2) Payment period and amount.--There shall be a
presumption that any award paid under this subsection shall
provide for payment of--
(A) 40 percent of the total amount in year 1;
(B) 30 percent of the total amount in year 2; and
(C) 30 percent of the total amount in year 3.
(3) Extension of payment period.--
(A) In general.--The Administrator shall develop
guidelines to provide for the payment period of an
award under subsection (a) to be extended to a 4-year
period if such action is warranted in order to preserve
the overall solvency of the Fund. Such guidelines shall
include reference to the number of claims made to the
Fund and the awards made and scheduled to be paid from
the Fund as provided under section 405.
(B) Limitations.--In no event shall less than 50
percent of an award be paid in the first 2 years of the
payment period under this subsection.
(4) Accelerated payments.--The Administrator shall develop
guidelines to provide for accelerated payments to asbestos
claimants who are mesothelioma victims and who are alive on the
date on which the Administrator receives notice of the
eligibility of the claimant. Such payments shall be credited
against the first regular payment under the structured payment
plan for the claimant.
(5) Expedited payments.--The Administrator shall develop
guidelines to provide for expedited payments to asbestos
claimants in cases of exigent circumstances or extreme hardship
caused by asbestos-related injury.
(6) Annuity.--An asbestos claimant may elect to receive any
payments to which they are entitled under this title in the
form of an annuity.
(b) Limitation on Transferability.--A claim filed under this Act
shall not be assignable or otherwise transferable under this Act.
(c) Creditors.--An award under this title shall be exempt from all
claims of creditors and from levy, execution, and attachment or other
remedy for recovery or collection of a debt, and such exemption may not
be waived.
(d) Medicare as Secondary Payer.--No award under this title shall
be deemed a payment for purposes of section 1862 of the Social Security
Act (42 U.S.C. 1395y).
(e) Exempt Property in Asbestos Claimant's Bankruptcy Case.--If an
asbestos claimant files a petition for relief under section 301 of
title 11, United States Code, no award granted under this Act shall be
treated as property of the bankruptcy estate of the asbestos claimant
in accordance with section 541(b)(6) of title 11, United States Code.
SEC. 134. REDUCTION IN BENEFIT PAYMENTS FOR COLLATERAL SOURCES.
(a) In General.--The amount of an award otherwise available to an
asbestos claimant under this title shall be reduced by the amount of
collateral source compensation.
(b) Exclusions.--In no case shall statutory benefits under workers'
compensation laws and veterans' benefits programs be deemed as
collateral source compensation for purposes of this section.
TITLE II--ASBESTOS INJURY CLAIMS RESOLUTION FUND
Subtitle A--Asbestos Defendants Funding Allocation
SEC. 201. DEFINITIONS.
In this subtitle, the following definitions shall apply:
(1) Affiliated group.--The term ``affiliated group''--
(A) means a defendant participant that is an
ultimate parent and any person whose entire beneficial
interest is directly or indirectly owned by that
ultimate parent on the date of enactment of this Act;
and
(B) shall not include any person that is a debtor
or any direct or indirect majority-owned subsidiary of
a debtor.
(2) Class action trust.--The term ``class action trust''
means a trust or similar entity established to hold assets for
the payment of asbestos claims asserted against a debtor or
participating defendant, under a settlement that--
(A) is a settlement of class action claims under
rule 23 of the Federal Rules of Civil Procedure; and
(B) has been approved by a final judgment of a
United States district court before the date of
enactment of this Act.
(3) Debtor.--The term ``debtor''--
(A) means--
(i) a person that is subject to a case
pending under a chapter of title 11, United
States Code, on the date of enactment of this
Act or at any time during the 1-year period
immediately preceding that date, irrespective
of whether the debtor's case under that title
has been dismissed; and
(ii) all of the direct or indirect
majority-owned subsidiaries of a person
described under clause (i), regardless of
whether any such majority-owned subsidiary has
a case pending under title 11, United States
Code; and
(B) shall not include an entity--
(i) subject to chapter 7 of title 11,
United States Code, if a final decree closing
the estate shall have been entered before the
date of enactment of this Act; or
(ii) subject to chapter 11 of title 11,
United States Code, if a plan of reorganization
for such entity shall have been confirmed by a
duly entered order or judgment of a court that
is no longer subject to any appeal or judicial
review, and the substantial consummation, as
such term is defined in section 1101(2) of
title 11, United States Code, of such plan of
reorganization has occurred.
(4) Indemnifiable cost.--The term ``indemnifiable cost''
means a cost, expense, debt, judgment, or settlement incurred
with respect to an asbestos claim that, at any time before
December 31, 2002, was or could have been subject to
indemnification, contribution, surety, or guaranty.
(5) Indemnitee.--The term ``indemnitee'' means a person
against whom any asbestos claim has been asserted before
December 31, 2002, who has received from any other person, or
on whose behalf a sum has been paid by such other person to any
third person, in settlement, judgment, defense, or indemnity in
connection with an alleged duty with respect to the defense or
indemnification of such person concerning that asbestos claim,
other than under a policy of insurance or reinsurance.
(6) Indemnitor.--The term ``indemnitor'' means a person who
has paid under a written agreement at any time before December
31, 2002, a sum in settlement, judgment, defense, or indemnity
to or on behalf of any person defending against an asbestos
claim, in connection with an alleged duty with respect to the
defense or indemnification of such person concerning that
asbestos claim, except that payments by an insurer or reinsurer
under a contract of insurance or reinsurance shall not make the
insurer or reinsurer an indemnitor for purposes of this
subtitle.
(7) Prior asbestos expenditures.--The term ``prior asbestos
expenditures''--
(A) means the gross total amount paid by or on
behalf of a person at any time before December 31,
2002, in settlement, judgment, defense, or indemnity
costs related to all asbestos claims against that
person;
(B) includes payments made by insurance carriers to
or for the benefit of such person or on such person's
behalf with respect to such asbestos claims, except as
provided in section 204(g);
(C) shall not include any payment made by a person
in connection with or as a result of changes in
insurance reserves required by contract or any activity
or dispute related to insurance coverage matters for
asbestos-related liabilities; and
(D) shall not include any payment made by or on
behalf of persons who are or were common carriers by
railroad for asbestos claims brought under the Act of
April 22, 1908 (45 U.S.C. 51 et seq.), commonly known
as the Federal Employers' Liability Act, as a result of
operations as a common carrier by railroad, including
settlement, judgment, defense, or indemnity costs
associated with these claims.
(8) Trust.--The term ``trust'' means any trust, as
described in sections 524(g)(2)(B)(i) or 524(h) of title 11,
United States Code, or established in conjunction with an order
issued under section 105 of title 11, United States Code,
established or formed under the terms of a chapter 11 plan of
reorganization, which in whole or in part provides compensation
for asbestos claims.
(9) Ultimate parent.--The term ``ultimate parent'' means a
person--
(A) that owned, as of December 31, 2002, the entire
beneficial interest, directly or indirectly, of at
least 1 other person; and
(B) whose entire beneficial interest was not owned,
on December 31, 2002, directly or indirectly, by any
other single person (other than a natural person).
SEC. 202. AUTHORITY AND TIERS.
(a) Liability for Payments to the Fund.--
(1) In general.--Defendant participants shall be liable for
payments to the Fund in accordance with this section based on
tiers and subtiers assigned to defendant participants.
(2) Aggregate payment obligations level.--Subject only to
section 204(m), and notwithstanding any other provision of this
Act, the total payments required of all defendant participants
over the life of the Fund shall not exceed $90,000,000,000. The
Administrator shall have the authority to allocate the payments
required of the defendant participants among the tiers as
provided in this title.
(3) Ability to enter reorganization.--Notwithstanding any
other provision of this Act, all debtors that, together with
all of their direct or indirect majority-owned subsidiaries,
have prior asbestos expenditures less than $1,000,000 may
proceed with the filing, solicitation, and confirmation of a
plan of reorganization that does not comply with the
requirements of this Act, including a trust and channeling
injunction. Any asbestos claim made in conjunction with a plan
of reorganization allowable under the preceding sentence shall
be subject to section 403(d) of this Act.
(b) Tier I.--Tier I shall include all debtors that, together with
all of their direct or indirect majority-owned subsidiaries, have prior
asbestos expenditures greater than $1,000,000.
(c) Treatment of Tier I Business Entities in Bankruptcy.--
(1) Definition.--In this subsection, the term ``bankrupt
business entity'' means a person that is not a natural person
that--
(A) filed a petition for relief under chapter 11,
of title 11, United States Code, before January 1,
2003;
(B) has not confirmed a plan of reorganization as
of the date of enactment of this Act; and
(C) the bankruptcy court presiding over the
business entity's case determines, after notice and a
hearing upon motion filed by the entity within 30 days
of the effective date of this Act, which motion shall
be supported by--
(i) an affidavit or declaration of the
Chief Executive Officer, Chief Financial
Officer, or Chief Legal Officer of the business
entity; and
(ii) copies of the entity's public
statements and securities filings made in
connection with the entity's filing for chapter
11 protection that asbestos liability was not
the sole or precipitating cause of the entity's
chapter 11 filing. Notice of such motion shall
be as directed by the bankruptcy court and the
hearing shall be limited to consideration of
the question of whether or not asbestos
liability was the sole or precipitating cause
of the entity's chapter 11 filing. The
bankruptcy court shall hold a hearing and make
its determination with respect to the motion
within 60 days after the date the motion is
filed. In making its determination, the
bankruptcy court shall take into account the
affidavits, public statements, and securities
filings, and other information, if any,
submitted by the entity and all other facts and
circumstances presented by an objecting party.
Any review of this determination must be an
expedited appeal and limited to whether the
decision was against the weight of the
evidence.
(2) Proceeding with reorganization plan.--A bankrupt
business entity may proceed with the filing, solicitation, and
confirmation of a plan of reorganization that does not comply
with the requirements of this Act, including a trust and
channeling injunction described in section 524(g) of title 11,
United States Code, notwithstanding any other provisions of
this Act, if--
(A) on request of a party in interest or on a
motion of the court, and after a notice and a hearing,
the bankruptcy court presiding over the chapter 11 case
of the bankrupt business entity determines that--
(i) confirmation is necessary to permit the
reorganization of that entity and assure that
all creditors and that entity are treated
fairly and equitably; and
(ii) confirmation is clearly favored by the
balance of the equities; and
(B) an order confirming the plan of reorganization
is entered by the bankruptcy court within 9 months
after the date of enactment of this Act or such longer
period of time approved by the bankruptcy court for
cause shown.
(3) Applicability.--If the bankruptcy court does not make
the required determination, or if an order confirming the plan
is not entered within 9 months after the effective date of this
Act or such longer period of time approved by the bankruptcy
court for cause shown, the provisions of this Act shall apply
to the bankrupt business entity notwithstanding the
certification. Any timely appeal under title 11, United States
Code, from a confirmation order entered during the applicable
time period shall automatically extend the time during which
this Act is inapplicable to the bankrupt business entity, until
the appeal is fully and finally resolved.
(4) Offsets.--
(A) Payments by insurers.--To the extent that a
bankrupt business entity or debtor successfully
confirms a plan of reorganization, including a trust,
and channeling injunction that involves payments by
insurers who are otherwise subject to this Act as
described in section 524(g) of title 11, United States
Code, an insurer who makes payments to the trust, shall
obtain a dollar for dollar reduction in the amount
otherwise payable by that insurer under this Act to the
Fund.
(B) Contributions to fund.--Any cash payments by a
bankrupt business entity, if any, to a trust described
in section 524(g) of title 11, United States Code, may
be counted as a contribution to the Fund.
(d) Tiers II Through VI.--Except as provided in subsection (b) of
this section and section 204, persons or affiliated groups are included
in Tier II, III, IV, V, or VI according to the prior asbestos
expenditures paid by such persons or affiliated groups as follows:
(1) Tier II: $75,000,000 or greater.
(2) Tier III: $50,000,000 or greater, but less than
$75,000,000.
(3) Tier IV: $10,000,000 or greater, but less than
$50,000,000.
(4) Tier V: $5,000,000 or greater, but less than
$10,000,000.
(5) Tier VI: $1,000,000 or greater, but less than
$5,000,000.
(e) Tier Placement and Costs.--
(1) Permanent tier placement.--After a defendant
participant or affiliated group is assigned to a tier and
subtier under section 204(i)(6), the participant or affiliated
group shall remain in that tier and subtier throughout the life
of the Fund, regardless of subsequent events, including--
(A) the filing of a petition under a chapter of
title 11, United States Code;
(B) a discharge of debt in bankruptcy;
(C) the confirmation of a plan of reorganization;
or
(D) the sale or transfer of assets to any other
person or affiliated group,
unless the Administrator finds that the information submitted
by the participant or affiliated group to support its inclusion
in that tier was inaccurate.
(2) Costs.--Payments to the Fund by all persons that are
the subject of a case under a chapter of title 11, United
States Code, after the date of enactment of this Act--
(A) shall constitute costs and expenses of
administration of the case under section 503 of title
11, United States Code, and shall be payable in
accordance with the payment provisions under this
subtitle notwithstanding the pendency of the case under
that title 11;
(B) shall not be stayed or affected as to
enforcement or collection by any stay or injunction
power of any court; and
(C) shall not be impaired or discharged in any
current or future case under title 11, United States
Code.
(f) Superseding Provisions.--
(1) In general.--All of the following shall be superseded
in their entireties by this Act:
(A) The treatment of any asbestos claim in any plan
of reorganization with respect to any debtor included
in Tier I.
(B) Any asbestos claim against any debtor included
in Tier I.
(C) Any agreement, understanding, or undertaking by
any such debtor or any third party with respect to the
treatment of any asbestos claim filed in a debtor's
bankruptcy case or with respect to a debtor before the
date of enactment of this Act, whenever such debtor's
case is either still pending, if such case is pending
under a chapter other than chapter 11 of title 11,
United States Code, or subject to confirmation or
substantial consummation of a plan of reorganization
under chapter 11 of title 11, United States Code.
(2) Prior agreements of no effect.--Any plan of
reorganization, agreement, understanding, or undertaking by any
debtor or any third party under paragraph (1) of this
subsection, to the extent it relates to any asbestos claim,
shall be of no force or effect, and no person shall have any
right or claim with respect to any of the foregoing.
SEC. 203. SUBTIERS.
(a) In General.--
(1) Subtier liability.--Except as otherwise provided under
subsections (b), (d), and (l) of section 204, persons or
affiliated groups shall be included within Tiers I through VII
and shall pay amounts to the Fund in accordance with this
section.
(2) Revenues.--
(A) In general.--For purposes of this section,
revenues shall be determined in accordance with
generally accepted accounting principles, consistently
applied, using the amount reported as revenues in the
annual report filed with the Securities and Exchange
Commission in accordance with the Securities Exchange
Act of 1934 (15 U.S.C. 78a et seq.) for the most recent
fiscal year ending on or before December 31, 2002. If
the defendant participant or affiliated group does not
file reports with the Securities and Exchange
Commission, revenues shall be the amount that the
defendant participant or affiliated group would have
reported as revenues under the rules of the Securities
and Exchange Commission in the event that it had been
required to file.
(B) Insurance premiums.--Any portion of revenues of
a defendant participant that is derived from insurance
premiums shall not be used to calculate the payment
obligation of that defendant participant under this
subtitle.
(C) Debtors.--Each debtor's revenues shall include
the revenues of the debtor and all of the direct or
indirect majority-owned subsidiaries of that debtor,
except that the pro forma revenues of a person that is
included in Subtier 2 of Tier I shall not be included
in calculating the revenues of any debtor that is a
direct or indirect majority owner of such Subtier 2
person. If a debtor or affiliated group includes a
person in respect of whose liabilities for asbestos
claims a class action trust has been established, there
shall be excluded from the 2002 revenues of such debtor
or affiliated group--
(i) all revenues of the person in respect
of whose liabilities for asbestos claims the
class action trust was established; and
(ii) all revenues of the debtor and
affiliated group attributable to the historical
business operations or assets of such person,
regardless of whether such business operations
or assets were owned or conducted during the
year 2002 by such person or by any other person
included within such debtor and affiliated
group.
(b) Tier I Subtiers.--
(1) In general.--Each debtor in Tier I shall be included in
subtiers and shall pay amounts to the Fund as provided under
this section.
(2) Subtier 1.--
(A) In general.--All persons that are debtors with
prior asbestos expenditures of $1,000,000 or greater,
shall be included in Subtier 1.
(B) Payment.--Each debtor included in Subtier 1
shall pay on an annual basis 1.5184 percent of the
debtor's 2002 revenues.
(C) Other assets.--The Administrator, at the sole
discretion of the Administrator, may allow a Subtier 1
debtor to satisfy its funding obligation under this
paragraph with assets other than cash if the
Administrator determines that requiring an all-cash
payment of the debtor's funding obligation would render
the debtor's reorganization infeasible.
(D) Liability.--
(i) In general.--If a person who is subject
to a case pending under a chapter of title 11,
United States Code, as defined in section
201(3)(A)(i), does not pay when due any payment
obligation for the debtor, the Administrator
shall have the right to seek payment of all or
any portion of the entire amount due (as well
as any other amount for which the debtor may be
liable under sections 223 and 224) from any of
the direct or indirect majority-owned
subsidiaries under section 201(3)(A)(ii).
(ii) Cause of action.--Notwithstanding
section 221(e), this Act shall not preclude
actions among persons within a debtor under
section 201(3)(A) (i) and (ii) with respect to
the payment obligations under this Act.
(3) Subtier 2.--
(A) In general.--Notwithstanding paragraph (2), all
persons that are debtors that have no material
continuing business operations but hold cash or other
assets that have been allocated or earmarked for the
settlement of asbestos claims shall be included in
Subtier 2.
(B) Assignment of assets.--Not later than 90 days
after the date of enactment of this Act, each person
included in Subtier 2 shall assign all of its assets to
the Fund.
(4) Subtier 3.--
(A) In general.--Notwithstanding paragraph (2), all
persons that are debtors other than those included in
Subtier 2, which have no material continuing business
operations and no cash or other assets allocated or
earmarked for the settlement of any asbestos claim,
shall be included in Subtier 3.
(B) Assignment of unencumbered assets.--Not later
than 90 days after the date of enactment of this Act,
each person included in Subtier 3 shall contribute an
amount equal to 50 percent of its total unencumbered
assets.
(C) Calculation of unencumbered assets.--
Unencumbered assets shall be calculated as the Subtier
3 person's total assets, excluding insurance-related
assets, less--
(i) all allowable administrative expenses;
(ii) allowable priority claims under
section 507 of title 11, United States Code;
and
(iii) allowable secured claims.
(5) Class action trust.--The assets of any class action
trust that has been established in respect of the liabilities
for asbestos claims of any person included within a debtor and
affiliated group that has been included in Tier I (exclusive of
any assets needed to pay previously incurred expenses and
asbestos claims reduced to a final order or judgment within the
meaning of section 403(d)(1) before the date of enactment of
this Act) shall be transferred to the Fund not later than 6
months after the date of enactment of this Act.
(c) Tier II Subtiers.--
(1) In general.--Each person or affiliated group in Tier II
shall be included in 1 of the 5 subtiers of Tier II, based on
the person's or affiliated group's revenues. Such subtiers
shall each contain as close to an equal number of total persons
and affiliated groups as possible, with--
(A) those persons or affiliated groups with the
highest revenues included in Subtier 1;
(B) those persons or affiliated groups with the
next highest revenues included in Subtier 2;
(C) those persons or affiliated groups with the
lowest revenues included in Subtier 5;
(D) those persons or affiliated groups with the
next lowest revenues included in Subtier 4; and
(E) those persons or affiliated groups remaining
included in Subtier 3.
(2) Payments.--Each person or affiliated group within each
subtier shall pay, on an annual basis, the following:
(A) Subtier 1: $27,500,000.
(B) Subtier 2: $24,750,000.
(C) Subtier 3: $22,000,000.
(D) Subtier 4: $19,250,000.
(E) Subtier 5: $16,500,000.
(d) Tier III Subtiers.--
(1) In general.--Each person or affiliated group in Tier
III shall be included in 1 of the 5 subtiers of Tier III, based
on the person's or affiliated group's revenues. Such subtiers
shall each contain as close to an equal number of total persons
and affiliated groups as possible, with--
(A) those persons or affiliated groups with the
highest revenues included in Subtier 1;
(B) those persons or affiliated groups with the
next highest revenues included in Subtier 2;
(C) those persons or affiliated groups with the
lowest revenues included in Subtier 5;
(D) those persons or affiliated groups with the
next lowest revenues included in Subtier 4; and
(E) those persons or affiliated groups remaining
included in Subtier 3.
(2) Payments.--Each person or affiliated group within each
subtier shall pay, on an annual basis, the following:
(A) Subtier 1: $16,500,000.
(B) Subtier 2: $13,750,000.
(C) Subtier 3: $11,000,000.
(D) Subtier 4: $8,250,000.
(E) Subtier 5: $5,500,000.
(e) Tier IV Subtiers.--
(1) In general.--Each person or affiliated group in Tier IV
shall be included in 1 of the 4 subtiers of Tier IV, based on
the person's or affiliated group's revenues. Such subtiers
shall each contain as close to an equal number of total persons
and affiliated groups as possible, with those persons or
affiliated groups with the highest revenues in Subtier 1, those
with the lowest revenues in Subtier 4. Those persons or
affiliated groups with the highest revenues among those
remaining will be included in Subtier 2 and the rest in Subtier
3.
(2) Payment.--Each person or affiliated group within each
subtier shall pay, on an annual basis, the following:
(A) Subtier 1: $3,850,000.
(B) Subtier 2: $2,475,000.
(C) Subtier 3: $1,650,000.
(D) Subtier 4: $550,000.
(f) Tier V Subtiers.--
(1) In general.--Each person or affiliated group in Tier V
shall be included in 1 of the 3 subtiers of Tier V, based on
the person's or affiliated group's revenues. Such subtiers
shall each contain as close to an equal number of total persons
and affiliated groups as possible, with those persons or
affiliated groups with the highest revenues in Subtier 1, those
with the lowest revenues in Subtier 3, and those remaining in
Subtier 2.
(2) Payment.--Each person or affiliated group within each
subtier shall pay, on an annual basis, the following:
(A) Subtier 1: $1,100,000.
(B) Subtier 2: $550,000.
(C) Subtier 3: $220,000.
(g) Tier VI Subtiers.--
(1) In general.--Each person or affiliated group in Tier VI
shall be included in 1 of the 3 subtiers of Tier VI, based on
the person's or affiliated group's revenues. Such subtiers
shall each contain as close to an equal number of total persons
and affiliated groups as possible, with those persons or
affiliated groups with the highest revenues in Subtier 1, those
with the lowest revenues in Subtier 3, and those remaining in
Subtier 2.
(2) Payment.--Each person or affiliated group within each
subtier shall pay, on an annual basis, the following:
(A) Subtier 1: $550,000.
(B) Subtier 2: $275,000.
(C) Subtier 3: $110,000.
(h) Tier VII.--
(1) In general.--Notwithstanding prior asbestos
expenditures that might qualify a person or affiliated group to
be included in Tiers II, III, IV, V, or VI, a person or
affiliated group shall also be included in Tier VII, if the
person or affiliated group--
(A) is or has at any time been subject to asbestos
claims brought under the Federal Employers' Liability
Act (45 U.S.C. 51 et seq.) as a result of operations as
a common carrier by railroad; and
(B) has paid (including any payments made by others
on behalf of such person or affiliated group) not less
than $5,000,000 in settlement, judgment, defense, or
indemnity costs relating to such claims.
(2) Additional amount.--The payment requirement for persons
or affiliated groups included in Tier VII shall be in addition
to any payment requirement applicable to such person or
affiliated group under Tiers II through VI.
(3) Subtier 1.--Each person or affiliated group in Tier VII
with revenues of $5,000,000,000 or more is included in Subtier
1 and shall make annual payments of $10,000,000 to the Fund.
(4) Subtier 2.--Each person or affiliated group in Tier VII
with revenues of less than $5,000,000,000, but not less than
$3,000,000,000 is included in Subtier 2 and shall make annual
payments of $5,000,000 to the Fund.
(5) Subtier 3.--Each person or affiliated group in Tier VII
with revenues of less than $3,000,000,000, but not less than
$500,000,000 is included in Subtier 3 and shall make annual
payments of $500,000 to the Fund.
(6) Joint venture revenues and liability.--
(A) Revenues.--For purposes of this subsection, the
revenues of a joint venture shall be included on a pro
rata basis reflecting relative joint ownership to
calculate the revenues of the parents of that joint
venture. The joint venture shall not be responsible for
a contribution amount under this subsection.
(B) Liability.--For purposes of this subsection,
the liability under the Act of April 22, 1908 (45
U.S.C. 51 et seq.), commonly known as the Federal
Employers' Liability Act, shall be attributed to the
parent owners of the joint venture on a pro rata basis,
reflecting their relative share of ownership. The joint
venture shall not be responsible for a payment amount
under this provision.
SEC. 204. ASSESSMENT ADMINISTRATION.
(a) In General.--Subject to subsection (m), each defendant
participant or affiliated group shall pay to the Fund in the amounts
provided under this subtitle as appropriate for its tier and subtier
each year until the earlier to occur of the following:
(1) The participant or affiliated group has satisfied its
obligations under this subtitle during the first 23 annual
payment cycles of the operation of the Fund.
(2) The amount received by the Fund from defendant
participants, excluding any amounts rebated to defendant
participants under subsection (d), equals the maximum aggregate
payment obligation of section 202(a)(2).
(b) Small Business Exemption.--Notwithstanding any other provision
of this subtitle, a person or affiliated group that is a small business
concern (as defined under section 3 of the Small Business Act (15
U.S.C. 632)), on December 31, 2002, is exempt from any payment
requirement under this subtitle and shall not be included in the
subtier allocations under section 203.
(c) Procedures.--The Administrator shall prescribe procedures on
how amounts payable under this subtitle are to be paid, including, to
the extent the Administrator determines appropriate, procedures
relating to payment in installments.
(d) Adjustments.--
(1) In general.--Under expedited procedures established by
the Administrator, a defendant participant may seek adjustment
of the amount of its payment obligation based on severe
financial hardship or demonstrated inequity. The Administrator
may determine whether to grant an adjustment and the size of
any such adjustment, in accordance with this subsection. A
defendant participant has a right to obtain a rehearing of the
Administrator's determination under this subsection under the
procedures prescribed in subsection (i)(10). The Administrator
may adjust a defendant participant's payment obligations under
this subsection, either by forgiving the relevant portion of
the otherwise applicable payment obligation or by providing
relevant rebates from the defendant hardship and inequity
adjustment account created under subsection (j) after payment
of the otherwise applicable payment obligation, at the
discretion of the Administrator.
(2) Financial hardship adjustments.--
(A) In general.--A defendant participant may apply
for an adjustment based on financial hardship at any
time during the period in which a payment obligation to
the Fund remains outstanding and may qualify for such
adjustment by demonstrating that the amount of its
payment obligation under the statutory allocation would
constitute a severe financial hardship.
(B) Term.--Subject to the annual availability of
funds in the defendant hardship and inequity adjustment
account established under subsection (j), a financial
hardship adjustment under this subsection shall have a
term of 3 years.
(C) Renewal.--After an initial hardship adjustment
is granted under this paragraph, a defendant
participant may renew its hardship adjustment by
demonstrating that it remains justified.
(D) Reinstatement.--Following the expiration of the
hardship adjustment period provided for under this
section and during the funding period prescribed under
subsection (a) or (m), the Administrator shall annually
determine whether there has been a material change in
the financial condition of the defendant participant
such that the Administrator may, consistent with the
policies and legislative intent underlying this Act,
reinstate under terms and conditions established by the
Administrator any part or all of the defendant
participant's payment obligation under the statutory
allocation that was not paid during the hardship
adjustment term.
(3) Inequity adjustments.--
(A) In general.--A defendant participant--
(i) may qualify for an adjustment based on
inequity by demonstrating that the amount of
its payment obligation under the statutory
allocation is exceptionally inequitable--
(I) when measured against the
amount of the likely cost to the
defendant participant net of insurance
of its future liability in the tort
system in the absence of the Fund; or
(II) when compared to the median
payment rate for all defendant
participants in the same tier; or
(III) when measured against the
percentage of the prior asbestos
expenditures of the defendant that were
incurred with respect to claims that
neither resulted in an adverse judgment
against the defendant, nor were the
subject of a settlement that required a
payment to a plaintiff by or on behalf
of that defendant; and
(ii) shall qualify for a two-tier main tier
and a two-tier subtier adjustment reducing the
defendant participant's payment obligation
based on inequity by demonstrating that not
less than 95 percent of such person's prior
asbestos expenditures arose from claims related
to the manufacture and sale of railroad
locomotives and related products, so long as
such person's manufacture and sale of railroad
locomotives and related products is temporally
and causally remote. For purposes of this
clause, a person's manufacture and sale of
railroad locomotives and related products shall
be deemed to be temporally and causally remote
if the asbestos claims historically and
generally filed against such person relate to
the manufacture and sale of railroad
locomotives and related products by an entity
dissolved more than 25 years before the date of
enactment of this Act.
(B) Payment rate.--For purposes of subparagraph
(A), the payment rate of a defendant participant is the
payment amount of the defendant participant as a
percentage of such defendant participant's gross
revenues for the year ending December 31, 2002.
(C) Term.--Subject to the annual availability of
funds in the defendant hardship and inequity adjustment
account established under subsection (j), an inequity
adjustment under this subsection shall have a term of 3
years.
(D) Renewal.--A defendant participant may renew an
inequity adjustment every 3 years by demonstrating that
the adjustment remains justified.
(E) Reinstatement.--
(i) In general.--Following the termination
of an inequity adjustment under subparagraph
(A), and during the funding period prescribed
under subsection (a) or (m), the Administrator
shall annually determine whether there has been
a material change in conditions which would
support a finding that the amount of the
defendant participant's payment under the
statutory allocation was not inequitable. Based
on this determination, the Administrator may,
consistent with the policies and legislative
intent underlying this Act, reinstate any or
all of the payment obligations of the defendant
participant as if the inequity adjustment had
not been granted for that 3-year period.
(ii) Terms and conditions.--In the event of
a reinstatement under clause (i), the
Administrator may require the defendant
participant to pay any part or all of amounts
not paid due to the inequity adjustment on such
terms and conditions as established by the
Administrator.
(4) Limitation on adjustments.--The aggregate total of
financial hardship adjustments under paragraph (2) and inequity
adjustments under paragraph (3) in effect in any given year
shall not exceed $250,000,000, except to the extent additional
monies are available for such adjustments as a result of
carryover of prior years' funds under subsection (j)(3) or as a
result of monies being made available in that year under
subsection (k)(1)(A).
(5) Advisory panels.--
(A) Appointment.--The Administrator shall appoint a
Financial Hardship Adjustment Panel and an Inequity
Adjustment Panel to advise the Administrator in
carrying out this subsection.
(B) Membership.--The membership of the panels
appointed under subparagraph (A) may overlap.
(C) Coordination.--The panels appointed under
subparagraph (A) shall coordinate their deliberations
and advice.
(e) Limitation on Liability.--The liability of each defendant
participant to pay to the Fund shall be limited to the payment
obligations under this Act, and, except as provided in subsection (f)
and section 203(b)(2)(D), no defendant participant shall have any
liability for the payment obligations of any other defendant
participant.
(f) Consolidation of Payments.--
(1) In general.--For purposes of determining the payment
levels of defendant participants, any affiliated group
including 1 or more defendant participants may irrevocably
elect, as part of the submissions to be made under paragraphs
(1) and (3) of subsection (i), to report on a consolidated
basis all of the information necessary to determine the payment
level under this subtitle and pay to the Fund on a consolidated
basis.
(2) Election.--If an affiliated group elects consolidation
as provided in this subsection--
(A) for purposes of this Act other than this
subsection, the affiliated group shall be treated as if
it were a single participant, including with respect to
the assessment of a single annual payment under this
subtitle for the entire affiliated group;
(B) the ultimate parent of the affiliated group
shall prepare and submit each submission to be made
under subsection (i) on behalf of the entire affiliated
group and shall be solely liable, as between the
Administrator and the affiliated group only, for the
payment of the annual amount due from the affiliated
group under this subtitle, except that, if the ultimate
parent does not pay when due any payment obligation for
the affiliated group, the Administrator shall have the
right to seek payment of all or any portion of the
entire amount due (as well as any other amount for
which the affiliated group may be liable under sections
223 and 224) from any member of the affiliated group;
(C) all members of the affiliated group shall be
identified in the submission under subsection (i) and
shall certify compliance with this subsection and the
Administrator's regulations implementing this
subsection; and
(D) the obligations under this subtitle shall not
change even if, after the date of enactment of this
Act, the beneficial ownership interest between any
members of the affiliated group shall change.
(3) Cause of action.--Notwithstanding section 221(e), this
Act shall not preclude actions among persons within an
affiliated group with respect to the payment obligations under
this Act.
(g) Determination of Prior Asbestos Expenditures.--
(1) In general.--For purposes of determining a defendant
participant's prior asbestos expenditures, the Administrator
shall prescribe such rules as may be necessary or appropriate
to assure that payments by indemnitors before December 31,
2002, shall be counted as part of the indemnitor's prior
asbestos expenditures, rather than the indemnitee's prior
asbestos expenditures, in accordance with this subsection.
(2) Indemnifiable costs.--If an indemnitor has paid or
reimbursed to an indemnitee any indemnifiable cost or otherwise
made a payment on behalf of or for the benefit of an indemnitee
to a third party for an indemnifiable cost before December 31,
2002, the amount of such indemnifiable cost shall be solely for
the account of the indemnitor for purposes under this Act.
(3) Insurance payments.--When computing the prior asbestos
expenditures with respect to an asbestos claim, any amount paid
or reimbursed by insurance shall be solely for the account of
the indemnitor, even if the indemnitor would have no direct
right to the benefit of the insurance, if--
(A) such insurance has been paid or reimbursed to
the indemnitor or the indemnitee, or paid on behalf of
or for the benefit of the indemnitee; and
(B) the indemnitor has either, with respect to such
asbestos claim or any similar asbestos claim, paid or
reimbursed to its indemnitee any indemnifiable cost or
paid to any third party on behalf of or for the benefit
of the indemnitee any indemnifiable cost.
(h) Minimum Annual Payments.--
(1) In general.--Except as provided under subsection (m),
the aggregate annual payments of defendant participants to the
Fund shall be at least $2,500,000,000 for each calendar year in
the first 23 years of the Fund, or until such shorter time as
the condition set forth in subsection (a)(2) of this section is
attained.
(2) Guaranteed payment account.--To the extent payments in
accordance with sections 202 and 203 (as modified by
subsections (b), (d), (f) and (g) of this section) fail in any
year to raise at least $2,500,000,000 net of any adjustments
under subsection (d), the balance needed to meet this required
minimum aggregate annual payment shall be obtained from the
defendant guaranteed payment account established under
subsection (k).
(3) Guaranteed payment surcharge.--To the extent the
procedure set forth in paragraph (2) is insufficient to satisfy
the required minimum aggregate annual payment net of any
adjustments under subsection (d), the Administrator may assess
a guaranteed payment surcharge under subsection (l).
(i) Procedures for Making Payments.--
(1) Initial year: tiers ii-vi.--
(A) In general.--Not later than 180 days after
enactment of this Act, each defendant participant that
is included in Tiers II, III, IV, V, or VI shall file
with the Administrator--
(i) a statement of whether the defendant
participant irrevocably elects to report on a
consolidated basis under subsection (f);
(ii) a good faith estimate of its prior
asbestos expenditures;
(iii) a statement of its 2002 revenues,
determined in accordance with section
203(a)(2); and
(iv) payment in the amount specified in
section 203 for the lowest subtier of the tier
within which the defendant participant falls,
except that if the defendant participant, or
the affiliated group including the defendant
participant, had 2002 revenues exceeding
$3,000,000,000, it or its affiliated group
shall pay the amount specified for Subtier 3 of
Tiers II, III, or IV or Subtier 2 of Tiers V or
VI, depending on the applicable Tier.
(B) Relief.--The Administrator shall establish
procedures to grant a defendant participant relief from
its initial payment obligation where the participant
shows that it is likely to qualify for a financial
hardship adjustment, and that failure to provide
interim relief would cause severe irreparable harm. The
Administrator's refusal to grant such relief is subject
to immediate judicial review under section 303.
(2) Initial year: tier i.--Not later than 90 days after
enactment of this Act, each debtor shall file with the
Administrator--
(A) a statement identifying the bankruptcy case(s)
associated with the debtor;
(B) a statement whether its prior asbestos
expenditures exceed $1,000,000;
(C) a statement whether it has material continuing
business operations and, if not, whether it holds cash
or other assets that have been allocated or earmarked
for asbestos settlements;
(D) in the case of debtors falling within Subtier 1
of Tier I, a statement of the debtor's 2002 revenues,
determined in accordance with section 203(a)(2), and a
payment under section 203(b)(2)(B);
(E) in the case of debtors falling within Subtier 2
of Tier I, an assignment of its assets under section
203(b)(3)(B); and
(F) in the case of debtors falling within Subtier 3
of Tier I, a payment under section 203(b)(4)(B), and a
statement of how such payment was calculated.
(3) Initial year: tier vii.--Not later than 90 days after
enactment of this Act, each defendant participant in Tier VII
shall file with the Administrator--
(A) a good faith estimate of all payments of the
type described in section 203(h)(1) (as modified by
section 203(h)(6));
(B) a statement of revenues calculated in
accordance with sections 203(a)(2) and 203(h); and
(C) payment in the amount specified in section
203(h).
(4) Notice to participants.--Not later than 240 days after
enactment of this Act, the Administrator shall--
(A) directly notify all reasonably identifiable
defendant participants of the requirement to submit
information necessary to calculate the amount of any
required payment to the Fund; and
(B) publish in the Federal Register a notice
setting forth the criteria in this Act, and as
prescribed by the Administrator in accordance with this
Act, for paying under this subtitle as a defendant
participant and requiring any person who may be a
defendant participant to submit such information.
(5) Response required.--
(A) In general.--Any person who receives notice
under paragraph (4)(A), and any other person meeting
the criteria specified in the notice published under
paragraph (4)(B), shall provide the Administrator with
an address to send any notice from the Administrator in
accordance with this Act and all the information
required by the Administrator in accordance with this
subsection no later than the earlier of--
(i) 30 days after the receipt of direct
notice; or
(ii) 30 days after the publication of
notice in the Federal Register.
(B) Certification.--The response submitted under
subparagraph (A) shall be signed by a responsible
corporate officer, general partner, proprietor, or
individual of similar authority, who shall certify
under penalty of law the completeness and accuracy of
the information submitted.
(C) Consent to audit authority.--The response
submitted under subparagraph (A) shall include, on
behalf of the defendant participant or affiliated
group, a consent to the Administrator's audit authority
under section 221(d).
(6) Notice of initial determination.--
(A) In general.--Not later than 60 days after
receiving a response under paragraph (5), the
Administrator shall send the person a notice of initial
determination identifying the tier and subtier, if any,
into which the person falls and the annual payment
obligation, if any, to the Fund, which determination
shall be based on the information received from the
person under this subsection and any other pertinent
information available to the Administrator and
identified to the defendant participant.
(B) No response; incomplete response.--If no
response in accordance with paragraph (5) is received
from a defendant participant, or if the response is
incomplete, the initial determination shall be based on
the best information available to the Administrator.
(C) Payments.--Within 30 days of receiving a notice
of initial determination requiring payment, the
defendant participant shall pay the Administrator the
amount required by the notice, after deducting any
previous payment made by the participant under this
subsection. If the amount that the defendant
participant is required to pay is less than any
previous payment made by the participant under this
subsection, the Administrator shall credit any excess
payment against the future payment obligations of that
defendant participant. The pendency of a petition for
rehearing under paragraph (10) shall not stay the
obligation of the participant to make the payment
specified in the Administrator's notice.
(7) Exemptions for information required.--
(A) Prior asbestos expenditures.--In lieu of
submitting information related to prior asbestos
expenditures as may be required for purposes of this
subtitle, a non-debtor defendant participant may
consent to be assigned to Tier II.
(B) Revenues.--In lieu of submitting information
related to revenues as may be required for purposes of
this subtitle, a non-debtor defendant participant may
consent to be assigned to Subtier 1 of the defendant
participant's applicable tier.
(8) New information.--
(A) Existing participant.--The Administrator shall
adopt procedures for requiring additional payment, or
refunding amounts already paid, based on new
information received.
(B) Additional participant.--If the Administrator,
at any time, receives information that an additional
person may qualify as a defendant participant, the
Administrator shall require such person to submit
information necessary to determine whether that person
is required to make payments, and in what amount, under
this subtitle and shall make any determination or take
any other act consistent with this Act based on such
information or any other information available to the
Administrator with respect to such person.
(9) Subpoenas.--The Administrator may request the Attorney
General to subpoena persons to compel testimony, records, and
other information relevant to its responsibilities under this
section. The Attorney General may enforce such subpoena in
appropriate proceedings in the United States district court for
the district in which the person to whom the subpoena was
addressed resides, was served, or transacts business.
(10) Rehearing.--A defendant participant has a right to
obtain rehearing of the Administrator's determination under
this subsection of the applicable tier or subtier and of the
Administrator's determination under subsection (d) of a
financial hardship or inequity adjustment, if the request for
rehearing is filed within 30 days after the defendant
participant's receipt of notice from the Administrator of the
determination. A defendant participant may not file an action
under section 303 unless the defendant participant requests a
rehearing under this paragraph.
(j) Defendant Hardship and Inequity Adjustment Account.--
(1) In general.--To the extent the total payments by
defendant participants in any given year exceed the minimum
aggregate annual payments under subsection (h) of this section,
excess monies up to a maximum of $250,000,000 in any such year
shall be placed in a defendant hardship and inequity adjustment
account established within the Fund by the Administrator.
(2) Use of account monies.--Monies from the defendant
hardship and inequity adjustment account shall be preserved and
administered like the remainder of the Fund, but shall be
reserved and may be used only--
(A) to make up for any relief granted to a
defendant participant for severe financial hardship or
demonstrated inequity under subsection (d) of this
section or to reimburse any defendant participant
granted such relief after its payment of the amount
otherwise due; and
(B) if the condition set forth in subsection (a)(2)
of this section is met, for any purpose that the Fund
may serve under this Act, unless the Administrator
shall have published a final certification requiring a
contingent call under subsection (m)(3)(D).
(3) Carryover of unused funds.--To the extent the
Administrator does not, in any given year, use all of the funds
allocated to the account under paragraph (1) for adjustments
granted under subsection (d), remaining funds in the account
shall be carried forward for use by the Administrator for
adjustments in subsequent years.
(k) Defendant Guaranteed Payment Account.--
(1) In general.--Subject to subsections (h) and (j), in the
event there are excess monies paid by defendant participants in
any given year, such monies--
(A) may be used to provide additional adjustments
under subsection (d), up to a maximum aggregate of
$50,000,000 in such year; and
(B) to the extent not used under subparagraph (A),
shall be placed in a defendant guaranteed payment
account established within the Fund by the
Administrator.
(2) Use of account monies.--Monies from the defendant
guaranteed payment account shall be preserved and administered
like the remainder of the Fund, but shall be reserved and may
be used only--
(A) to ensure the minimum aggregate annual payment
set forth in subsection (h) net of any adjustments
under subsection (d) is reached each year; and
(B) if the condition set forth in subsection (a)(2)
of this section is met, for any purpose that the Fund
may serve under this Act, unless the Administrator
shall have published a final certification requiring a
contingent call under subsection (m)(3)(D).
(l) Guaranteed Payment Surcharge.--
(1) In general.--To the extent there are insufficient
monies in the defendant guaranteed payment account established
in subsection (k) to attain the minimum aggregate annual
payment net of any adjustments under subsection (d) in any
given year, the Administrator may impose on each defendant
participant a surcharge as necessary to raise the balance
required to attain the minimum aggregate annual payment net of
any adjustments under subsection (d), as provided in this
subsection. Any such surcharge shall be imposed on a pro rata
basis, in accordance with each defendant participant's relative
annual liability under sections 202 and 203 (as modified by
subsections (b), (d), (f), and (g) of this section).
(2) Certification.--
(A) In general.--Before imposing a guaranteed
payment surcharge under this subsection, the
Administrator shall certify that he or she has used all
reasonable efforts to collect mandatory payments for
all defendant participants, including by using the
authority in subsection (i)(9) of this section and
section 223.
(B) Notice and comment.--Before making a final
certification under subparagraph (C), the Administrator
shall publish a notice in the Federal Register of a
proposed certification and provide in such notice for a
public comment period of 30 days.
(C) Final certification.--
(i) In general.--The Administrator shall
publish a notice of the final certification in
the Federal Register after consideration of all
comments submitted under subparagraph (B).
(ii) Written notice.--Not later than 30
days after publishing any final certification
under clause (i), the Administrator shall
provide each defendant participant with written
notice of that defendant participant's payment,
including the amount of any surcharge.
(m) Contingent Call for Mandatory Additional Payments.--
(1) In general.--Notwithstanding section 202(a)(2) and
subsection (a) of this section, the Administrator may require
additional payments to the Fund by defendant participants,
subsequent to the payment by defendant participants of the
maximum aggregate payment obligation in section 202(a)(2), as
provided in this subsection.
(2) Contingent call payments.--If the Administrator has
certified or certifies the necessity of additional payments as
provided in paragraph (3), the Administrator may require the
defendant participants to pay in accordance with paragraph (5)
up to an aggregate maximum of $10,000,000,000 of additional
payments subsequent to the payment by defendant participants of
the maximum aggregate payment obligation in section 202(a)(2).
(3) Contingent call certification.--
(A) In general.--Before invoking the authority to
require additional mandatory payments under this
subsection, the Administrator shall certify, after
consultation with appropriate experts, that the
entirety of the contingent call amount invoked is
necessary to meet the Fund's obligations.
(B) Initial notice.--Before making any
certification under subparagraph (A), the Administrator
shall publish a notice in the Federal Register of the
proposed certification, including a description and
explanation of the Administrator's analysis supporting
the certification of the Administrator.
(C) Comments from defendant participants.--Not
later than 60 days after the publication of the notice
under subparagraph (B), a defendant participant may
provide the Administrator with additional information
to support a determination that all or some of the
additional payments from defendant participants set
forth in the notice are or are not required.
(D) Final certification.--
(i) In general.--The Administrator shall
publish a final notice in the Federal Register
after consideration of all comments submitted
under subparagraph (C).
(ii) Written notice.--If the Administrator
certifies the need for the contingent call for
additional payments, the Administrator shall
provide each defendant participant with written
notice of that defendant participant's schedule
of payments under this subsection.
(4) Borrowing capacity.--To the extent provided in section
221(b)(3), the Administrator may borrow against the mandatory
additional payments required under this subsection at any time
after issuing the final certification under paragraph (3).
(5) Allocation.--Any additional payments to the Fund by
defendant participants under this subsection shall be allocated
among them in proportion to the amounts provided under sections
202 and 203 (as modified by subsections (b), (d), (f), and (g)
of this section). If the Administrator determines that the full
amount of funding that would otherwise be generated in any year
by the funding provisions of sections 202, 203, and 204 is not
required for purposes of this subsection, the Administrator
shall reduce the amounts paid by all defendant participants on
the same basis.
(6) Enforcement.--The additional payments required under
this subsection may be enforced in the same manner and to the
same extent as the enforcement of payments under section 223.
Subtitle B--Asbestos Insurers Commission
SEC. 210. DEFINITION.
In this subtitle, the term ``captive insurance company'' means a
company--
(1) whose entire beneficial interest is owned on the date
of enactment of this Act, directly or indirectly, by a
defendant participant or by the ultimate parent or the
affiliated group of a defendant participant;
(2) whose primary commercial business during the period
from calendar years 1940 through 1986 was to provide insurance
to its ultimate parent or affiliated group, or any portion of
the affiliated group or a combination thereof; and
(3) that was incorporated or operating no later than
December 31, 2002.
SEC. 211. ESTABLISHMENT OF ASBESTOS INSURERS COMMISSION.
(a) Establishment.--There is established the Asbestos Insurers
Commission (referred to in this subtitle as the ``Commission'') to
carry out the duties described in section 212.
(b) Membership.--
(1) Appointment.--The Commission shall be composed of 5
members who shall be appointed by the President, by and with
the advice and consent of the Senate.
(2) Qualifications.--
(A) Expertise.--Members of the Commission shall
have sufficient expertise to fulfill their
responsibilities under this subtitle.
(B) Conflict of interest.--
(i) In general.--No member of the
Commission appointed under paragraph (1) may be
an employee or immediate family member of an
employee of an insurer participant. No member
of the Commission may be a former employee or
shareholder of any insurer participant, unless
that is fully disclosed.
(ii) Definition.--In clause (i), the term
``shareholder'' shall not include a broadly
based mutual fund that may, from time-to-time
include the stocks of insurer participants as a
portion of its overall holdings.
(C) Federal employment.--A member of the Commission
may not be an officer or employee of the Federal
Government, except by reason of membership on the
Commission.
(3) Period of appointment.--Members shall be appointed for
the life of the Commission.
(4) Vacancies.--Any vacancy in the Commission shall be
filled in the same manner as the original appointment.
(5) Chairman.--The President shall select a Chairman from
among its members.
(c) Meetings.--
(1) Initial meeting.--Not later than 30 days after the date
on which all members of the Commission have been appointed, the
Commission shall hold its first meeting.
(2) Subsequent meetings.--The Commission shall meet at the
call of the Chairman as necessary to accomplish the duties
under section 212.
(3) Quorum.--No business may be conducted or hearings held
without the participation of a majority of the members of the
Commission.
SEC. 212. DUTIES OF ASBESTOS INSURERS COMMISSION.
(a) Determination of Insurer Payment Obligations.--
(1) In general.--
(A) Definitions.--For the purposes of this Act, the
terms ``insurer'' and ``insurer participant'' shall,
unless stated otherwise, include direct insurers and
reinsurers, as well as any run-off entity established,
in whole or in part, to review and pay asbestos claims.
(B) Procedures for determining insurer payments.--
The Commission shall determine the amount that each
insurer participant shall be required to pay into the
Fund under the procedures described in this section.
The Commission shall make this determination by first
promulgating a rule establishing a methodology for
allocation of payments among insurer participants and
then applying such methodology to determine the
individual payment for each insurer participant. The
methodology may include 1 or more allocation formulas
to be applied to all insurer participants or groups of
similarly situated participants. The Commission's rule
shall include a methodology for adjusting payments by
insurer participants to make up, during any applicable
payment year, any amount by which aggregate insurer
payments fall below the level required in paragraph
(3)(C). Under this procedure, not later than 120 days
after the initial meeting of the Commission, the
Commission shall commence a rulemaking proceeding under
section 213(a) to propose and adopt a methodology for
allocating payments among insurer participants. In
proposing an allocation methodology, the Commission may
consult with such actuaries and other experts as it
deems appropriate. After hearings and public comment on
the proposed allocation methodology, the Commission
shall as promptly as possible promulgate a final rule
establishing such methodology. After promulgation of
the final rule, the Commission shall determine the
individual payment of each insurer participant under
the procedures set forth in subsection (b).
(C) Scope.--Every insurer, reinsurer, and runoff
entity with asbestos-related obligations in the United
States shall be subject to the Commission's and
Administrator's authority under this Act, including
allocation determinations, and shall be required to
fulfill its payment obligation without regard as to
whether it is licensed in the United States. Every
insurer participant not licensed or domiciled in the
United States shall, upon the first payment to the
Fund, submit a written consent to the Commission's and
Administrator's authority under this Act, and to the
jurisdiction of the courts of the United States for
purposes of enforcing this Act, in a form determined by
the Administrator. Any insurer participant refusing to
provide a written consent shall be subject to fines and
penalties as provided in section 223.
(2) Amount of payments.--
(A) Aggregate payment obligation.--The total
payment required of all insurer participants over the
life of the Fund shall be equal to $46,025,000,000.
(B) Accounting standards.--In determining the
payment obligations of participants that are not
licensed or domiciled in the United States or that are
runoff entities, the Commission shall use accounting
standards required for United States licensed direct
insurers.
(C) Captive insurance companies.--No payment to the
Fund shall be required from a captive insurance
company, unless and only to the extent a captive
insurance company, on the date of enactment of this
Act, has liability, directly or indirectly, for any
asbestos claim of a person or persons other than and
unaffiliated with its ultimate parent or affiliated
group or pool in which the ultimate parent participates
or participated, or unaffiliated with a person that was
its ultimate parent or a member of its affiliated group
or pool at the time the relevant insurance or
reinsurance was issued by the captive insurance
company.
(D) Several liability.--Unless otherwise provided
under this Act, each insurer participant's obligation
to make payments to the Fund is several. Unless
otherwise provided under this Act, there is no joint
liability and the future insolvency by any insurer
participant shall not affect the payment required of
any other insurer participant.
(3) Payment criteria.--
(A) Inclusion in insurer participant category.--
Insurers that have paid, or been assessed by a legal
judgment or settlement, at least $1,000,000 in defense
and indemnity costs before the date of enactment of
this Act in response to claims for compensation for
asbestos injuries arising from a policy of liability
insurance or contract of liability reinsurance or
retrocessional reinsurance shall be insurer
participants in the Fund. Other insurers shall be
exempt from mandatory payments.
(B) Insurer participant allocation methodology.--
(i) In general.--The Commission shall
establish the payment obligations of individual
insurer participants to reflect, on an
equitable basis, the relative tort system
liability of the participating insurers in the
absence of this Act, considering and weighting,
as appropriate (but exclusive of workers'
compensation), such factors as--
(I) historic premium for lines of
insurance associated with asbestos
exposure over relevant periods of time;
(II) recent loss experience for
asbestos liability;
(III) amounts reserved for asbestos
liability;
(IV) the likely cost to each
insurer participant of its future
liabilities under applicable insurance
policies; and
(V) any other factor the Commission
may determine is relevant and
appropriate.
(ii) Determination of reserves.--The
Commission may establish procedures and
standards for determination of the asbestos
reserves of insurer participants. The reserves
of a United States licensed reinsurer that is
wholly owned by, or under common control of, a
United States licensed direct insurer shall be
included as part of the direct insurer's
reserves when the reinsurer's financial results
are included as part of the direct insurer's
United States operations, as reflected in
footnote 33 of its filings with the National
Association of Insurance Commissioners or in
published financial statements prepared in
accordance with generally accepted accounting
principles.
(C) Payment schedule.--The aggregate annual amount
of payments by insurer participants over the life of
the Fund shall be as follows:
(i) For year 1, $2,700,000,000.
(ii) For year 2, $2,700,000,000.
(iii) For year 3 through 5, $5,075,000,000
annually.
(iv) For years 6 through 17, $1,625,000,000
annually.
(v) For years 18 through 21, $1,350,000,000
annually.
(vi) For years 22 through 26,
$1,080,000,000 annually.
(vii) For year 27, $100,000,000.
(D) Certain runoff entities.--
(i) In general.--Whenever the Commission
requires payments by a runoff entity that has
assumed asbestos-related liabilities from a
Lloyds syndicate or names that are members of
such a syndicate, the Commission shall not
require payments from such syndicates and names
to the extent that the runoff entity makes its
required payments. In addition, such syndicates
and names shall be required to make payments to
the Fund in the amount of any adjustment
granted to the runoff entity for severe
financial hardship or exceptional
circumstances.
(ii) Included runoff entities.--Subject to
clause (i), a runoff entity shall include any
direct insurer or reinsurer whose asbestos
liability reserves have been transferred,
directly or indirectly, to the runoff entity
and on whose behalf the runoff entity handles
or adjusts and, where appropriate, pays
asbestos claims.
(E) Financial hardship and exceptional circumstance
adjustments.--
(i) In general.--Under the procedures
established in subsection (b), an insurer
participant may seek adjustment of the amount
of its payments based on exceptional
circumstances or severe financial hardship.
(ii) Financial adjustments.--An insurer
participant may qualify for an adjustment based
on severe financial hardship by demonstrating
that payment of the amounts required by the
Commission's methodology would jeopardize the
solvency of such participant.
(iii) Exceptional circumstance
adjustment.--An insurer participant may qualify
for an adjustment based on exceptional
circumstances by demonstrating--
(I) that the amount of its payments
under the Commission's allocation
methodology is exceptionally
inequitable when measured against the
amount of the likely cost to the
participant of its future liability in
the tort system in the absence of the
Fund;
(II) an offset credit as described
in subsection (b)(4) (A) and (C); or
(III) other exceptional
circumstances.
The Commission may determine whether to grant
an adjustment and the size of any such
adjustment, but adjustments shall not reduce
the aggregate payment obligations of insurer
participants specified in paragraph (2)(A) and
(3)(C).
(iv) Time period of adjustment.--Except for
adjustments for offset credits, adjustments
granted under this subsection shall have a term
not to exceed 3 years. An insurer participant
may renew its adjustment by demonstrating to
the Administrator that it remains justified.
(b) Procedure for Notifying Insurer Participants of Individual
Payment Obligations.--
(1) Notice to participants.--Not later than 30 days after
promulgation of the final rule establishing an allocation
methodology under subsection (a)(1), the Commission shall--
(A) directly notify all reasonably identifiable
insurer participants of the requirement to submit
information necessary to calculate the amount of any
required payment to the Fund under the allocation
methodology; and
(B) publish in the Federal Register a notice
requiring any person who may be an insurer participant
(as determined by criteria outlined in the notice) to
submit such information.
(2) Response required by individual insurer participants.--
(A) In general.--Any person who receives notice
under paragraph (1)(A), and any other person meeting
the criteria specified in the notice published under
paragraph (1)(B), shall respond by providing the
Commission with all the information requested in the
notice under a schedule or by a date established by the
Commission.
(B) Certification.--The response submitted under
subparagraph (A) shall be signed by a responsible
corporate officer, general partner, proprietor, or
individual of similar authority, who shall certify
under penalty of law the completeness and accuracy of
the information submitted.
(3) Notice to insurer participants of initial payment
determination.--
(A) In general.--Within 120 days after receipt of
the information required by paragraph (2), the
Commission shall send each insurer participant a notice
of initial determination requiring payments to the
Fund, which shall be based on the information received
from the participant in response to the Commission's
request for information. An insurer participant's
payments shall be payable over the schedule established
in subsection (a)(3)(C), in annual amounts
proportionate to the aggregate annual amount of
payments for all insurer participants for the
applicable year.
(B) No response; incomplete response.--If no
response is received from an insurer participant, or if
the response is incomplete, the initial determination
requiring a payment from the insurer participant shall
be based on the best information available to the
Commission.
(4) Commission review, revision and finalization of initial
payment determinations.--
(A) Comments from insurer participants.--Not later
than 30 days after receiving a notice of initial
determination from the Commission, an insurer
participant may provide the Commission with additional
information to support limited adjustments to the
required payments to reflect severe financial hardship
or exceptional circumstances, including the provision
of an offset credit for an insurer participant for the
amount of any asbestos-related payments it made or was
legally obligated to make, including payments released
from an escrow, as the result of a bankruptcy
judicially confirmed after May 22, 2003, but before the
date of enactment of this Act.
(B) Additional participants.--If, before the final
determination of the Commission, the Commission
receives information that an additional person may
qualify as an insurer participant, the Commission shall
require such person to submit information necessary to
determine whether payments from that person should be
required, in accordance with the requirements of this
subsection.
(C) Revision procedures.--The Commission shall
adopt procedures for revising initial payments based on
information received under subparagraphs (A) and (B),
including a provision requiring an offset credit for an
insurer participant for the amount of any asbestos-
related payments it made or was legally obligated to
make, including payments released from an escrow, as
the result of a bankruptcy confirmed after May 22,
2003, but before the date of enactment of this Act.
(5) Examinations and subpoenas.--
(A) Examinations.--The Commission may conduct
examinations of the books and records of insurer
participants to determine the completeness and accuracy
of information submitted, or required to be submitted,
to the Commission for purposes of determining
participant payments.
(B) Subpoenas.--The Commission may request the
Attorney General to subpoena persons to compel
testimony, records, and other information relevant to
its responsibilities under this section. The Attorney
General may enforce such subpoena in appropriate
proceedings in the United States district court for the
district in which the person to whom the subpoena was
addressed resides, was served, or transacts business.
(6) Escrow payments.--Without regard to an insurer
participant's payment obligation under this section, any escrow
or similar account established before the enactment of this Act
by an insurer participant in connection with an asbestos trust
fund that has not been judicially confirmed by final order by
the date of enactment of this Act shall be the property of the
insurer participant and returned to that insurer participant.
(7) Notice to insurer participants of final payment
determinations.--Not later than 60 days after the notice of
initial determination is sent to the insurer participants, the
Commission shall send each insurer participant a notice of
final determination.
(c) Insurer Participants Voluntary Allocation Agreement.--
(1) In general.--Not later than 30 days after the
Commission proposes its rule establishing an allocation
methodology under subsection (a)(1), direct insurer
participants licensed or domiciled in the United States, other
direct insurer participants, reinsurer participants licensed or
domiciled in the United States, or other reinsurer
participants, may submit an allocation agreement, approved by
all of the participants in the applicable group, to--
(A) the Commission;
(B) the Committee on the Judiciary of the Senate;
and
(C) the Committee on the Judiciary of the House of
Representatives.
(2) Allocation agreement.--To the extent the participants
in any such applicable group voluntarily agree upon an
allocation arrangement, any such allocation agreement shall
only govern the allocation of payments within that group and
shall not determine the aggregate amount due from that group.
(3) Certification.--The Commission shall determine whether
an allocation agreement submitted under subparagraph (A) meets
the requirements of this subtitle and, if so, shall certify the
agreement as establishing the allocation methodology governing
the individual payment obligations of the participants who are
parties to the agreement. The authority of the Commission under
this subtitle shall, with respect to participants who are
parties to a certified allocation agreement, terminate on the
day after the Commission certifies such agreement. Under
subsection (f), the Administrator shall assume responsibility,
if necessary, for calculating the individual payment
obligations of participants who are parties to the certified
agreement.
(d) Commission Report.--
(1) Recipients.--Until the work of the Commission has been
completed and the Commission terminated, the Commission shall
submit an annual report, containing the information described
under paragraph (2), to--
(A) the Committee on the Judiciary of the Senate;
(B) the Committee on the Judiciary of the House of
Representatives; and
(C) the Administrator.
(2) Contents.--The report under paragraph (1) shall state
the amount that each insurer participant is required to pay to
the Fund, including the payment schedule for such payments.
(e) Interim Payments.--
(1) Authority of administrator.--During the period between
the date of enactment of this Act and the date when the
Commission issues its final determinations of payments, the
Administrator shall have the authority to require insurer
participants to make interim payments to the Fund to assure
adequate funding by insurer participants during such period.
(2) Amount of interim payments.--During any applicable
year, the Administrator may require insurer participants to
make aggregate interim payments not to exceed the annual
aggregate amount specified in subsection (a)(3)(C).
(3) Allocation of payments.--Interim payments shall be
allocated among individual insurer participants on an equitable
basis as determined by the Administrator. All payments required
under this subparagraph shall be credited against the
participant's ultimate payment obligation to the Fund
established by the Commission. If an interim payment exceeds
the ultimate payment, the Fund shall pay interest on the amount
of the overpayment at a rate determined by the Administrator.
If the ultimate payment exceeds the interim payment, the
participant shall pay interest on the amount of the
underpayment at the same rate. Any participant may seek an
exemption from or reduction in any payment required under this
subsection under the financial hardship and exceptional
circumstance standards established in subsection (a)(3)(D).
(4) Appeal of interim payment decisions.--A decision by the
Administrator to establish an interim payment obligation shall
be considered final agency action and reviewable under section
303, except that the reviewing court may not stay an interim
payment during the pendency of the appeal.
(f) Transfer of Authority From the Commission to the
Administrator.--
(1) In general.--Upon termination of the Commission under
section 215, the Administrator shall assume all the
responsibilities and authority of the Commission, except that
the Administrator shall not have the power to modify the
allocation methodology established by the Commission or by
certified agreement or to promulgate a rule establishing any
such methodology.
(2) Financial hardship and exceptional circumstance
adjustments.--Upon termination of the Commission under section
215, the Administrator shall have the authority, upon
application by any insurer participant, to make adjustments to
annual payments upon the same grounds as provided in subsection
(a)(3)(D). Adjustments granted under this subsection shall have
a term not to exceed 3 years. An insurer participant may renew
its adjustment by demonstrating that it remains justified. Upon
the grant of any adjustment, the Administrator shall increase
the payments required of all other insurer participants so that
there is no reduction in the aggregate payment required of all
insurer participants for the applicable years. The increase in
an insurer participant's required payment shall be in
proportion to such participant's share of the aggregate payment
obligation of all insurer participants.
(3) Financial security requirements.--Whenever an insurer
participant's A.M. Best's claims payment rating or Standard and
Poor's financial strength rating falls below A-, and until such
time as either the insurer participant's A.M. Best's Rating or
Standard and Poor's rating is equal to or greater than A-, the
Administrator shall have the authority to require that the
participating insurer either--
(A) pay the present value of its remaining Fund
payments at a discount rate determined by the
Administrator; or
(B) provide an evergreen letter of credit or
financial guarantee for future payments issued by an
institution with an A.M. Best's claims payment rating
or Standard & Poor's financial strength rating of at
least A+.
(g) Judicial Review.--The Commission's rule establishing an
allocation methodology, its final determinations of payment obligations
and other final action shall be judicially reviewable as provided in
title III.
SEC. 213. POWERS OF ASBESTOS INSURERS COMMISSION.
(a) Rulemaking.--The Commission shall promulgate such rules and
regulations as necessary to implement its authority under this Act,
including regulations governing an allocation methodology. Such rules
and regulations shall be promulgated after providing interested parties
with the opportunity for notice and comment.
(b) Hearings.--The Commission may hold such hearings, sit and act
at such times and places, take such testimony, and receive such
evidence as the Commission considers advisable to carry out this Act.
The Commission shall also hold a hearing on any proposed regulation
establishing an allocation methodology, before the Commission's
adoption of a final regulation.
(c) Information From Federal Agencies.--The Commission may secure
directly from any Federal department or agency such information as the
Commission considers necessary to carry out this Act. Upon request of
the Chairman of the Commission, the head of such department or agency
shall furnish such information to the Commission.
(d) Postal Services.--The Commission may use the United States
mails in the same manner and under the same conditions as other
departments and agencies of the Federal Government.
(e) Gifts.--The Commission may not accept, use, or dispose of gifts
or donations of services or property.
(f) Expert Advice.--In carrying out its responsibilities, the
Commission may enter into such contracts and agreements as the
Commission determines necessary to obtain expert advice and analysis.
SEC. 214. PERSONNEL MATTERS.
(a) Compensation of Members.--Each member of the Commission shall
be compensated at a rate equal to the daily equivalent of the annual
rate of basic pay prescribed for level IV of the Executive Schedule
under section 5315 of title 5, United States Code, for each day
(including travel time) during which such member is engaged in the
performance of the duties of the Commission.
(b) Travel Expenses.--The members of the Commission shall be
allowed travel expenses, including per diem in lieu of subsistence, at
rates authorized for employees of agencies under subchapter I of
chapter 57 of title 5, United States Code, while away from their homes
or regular places of business in the performance of services for the
Commission.
(c) Staff.--
(1) In general.--The Chairman of the Commission may,
without regard to the civil service laws and regulations,
appoint and terminate an executive director and such other
additional personnel as may be necessary to enable the
Commission to perform its duties. The employment of an
executive director shall be subject to confirmation by the
Commission.
(2) Compensation.--The Chairman of the Commission may fix
the compensation of the executive director and other personnel
without regard to chapter 51 and subchapter III of chapter 53
of title 5, United States Code, relating to classification of
positions and General Schedule pay rates, except that the rate
of pay for the executive director and other personnel may not
exceed the rate payable for level V of the Executive Schedule
under section 5316 of such title.
(d) Detail of Government Employees.--Any Federal Government
employee may be detailed to the Commission without reimbursement, and
such detail shall be without interruption or loss of civil service
status or privilege.
(e) Procurement of Temporary and Intermittent Services.--The
Chairman of the Commission may procure temporary and intermittent
services under section 3109(b) of title 5, United States Code, at rates
for individuals which do not exceed the daily equivalent of the annual
rate of basic pay prescribed for level V of the Executive Schedule
under section 5316 of such title.
SEC. 215. TERMINATION OF ASBESTOS INSURERS COMMISSION.
The Commission shall terminate 90 days after the last date on which
the Commission makes a final determination of contribution under
section 212(b) or 90 days after the last appeal of any final action by
the Commission is exhausted, whichever occurs later.
SEC. 216. EXPENSES AND COSTS OF COMMISSION.
All expenses of the Commission shall be paid from the Fund.
Subtitle C--Asbestos Injury Claims Resolution Fund
SEC. 221. ESTABLISHMENT OF ASBESTOS INJURY CLAIMS RESOLUTION FUND.
(a) Establishment.--There is established in the Office of Asbestos
Disease Compensation the Asbestos Injury Claims Resolution Fund, which
shall be available to pay--
(1) claims for awards for an eligible disease or condition
determined under title I;
(2) claims for reimbursement for medical monitoring
determined under title I;
(3) principal and interest on borrowings under subsection
(b); and
(4) administrative expenses to carry out the provisions of
this Act.
(b) Borrowing Authority.--
(1) In general.--The Administrator is authorized to borrow
from time-to-time amounts as set forth in this subsection, for
purposes of enhancing liquidity available to the Fund for
carrying out the obligations of the Fund under this Act. The
Administrator may authorize borrowing in such form, over such
term, with such necessary disclosure to its lenders as will
most efficiently enhance the Fund's liquidity.
(2) Federal financing bank.--In addition to the general
authority in paragraph (1), the Administrator may borrow from
the Federal Financing Bank in accordance with section 6 of the
Federal Financing Bank Act of 1973 (12 U.S.C. 2285) as needed
for performance of the Administrator's duties under this Act
for the first 2 years.
(3) Borrowing capacity.--The maximum amount that may be
borrowed under this subsection at any given time is the amount
that, taking into account all payment obligations related to
all previous amounts borrowed in accordance with this
subsection and all committed obligations of the Fund at the
time of borrowing, can be repaid in full (with interest) in a
timely fashion from--
(A) the available assets of the Fund as of the time
of borrowing; and
(B) all amounts expected to be paid by participants
(including any contingent call mandatory additional
payments under section 204(m)) during the subsequent 7
years.
(4) Repayment obligations.--Repayment of monies borrowed by
the Administrator under this subsection is limited solely to
amounts available in the Asbestos Injury Claims Resolution Fund
established under this section.
(c) Lockbox for Severe Asbestos-Related Injury Claimants.--
(1) In general.--Within the Fund, the Administrator shall
establish the following accounts:
(A) A Mesothelioma Account, which shall be used
solely to make payments to claimants eligible for an
award under the criteria of Level X.
(B) A Lung Cancer Account, which shall be used
solely to make payments to claimants eligible for an
award under the criteria of Level IX.
(C) A Severe Asbestosis Account, which shall be
used solely to make payments to claimants eligible for
an award under the criteria of Level V.
(D) A Moderate Asbestosis Account, which shall be
used solely to make payments to claimants eligible for
an award under the criteria of Level IV.
(2) Allocation.--The Administrator shall allocate to each
of the 4 accounts established under paragraph (1) a portion of
payments made to the Fund adequate to compensate all
anticipated claimants for each account. Within 60 days after
the date of enactment of this Act, and periodically during the
life of the Fund, the Administrator shall determine an
appropriate amount to allocate to each account after consulting
appropriate epidemiological and statistical studies.
(d) Audit Authority.--
(1) In general.--For the purpose of ascertaining the
correctness of any information provided or payments made to the
Fund, or determining whether a person who has not made a
payment to the Fund was required to do so, or determining the
liability of any person for a payment to the Fund, or
collecting any such liability, or inquiring into any offense
connected with the administration or enforcement of this title,
the Administrator is authorized--
(A) to examine any books, papers, records or other
data which may be relevant or material to such inquiry;
(B) to summon the person liable for a payment under
this title, or officer or employee of such person, or
any person having possession, custody, or care of books
of account containing entries relating to the business
of the person liable or any other person the
Administrator may deem proper, to appear before the
Administrator at a time and place named in the summons
and to produce such books, papers, records, or other
data, and to give such testimony, under oath, as may be
relevant or material to such inquiry; and
(C) to take such testimony of the person concerned,
under oath, as may be relevant or material to such
inquiry.
(2) False, fraudulent, or fictitious statements or
practices.--If the Administrator determines that materially
false, fraudulent, or fictitious statements or practices have
been submitted or engaged in by persons submitting information
to the Administrator or to the Asbestos Insurers Commission or
any other person who provides evidence in support of such
submissions for purposes of determining payment obligations
under this Act, the Administrator may impose a civil penalty
not to exceed $10,000 on any person found to have submitted or
engaged in a materially false, fraudulent, or fictitious
statement or practice under this Act. The Administrator shall
promulgate appropriate regulations to implement this paragraph.
(e) No Private Right of Action.--Except as provided in sections
203(b)(2)(D)(ii) and 204(f)(3), there shall be no private right of
action under any Federal or State law against any participant based on
a claim of compliance or noncompliance with this Act or the involvement
of any participant in the enactment of this Act.
SEC. 222. MANAGEMENT OF THE FUND.
(a) In General.--Amounts in the Fund shall be held for the
exclusive purpose of providing benefits to asbestos claimants and their
beneficiaries, including those provided in subsection (c), and to
otherwise defray the reasonable expenses of administering the Fund.
(b) Investments.--
(1) In general.--Amounts in the Fund shall be administered
and invested with the care, skill, prudence, and diligence,
under the circumstances prevailing at the time of such
investment, that a prudent person acting in a like capacity and
manner would use.
(2) Strategy.--The Administrator shall invest amounts in
the Fund in a manner that enables the Fund to make current and
future distributions to or for the benefit of asbestos
claimants. In pursuing an investment strategy under this
subparagraph, the Administrator shall consider, to the extent
relevant to an investment decision or action--
(A) the size of the Fund;
(B) the nature and estimated duration of the Fund;
(C) the liquidity and distribution requirements of
the Fund;
(D) general economic conditions at the time of the
investment;
(E) the possible effect of inflation or deflation
on Fund assets;
(F) the role that each investment or course of
action plays with respect to the overall assets of the
Fund;
(G) the expected amount to be earned (including
both income and appreciation of capital) through
investment of amounts in the Fund; and
(H) the needs of asbestos claimants for current and
future distributions authorized under this Act.
(c) Mesothelioma Research and Treatment Centers.--
(1) In general.--The Administrator shall provide $1,000,000
from the Fund for each of fiscal years 2004 through 2008 for
each of up to 10 mesothelioma disease research and treatment
centers.
(2) Requirements.--The Centers shall--
(A) be chosen by the Director of the National
Institutes of Health;
(B) be chosen through competitive peer review;
(C) be geographically distributed throughout the
United States with special consideration given to areas
of high incidence of mesothelioma disease;
(D) be closely associated with Department of
Veterans Affairs medical centers to provide research
benefits and care to veterans, who have suffered
excessively from mesothelioma;
(E) be engaged in research to provide mechanisms
for detection and prevention of mesothelioma,
particularly in the areas of pain management and cures;
(F) be engaged in public education about
mesothelioma and prevention, screening, and treatment;
(G) be participants in the National Mesothelioma
Registry; and
(H) be coordinated in their research and treatment
efforts with other Centers and institutions involved in
exemplary mesothelioma research.
SEC. 223. ENFORCEMENT OF PAYMENT OBLIGATIONS.
(a) Default.--If any participant fails to make any payment in the
amount of and according to the schedule under this Act or as prescribed
by the Administrator, after demand and 30 days opportunity to cure the
default, there shall be a lien in favor of the United States for the
amount of the delinquent payment (including interest) upon all property
and rights to property, whether real or personal, belonging to such
participant.
(b) Bankruptcy.--In the case of a bankruptcy or insolvency
proceeding, the lien imposed under subsection (a) shall be treated in
the same manner as a lien for taxes due and owing to the United States
for purposes of the provisions of title 11, United States Code, or
section 3713(a) of title 31, United States Code. The United States
Bankruptcy Court shall have jurisdiction over any issue or controversy
regarding lien priority and lien perfection arising in a bankruptcy
case due to a lien imposed under subsection (a).
(c) Civil Action.--
(1) In general.--In any case in which there has been a
refusal or failure to pay any liability imposed under this Act,
the Administrator may bring a civil action in the United States
District Court for the District of Columbia, or any other
appropriate lawsuit or proceeding outside of the United
States--
(A) to enforce the liability and any lien of the
United States imposed under this section;
(B) to subject any property of the participant,
including any property in which the participant has any
right, title, or interest, to the payment of such
liability; or
(C) for temporary, preliminary, or permanent
relief.
(2) Additional penalties.--In any action under paragraph
(1) in which the refusal or failure to pay was willful, the
Administrator may seek recovery--
(A) of punitive damages;
(B) of the costs of any civil action under this
subsection, including reasonable fees incurred for
collection, expert witnesses, and attorney's fees; and
(C) in addition to any other penalty, of a fine
equal to the total amount of the liability that has not
been collected.
(d) Enforcement Authority as to Insurer Participants.--
(1) In general.--In addition to or in lieu of the
enforcement remedies described in subsection (c), the
Administrator may seek to recover amounts in satisfaction of a
payment not timely paid by an insurer participant under the
procedures under this subsection.
(2) Subrogation.--To the extent required to establish
personal jurisdiction over nonpaying insurer participants, the
Administrator shall be deemed to be subrogated to the
contractual rights of participants to seek recovery from
nonpaying insuring participants that are domiciled outside the
United States under the policies of liability insurance or
contracts of liability reinsurance or retrocessional
reinsurance applicable to asbestos claims, and the
Administrator may bring an action or an arbitration against the
nonpaying insurer participants under the provisions of such
policies and contracts, provided that--
(A) any amounts collected under this subsection
shall not increase the amount of deemed erosion
allocated to any policy or contract under section 404,
or otherwise reduce coverage available to a
participant; and
(B) subrogation under this subsection shall have no
effect on the validity of the insurance policies or
reinsurance, and any contrary State law is expressly
preempted.
(3) Recoverability of contribution.--For purposes of this
subsection--
(A) all contributions to the Fund required of a
participant shall be deemed to be sums legally required
to be paid for bodily injury resulting from exposure to
asbestos;
(B) all contributions to the Fund required of any
participant shall be deemed to be a single loss arising
from a single occurrence under each contract to which
the Administrator is subrogated; and
(C) with respect to reinsurance contracts, all
contributions to the Fund required of a participant
shall be deemed to be payments to a single claimant for
a single loss.
(4) No credit or offset.--In any action brought under this
subsection, the nonpaying insurer or reinsurer shall be
entitled to no credit or offset for amounts collectible or
potentially collectible from any participant nor shall such
defaulting participant have any right to collect any sums
payable under this section from any participant.
(5) Cooperation.--Insureds and cedents shall cooperate with
the Administrator's reasonable requests for assistance in any
such proceeding. The positions taken or statements made by the
Administrator in any such proceeding shall not be binding on or
attributed to the insureds or cedents in any other proceeding.
The outcome of such a proceeding shall not have a preclusive
effect on the insureds or cedents in any other proceeding and
shall not be admissible against any subrogee under this
section. The Administrator shall have the authority to settle
or compromise any claims against a nonpaying insurer
participant under this subsection.
(e) Bar on United States Business.--If any direct insurer or
reinsurer refuses to furnish any information requested by or to pay any
contribution required by this Act, then, in addition to any other
penalties imposed by this Act, the Administrator may issue an order
barring such entity and its affiliates from insuring risks located
within the United States or otherwise doing business within the United
States. Insurer participants or their affiliates seeking to obtain a
license from any State to write any type of insurance shall be barred
from obtaining any such license until payment of all contributions
required as of the date of license application.
(f) Credit for Reinsurance.--If the Administrator determines that
an insurer participant that is a reinsurer is in default in paying any
required contribution or otherwise not in compliance with this Act, the
Administrator may issue an order barring any direct insurer participant
from receiving credit for reinsurance purchased from the defaulting
reinsurer. Any State law governing credit for reinsurance to the
contrary is preempted.
(g) Defense Limitation.--In any proceeding under this section, the
participant shall be barred from bringing any challenge to any
determination of the Administrator or the Asbestos Insurers Commission
regarding its liability under this Act, or to the constitutionality of
this Act or any provision thereof, if such challenge could have been
made during the review provided under section 204(i)(10), or in a
judicial review proceeding under section 303.
(h) Deposit of Funds.--
(1) In general.--Any funds collected under subsection
(c)(2) (A) or (C) shall be--
(A) deposited in the Fund; and
(B) used only to pay--
(i) claims for awards for an eligible
disease or condition determined under title I;
or
(ii) claims for reimbursement for medical
monitoring determined under title I.
(2) No effect on other liabilities.--The imposition of a
fine under subsection (c)(2)(C) shall have no effect on--
(A) the assessment of contributions under subtitles
A and B; or
(B) any other provision of this Act.
(i) Property of the Estate.--Section 541(b) of title 11, United
States Code, is amended--
(1) in paragraph (4)(B)(ii), by striking ``or'' at the end;
(2) in paragraph (5), by striking ``prohibition.'' and
inserting ``prohibition; or''; and
(3) by inserting after paragraph (5) and before the last
undesignated sentence the following:
``(6) the value of any pending claim against or the amount
of an award granted from the Asbestos Injury Claims Resolution
Fund established under the Fairness in Asbestos Injury
Resolution Act of 2005.''.
SEC. 224. INTEREST ON UNDERPAYMENT OR NONPAYMENT.
If any amount of payment obligation under this title is not paid on
or before the last date prescribed for payment, the liable party shall
pay interest on such amount at the Federal short-term rate determined
under section 6621(b) of the Internal Revenue Code of 1986, plus 5
percentage points, for the period from such last date to the date paid.
TITLE III--JUDICIAL REVIEW
SEC. 301. JUDICIAL REVIEW OF RULES AND REGULATIONS.
(a) Exclusive Jurisdiction.--The United States Court of Appeals for
the District of Columbia Circuit shall have exclusive jurisdiction over
any action to review rules or regulations promulgated by the
Administrator or the Asbestos Insurers Commission under this Act.
(b) Period for Filing Petition.--A petition for review under this
section shall be filed not later than 60 days after the date notice of
such promulgation appears in the Federal Register.
SEC. 302. JUDICIAL REVIEW OF AWARD DECISIONS.
(a) In General.--Any claimant adversely affected or aggrieved by a
final decision of the Administrator awarding or denying compensation
under title I may petition for judicial review of such decision. Any
petition for review under this section shall be filed within 90 days of
the issuance of a final decision of the Administrator.
(b) Exclusive Jurisdiction.--A petition for review may only be
filed in the United States Court of Appeals for the circuit in which
the claimant resides at the time of the issuance of the final order.
(c) Standard of Review.--The court shall uphold the decision of the
Administrator unless the court determines, upon review of the record as
a whole, that the decision is not supported by substantial evidence, is
contrary to law, or is not in accordance with procedure required by
law.
SEC. 303. JUDICIAL REVIEW OF PARTICIPANTS' ASSESSMENTS.
(a) Exclusive Jurisdiction.--The United States Court of Appeals for
the District of Columbia Circuit shall have exclusive jurisdiction over
any action to review a final determination by the Administrator or the
Asbestos Insurers Commission regarding the liability of any person to
make a payment to the Fund, including a notice of applicable subtier
assignment under section 204(i), a notice of financial hardship or
inequity determination under section 204(d), and a notice of insurer
participant obligation under section 212(b).
(b) Period for Filing Action.--A petition for review under
subsection (a) shall be filed not later than 60 days after a final
determination by the Administrator or the Commission giving rise to the
action. Any defendant participant who receives a notice of its
applicable subtier under section 204(i) or a notice of financial
hardship or inequity determination under section 204(d) shall commence
any action within 30 days after a decision on rehearing under section
204(i)(10), and any insurer participant who receives a notice of a
payment obligation under section 212(b) shall commence any action
within 30 days after receiving such notice.
SEC. 304. OTHER JUDICIAL CHALLENGES.
(a) Exclusive Jurisdiction.--The United States District Court for
the District of Columbia shall have exclusive jurisdiction over any
action for declaratory or injunctive relieve challenging any provision
of this Act. An action under this section shall be filed not later than
60 days after the date of enactment of this Act or 60 days after the
final action by the Administrator or the Commission giving rise to the
action, whichever is later.
(b) Direct Appeal.--A final decision in the action shall be
reviewable on appeal directly to the Supreme Court of the United
States. Such appeal shall be taken by the filing of a notice of appeal
within 30 days, and the filing of a jurisdictional statement within 60
days, of the entry of the final decision.
(c) Expedited Procedures.--It shall be the duty of the United
States District Court for the District of Columbia and the Supreme
Court of the United States to advance on the docket and to expedite to
the greatest possible extent the disposition of the action and appeal.
SEC. 305. STAYS, EXCLUSIVITY, AND CONSTITUTIONAL REVIEW.
(a) No Stays.--No court may issue a stay of payment by any party
into the Fund pending its final judgment.
(b) Exclusivity of Review.--An action of the Administrator or the
Asbestos Insurers Commission for which review could have been obtained
under section 301, 302, or 303 shall not be subject to judicial review
in any other proceeding.
(c) Constitutional Review.--
(1) In general.--Notwithstanding any other provision of
law, any interlocutory or final judgment, decree, or order of a
Federal court holding this Act, or any provision or application
thereof, unconstitutional shall be reviewable as a matter of
right by direct appeal to the Supreme Court.
(2) Period for filing appeal.--Any such appeal shall be
filed not more than 30 days after entry of such judgment,
decree, or order.
TITLE IV--MISCELLANEOUS PROVISIONS
SEC. 401. FALSE INFORMATION.
(a) In General.--Chapter 63 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 1348. Fraud and false statements in connection with
participation in Asbestos Injury Claims Resolution Fund
``(a) Fraud Relating to Asbestos Injury Claims Resolution Fund.--
Whoever knowingly and willfully executes, or attempts to execute, a
scheme or artifice to defraud the Office of Asbestos Disease
Compensation or the Asbestos Insurers Commission under title II of the
Fairness in Asbestos Injury Resolution Act of 2005 shall be fined under
this title or imprisoned not more than 20 years, or both.
``(b) False Statement Relating to Asbestos Injury Claims Resolution
Fund.--Whoever, in any matter involving the Office of Asbestos Disease
Compensation or the Asbestos Insurers Commission, knowingly and
willfully--
``(1) falsifies, conceals, or covers up by any trick,
scheme, or device a material fact;
``(2) makes any materially false, fictitious, or fraudulent
statements or representations; or
``(3) makes or uses any false writing or document knowing
the same to contain any materially false, fictitious, or
fraudulent statement or entry, in connection with the award of
a claim or the determination of a participant's payment
obligation under title I or II of the Fairness in Asbestos
Injury Resolution Act of 2005 shall be fined under this title
or imprisoned not more than 10 years, or both.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 63 of title 18, United States Code, is amended by adding at the
end the following:
``1348. Fraud and false statements in connection with participation in
Asbestos Injury Claims Resolution Fund.''.
SEC. 402. EFFECT ON BANKRUPTCY LAWS.
(a) No Automatic Stay.--Section 362(b) of title 11, United States
Code, is amended--
(1) in paragraph (17), by striking ``or'' at the end;
(2) in paragraph (18), by striking the period at the end
and inserting ``; or''; and
(3) by inserting after paragraph (18) the following:
``(19) under subsection (a) of this section of the
enforcement of any payment obligations under section 204 of the
Fairness in Asbestos Injury Resolution Act of 2005, against a
debtor, or the property of the estate of a debtor, that is a
participant (as that term is defined in section 3 of that
Act).''.
(b) Assumption of Executory Contract.--Section 365 of title 11,
United States Code, is amended by adding at the end the following:
``(p) If a debtor is a participant (as that term is defined in
section 3 of the Fairness in Asbestos Injury Resolution Act of 2005),
the trustee shall be deemed to have assumed all executory contracts
entered into by the participant under section 204 of that Act. The
trustee may not reject any such executory contract.''.
(c) Allowed Administrative Expenses.--Section 503 of title 11,
United States Code, is amended by adding at the end the following:
``(c)(1) Claims or expenses of the United States, the Attorney
General, or the Administrator (as that term is defined in section 3 of
the Fairness in Asbestos Injury Resolution Act of 2005) based upon the
asbestos payment obligations of a debtor that is a Participant (as that
term is defined in section 3 of that Act), shall be paid as an allowed
administrative expense. The debtor shall not be entitled to either
notice or a hearing with respect to such claims.
``(2) For purposes of paragraph (1), the term `asbestos payment
obligation' means any payment obligation under title II of the Fairness
in Asbestos Injury Resolution Act of 2005.''.
(d) No Discharge.--Section 523 of title 11, United States Code, is
amended by adding at the end the following:
``(f) A discharge under section 727, 1141, 1228, or 1328 of this
title does not discharge any debtor that is a participant (as that term
is defined in section 3 of the Fairness in Asbestos Injury Resolution
Act of 2005) of the debtor's payment obligations assessed against the
participant under title II of that Act.''.
(e) Payment.--Section 524 of title 11, United States Code, is
amended by adding at the end the following:
``(i) Participant Debtors.--
``(1) In general.--Paragraphs (2) and (3) shall apply to a
debtor who--
``(A) is a participant that has made prior asbestos
expenditures (as such terms are defined in the Fairness
in Asbestos Injury Resolution Act of 2005); and
``(B) is subject to a case under this title that is
pending--
``(i) on the date of enactment of the
Fairness in Asbestos Injury Resolution Act of
2005; or
``(ii) at any time during the 1-year period
preceding the date of enactment of that Act.
``(2) Tier i debtors.--A debtor that has been assigned to
Tier I under section 202 of the Fairness in Asbestos Injury
Resolution Act of 2005 shall make payments in accordance with
sections 202 and 203 of that Act.
``(3) Treatment of payment obligations.--All payment
obligations of a debtor under sections 202 and 203 of the
Fairness in Asbestos Injury Resolution Act of 2005 shall--
``(A) constitute costs and expenses of
administration of a case under section 503 of this
title;
``(B) notwithstanding any case pending under this
title, be payable in accordance with section 202 of
that Act;
``(C) not be stayed;
``(D) not be affected as to enforcement or
collection by any stay or injunction of any court; and
``(E) not be impaired or discharged in any current
or future case under this title.''.
(f) Treatment of Trusts.--Section 524 of title 11, United States
Code, as amended by this Act, is amended by adding at the end the
following:
``(j) Asbestos Trusts.--
``(1) In general.--A trust shall assign a portion of the
corpus of the trust to the Asbestos Injury Claims Resolution
Fund (referred to in this subsection as the `Fund') as
established under the Fairness in Asbestos Injury Resolution
Act of 2005 if the trust qualifies as a `trust' under section
201 of that Act.
``(2) Transfer of trust assets.--
``(A) In general.--
``(i) Except as provided under
subparagraphs (B), (C), and (E), the assets in
any trust established to provide compensation
for asbestos claims (as defined in section 3 of
the Fairness in Asbestos Injury Resolution Act
of 2005) shall be transferred to the Fund not
later than 6 months after the date of enactment
of the Fairness in Asbestos Injury Resolution
Act of 2005 or 30 days following funding of a
trust established under a reorganization plan
subject to section 202(c) of that Act. Except
as provided under subparagraph (B), the
Administrator of the Fund shall accept such
assets and utilize them for any purposes of the
Fund under section 221 of such Act, including
the payment of claims for awards under such Act
to beneficiaries of the trust from which the
assets were transferred.
``(ii) Notwithstanding any other provision
of Federal or State law, no liability of any
kind may be imposed on a trustee of a trust for
transferring assets to the Fund in accordance
with clause (i).
``(B) Authority to refuse assets.--The
Administrator of the Fund may refuse to accept any
asset that the Administrator determines may create
liability for the Fund in excess of the value of the
asset.
``(C) Allocation of trust assets.--If a trust under
subparagraph (A) has beneficiaries with claims that are
not asbestos claims, the assets transferred to the Fund
under subparagraph (A) shall not include assets
allocable to such beneficiaries. The trustees of any
such trust shall determine the amount of such trust
assets to be reserved for the continuing operation of
the trust in processing and paying claims that are not
asbestos claims. The trustees shall demonstrate to the
satisfaction of the Administrator, or by clear and
convincing evidence in a proceeding brought before the
United States District Court for the District of
Columbia in accordance with paragraph (4), that the
amount reserved is properly allocable to claims other
than asbestos claims.
``(D) Sale of fund assets.--The investment
requirements under section 222 of the Fairness in
Asbestos Injury Resolution Act of 2005 shall not be
construed to require the Administrator of the Fund to
sell assets transferred to the Fund under subparagraph
(A).
``(E) Liquidated claims.--Except as specifically
provided in this subparagraph, all asbestos claims
against a trust are superseded and preempted as of the
date of enactment of the Fairness in Asbestos Injury
Resolution Act of 2005, and a trust shall not make any
payment relating to asbestos claims after that date.
If, in the ordinary course and the normal and usual
administration of the trust consistent with past
practices, a trust had before the date of enactment of
the Fairness in Asbestos Injury Resolution Act of 2005,
made all determinations necessary to entitle an
individual claimant to a noncontingent cash payment
from the trust, the trust shall (i) make any lump-sum
cash payment due to that claimant, and (ii) make or
provide for all remaining noncontingent payments on any
award being paid or scheduled to be paid on an
installment basis, in each case only to the same extent
that the trust would have made such cash payments in
the ordinary course and consistent with past practices
before enactment of that Act. A trust shall not make
any payment in respect of any alleged contingent right
to recover any greater amount than the trust had
already paid, or had completed all determinations
necessary to pay, to a claimant in cash in accordance
with its ordinary distribution procedures in effect as
of June 1, 2003.
``(3) Injunction.--Any injunction issued as part of the
formation of a trust described in paragraph (1) shall remain in
full force and effect. No court, Federal or State, may enjoin
the transfer of assets by a trust to the Fund in accordance
with this subsection pending resolution of any litigation
challenging such transfer or the validity of this subsection or
of any provision of the Fairness in Asbestos Injury Resolution
Act of 2005, and an interlocutory order denying such relief
shall not be subject to immediate appeal under section 1291(a)
of title 28. Notwithstanding any other provision of law, once
such a transfer has been made, the assets of the Fund shall be
available to satisfy any final judgment entered in such an
action and no longer subject to any appeal or review, (i)
declaring that the transfer effected a taking of a right or
property for which an individual is constitutionally entitled
to just compensation, or (ii) requiring the transfer back to a
trust of any or all assets transferred by that trust to the
Fund.
``(4) Jurisdiction.--Solely for purposes of implementing
this subsection, personal jurisdiction over every covered
trust, the trustees thereof, and any other necessary party, and
exclusive subject matter jurisdiction over every question
arising out of or related to this subsection, shall be vested
in the United States District Court for the District of
Columbia. Notwithstanding any other provision of law, including
section 1127 of this title, that court may make any order
necessary and appropriate to facilitate prompt compliance with
this subsection, including assuming jurisdiction over and
modifying, to the extent necessary, any applicable confirmation
order or other order with continuing and prospective
application to a covered trust. The court may also resolve any
related challenge to the constitutionality of this subsection
or of its application to any trust, trustee, or individual
claimant. The Administrator of the Fund may bring an action
seeking such an order or modification, under the standards of
rule 60(b) of the Federal Rules of Civil Procedure or
otherwise, and shall be entitled to intervene as of right in
any action brought by any other party seeking interpretation,
application, or invalidation of this subsection. Any order
denying relief that would facilitate prompt compliance with the
transfer provisions of this subsection shall be subject to
immediate appeal under section 1291(a) of title 28.''.
(g) No Avoidance of Transfer.--Section 546 of title 11, United
States Code, is amended by adding at the end the following:
``(h) Notwithstanding the rights and powers of a trustee under
sections 544, 545, 547, 548, 549, and 550 of this title, if a debtor is
a participant (as that term is defined in section 3 of the Fairness in
Asbestos Injury Resolution Act of 2005), the trustee may not avoid a
transfer made by the debtor under its payment obligations under section
202 or 203 of that Act.''.
(h) Confirmation of Plan.--Section 1129(a) of title 11, United
States Code, is amended by adding at the end the following:
``(14) If the debtor is a participant (as that term is
defined in section 3 of the Fairness in Asbestos Injury
Resolution Act of 2005), the plan provides for the continuation
after its effective date of payment of all payment obligations
under title II of that Act.''.
(i) Effect on Insurance Receivership Proceedings.--
(1) Lien.--In an insurance receivership proceeding
involving a direct insurer, reinsurer or runoff participant,
there shall be a lien in favor of the Fund for the amount of
any assessment and any such lien shall be given priority over
all other claims against the participant in receivership,
except for the expenses of administration of the receivership.
Any State law that provides for priorities inconsistent with
this provision is preempted by this Act.
(2) Payment of assessment.--Payment of any assessment
required by this Act shall not be subject to any automatic or
judicially entered stay in any insurance receivership
proceeding. This Act shall preempt any State law requiring that
payments by a direct insurer, reinsurer or runoff participant
in an insurance receivership proceeding be approved by a court,
receiver or other person. Payments of assessments by any direct
insurer or reinsurer participant under this Act shall not be
subject to the avoidance powers of a receiver or a court in or
relating to an insurance receivership proceeding.
SEC. 403. EFFECT ON OTHER LAWS AND EXISTING CLAIMS.
(a) Effect on Federal and State Law.--The provisions of this Act
shall supersede any and all Federal and State laws insofar as they may
relate to any asbestos claim, including any claim described in
subsection (d)(2).
(b) Superseding Provisions.--
(1) In general.--Any agreement, understanding, or
undertaking by any person or affiliated group with respect to
the treatment of any asbestos claim that requires future
performance by any party, insurer of such party, settlement
administrator, or escrow agent shall be superseded in its
entirety by this Act.
(2) No force or effect.--Any such agreement, understanding,
or undertaking by any such person or affiliated group shall be
of no force or effect, and no person shall have any rights or
claims with respect to any of the foregoing.
(c) Exclusive Remedy.--The remedies provided under this Act shall
be the exclusive remedy for any asbestos claim, including any claim
described in subsection (d)(2), under any Federal or State law.
(d) Bar on Asbestos Claims.--
(1) In general.--No asbestos claim, including any claim
described in subsection (d)(2), may be pursued and no pending
asbestos claim may be maintained in any Federal or State court,
except for enforcement of claims for which an order or judgment
has been duly entered by a court that is no longer subject to
any appeal or judicial review before the date of enactment of
this Act.
(2) Certain specified claims.--
(A) In general.--Subject to section 404 (d) and
(e)(3) of this Act, no claim may be brought or pursued
in any Federal or State court or insurance receivership
proceeding--
(i) relating to any default, confessed or
stipulated judgment on an asbestos claim if the
judgment debtor expressly agreed, in writing or
otherwise, not to contest the entry of judgment
against it and the plaintiff expressly agreed,
in writing or otherwise, to seek satisfaction
of the judgment only against insurers or in
bankruptcy;
(ii) relating to the defense,
investigation, handling, litigation, settlement
or payment of any asbestos claim by any
participant, including claims for bad faith or
unfair or deceptive claims handling or breach
of any duties of good faith; or
(iii) arising out of or relating to the
asbestos-related injury of any individual and--
(I) asserting any conspiracy,
concert of action, aiding or abetting,
act, conduct, statement, misstatement,
undertaking, publication, omission, or
failure to detect, speak, disclose,
publish or warn relating to the
presence or health effects of asbestos
or the use, sale, distribution,
manufacture, production, development,
inspection, advertising, marketing or
installation of asbestos; or
(II) asserting any conspiracy, act,
conduct, statement, omission or failure
to detect, disclose or warn relating to
the presence or health effects of
asbestos or the use, sale,
distribution, manufacture, production,
development, inspection, advertising,
marketing or installation of asbestos,
asserted as or in a direct action
against an insurer or reinsurer based
upon any theory, statutory, contract,
tort or otherwise; or
(iv) by any third party, and premised on
any theory, allegation or cause of action, for
reimbursement of health care costs allegedly
associated with the use of or exposure to
asbestos, whether such claim is asserted
directly, indirectly or derivatively.
(B) Exceptions.--Subparagraph (A) (ii) and (iii)
shall not apply to claims against participants by
persons--
(i) with whom the participant is in privity
of contract;
(ii) who have received an assignment of
insurance rights not otherwise voided by this
Act; or
(iii) who are beneficiaries covered by the
express terms of a contract with that
participant.
(3) Preemption.--Any action asserting an asbestos claim,
including a claim described in subsection (d)(2), in any
Federal or State court, except actions for which an order or
judgment has been duly entered by a court that is no longer
subject to any appeal or judicial review before the date of
enactment of this Act, is preempted by this Act.
(4) Dismissal.--No judgment other than a judgment of
dismissal may be entered in any such action, including an
action pending on appeal, or on petition or motion for
discretionary review, on or after the date of enactment of this
Act. A court may dismiss any such action on its motion. If the
court denies the motion to dismiss, it shall stay further
proceedings until final disposition of any appeal taken under
this Act.
(5) Removal.--
(A) In general.--If an action in any State court
under paragraph (3) is not dismissed, or if an order
entered after the date of enactment of this Act
purporting to enter judgment or deny review is not
rescinded and replaced with an order of dismissal
within 30 days after the filing of a motion by any
party to the action advising the court of the
provisions of this Act, any party may remove the case
to the district court of the United States for the
district in which such action is pending.
(B) Time limits.--For actions originally filed
after the date of enactment of this Act, the notice of
removal shall be filed within the time limits specified
in section 1441(b) of title 28, United States Code.
(C) Procedures.--The procedures for removal and
proceedings after removal shall be in accordance with
sections 1446 through 1450 of title 28, United States
Code, except as may be necessary to accommodate removal
of any actions pending (including on appeal) on the
date of enactment of this Act.
(D) Jurisdiction.--The jurisdiction of the district
court shall be limited to--
(i) determining whether removal was proper;
and
(ii) determining whether the claim
presented is an asbestos claim as defined by
this Act.
(6) Credits.--If, notwithstanding the express intent of
Congress stated in this section, any court finally determines
for any reason that an asbestos claim including a claim
described under paragraph (2) for which, before the date of
enactment of this Act, there had been no order or judgment duly
entered by a court no longer subject to any appeal or review,
is not subject to the exclusive remedy or preemption provisions
of this section, then any participant required to satisfy a
final judgment executed with respect to any such claim may
elect to receive a credit against any assessment owed to the
Fund equal to the amount of the payment made with respect to
such executed judgment. The Administrator shall require
participants seeking credit under this section to demonstrate
that the participant timely pursued all available remedies,
including remedies available under this section to obtain
dismissal of the claim, and that the participant notified the
Administrator at least 20 days before the expiration of any
period within which to appeal the denial of a motion to dismiss
based on this section. The Administrator may require such
participant to furnish such further information as is necessary
and appropriate to establish eligibility for and the amount of
the credits. The Administrator may intervene in any action in
which a credit may be due under this section.
SEC. 404. EFFECT ON INSURANCE AND REINSURANCE CONTRACTS.
(a) Erosion of Insurance Coverage Limits.--
(1) Definitions.--In this section, the following
definitions shall apply:
(A) Deemed erosion amount.--The term ``deemed
erosion amount'' means the amount of erosion deemed to
occur at enactment under paragraph (2).
(B) Early sunset.--The term ``early sunset'' means
an event causing termination of the program under
section 405(f) which relieves the insurer participants
of paying some portion of the aggregate payment level
of $46,025,000,000 required in section 212(a)(2)(A).
(C) Earned erosion amount.--The term ``earned
erosion amount'' means, in the event of any early
sunset under section 405(f), the percentage, as set
forth in the following schedule, depending on the year
in which the defendant participants' funding
obligations end, of those amounts which, at the time of
the early sunset, a defendant participant has paid to
the fund and remains obligated to pay into the fund.
Year After Enactment In Which Defendant Participant'ss Applicable
Funding Obligation Ends: Percentage:
10......................................................... 70.78
11......................................................... 68.75
12......................................................... 67.06
13......................................................... 65.63
14......................................................... 64.40
15......................................................... 63.33
16......................................................... 62.40
17......................................................... 61.58
18......................................................... 60.39
19......................................................... 59.33
20......................................................... 58.38
21......................................................... 57.51
22......................................................... 56.36
23......................................................... 55.31
24......................................................... 56.71
25......................................................... 58.11
26......................................................... 59.51
(D) Remaining aggregate products limits.--The term
``remaining aggregate products limits'' means aggregate
limits that apply to insurance coverage granted under
the ``products hazard'', ``completed operations
hazard'', or ``Products--Completed Operations
Liability'' in any comprehensive general liability
policy issued between calendar years 1940 and 1986 to
cover injury which occurs in any State, as reduced by--
(i) any existing impairment of such
aggregate limits as of the date of enactment of
this Act; and
(ii) the resolution of claims for
reimbursement or coverage of liability or paid
or incurred loss for which notice was provided
to the insurer before the date of enactment of
this Act.
(E) Scheduled payment amounts.--The term
``scheduled payment amounts'' means the future payment
obligation to the Fund under this Act from a defendant
participant in the amount established under sections
203 and 204.
(F) Unearned erosion amount.--The term ``unearned
erosion amount'' means, in the event of any early
sunset under section 405(f), the difference between the
deemed erosion amount and the earned erosion amount.
(2) Quantum and timing of erosion.--
(A) Erosion upon enactment.--The collective payment
obligations to the Fund of the insurer and reinsurer
participants as assessed by the Administrator shall be
deemed as of the date of enactment of this Act to erode
remaining aggregate products limits available to a
defendant participant only in an amount of 59.64
percent of each defendant participant's scheduled
payment amount.
(B) No erosion upon contingent call.--Any
contingent payment required by the Administrator of any
defendant participant shall not be deemed to erode
remaining aggregate product limits.
(C) No assertion of claim.--No insurer or reinsurer
may assert any claim against a defendant participant or
captive insurer for insurance, reinsurance, payment of
a deductible, or retrospective premium adjustment
arising out of that insurer or reinsurer's payments to
the Fund or the erosion deemed to occur under this
section.
(D) Policies without certain limits or with
exclusion.--Other than under subparagraph (F), nothing
in this section shall require or permit the erosion of
any insurance policy or limit that does not contain an
aggregate products limit, or that contains an asbestos
exclusion.
(E) Treatment of consolidation election.--If an
affiliated group elects consolidation as provided in
section 204(f), the total erosion of limits for the
affiliated group under paragraph (2)(A) shall not
exceed 59.64 percent of the scheduled payment amount of
the single payment obligation for the entire affiliated
group. The total erosion of limits for any individual
defendant participant in the affiliated group shall not
exceed its individual share of 59.64 percent of the
affiliated group's scheduled payment amount, as
measured by the individual defendant participant's
percentage share of the affiliated group's prior
asbestos expenditures.
(F) Rule of construction.--Notwithstanding any
other provision of this section, nothing in this Act
shall be deemed to erode remaining aggregate products
limits of a defendant participant that can demonstrate
by a preponderance of the evidence that 75 percent of
its prior asbestos expenditures were made in defense or
satisfaction of asbestos claims alleging bodily injury
arising exclusively from the exposure to asbestos at
premises owned, rented, or controlled by the defendant
participant (a ``premises defendant''). In calculating
such percentage, where expenditures were made in
defense or satisfaction of asbestos claims alleging
bodily injury due to exposure to the defendant
participant's products and to asbestos at premises
owned, rented or controlled by the defendant
participant, half of such expenditures shall be deemed
to be for such premises exposures. In the event that a
defendant participant establishes itself as a premises
defendant, 75 percent of the payments by such defendant
participant shall erode coverage limits, if any,
applicable to premises liabilities under applicable
law.
(3) Method of erosion.--
(A) Allocation.--The amount of erosion allocated to
each defendant participant shall be allocated among
periods in which policies with remaining aggregate
product limits are available to that defendant
participant pro rata by policy period, in ascending
order by attachment point.
(B) Other erosion methods.--
(i) In general.--Notwithstanding
subparagraph (A), the method of erosion of any
remaining aggregate products limits which are
subject to--
(I) a coverage-in-place or
settlement agreement between a
defendant participant and 1 or more
insurance participants as of the date
of enactment; or
(II) a final and nonappealable
judgment as of the date of enactment or
resulting from a claim for coverage or
reimbursement pending as of such date,
shall be as specified in such agreement
or judgment with regard to erosion
applicable to such insurance
participants' policies.
(ii) Remaining limits.--To the extent that
a final nonappealable judgment or settlement
agreement to which an insurer participant and a
defendant participant are parties in effect as
of the date of enactment of this Act
extinguished a defendant participant's right to
seek coverage for asbestos claims under an
insurer participant's policies, any remaining
limits in such policies shall not be considered
to be remaining aggregate products limits under
subsection (a)(1)(A).
(4) Restoration of aggregate product limits upon early
sunset.--
(A) Restoration.--In the event of an early sunset,
any unearned erosion amount will be deemed restored as
aggregate products limits available to a defendant
participant as of the date of enactment.
(B) Method of restoration.--The unearned erosion
amount will be deemed restored to each defendant
participant's policies in such a manner that the last
limits that were deemed eroded at enactment under this
subsection are deemed to be the first limits restored
upon early sunset.
(C) Tolling of coverage claims.--In the event of an
early sunset, the applicable statute of limitations and
contractual provisions for the filing of claims under
any insurance policy with restored aggregate product
limits shall be deemed tolled after the date of
enactment through the date 6 months after the date of
early sunset.
(5) Payments by defendant participant.--Payments made by a
defendant participant shall be deemed to erode, exhaust or
otherwise satisfy applicable self-insured retentions,
deductibles, retrospectively rated premiums, and limits issued
by nonparticipating insolvent or captive insurance companies.
Reduction of remaining aggregate limits under this subsection
shall not limit the right of a defendant participant to collect
from any insurer not a participant.
(6) Effect on other insurance claims.--Other than as
specified in this subsection, this Act does not alter, change,
modify, or affect insurance for claims other than asbestos
claims.
(b) Dispute Resolution Procedure.--
(1) Arbitration.--The parties to a dispute regarding the
erosion of insurance coverage limits under this section may
agree in writing to settle such dispute by arbitration. Any
such provision or agreement shall be valid, irrevocable, and
enforceable, except for any grounds that exist at law or in
equity for revocation of a contract.
(2) Title 9, united states code.--Arbitration of such
disputes, awards by arbitrators, and confirmation of awards
shall be governed by title 9, United States Code, to the extent
such title is not inconsistent with this section. In any such
arbitration proceeding, the erosion principles provided for
under this section shall be binding on the arbitrator, unless
the parties agree to the contrary.
(3) Final and binding award.--An award by an arbitrator
shall be final and binding between the parties to the
arbitration, but shall have no force or effect on any other
person. The parties to an arbitration may agree that in the
event a policy which is the subject matter of an award is
subsequently determined to be eroded in a manner different from
the manner determined by the arbitration in a judgment rendered
by a court of competent jurisdiction from which no appeal can
or has been taken, such arbitration award may be modified by
any court of competent jurisdiction upon application by any
party to the arbitration. Any such modification shall govern
the rights and obligations between such parties after the date
of such modification.
(c) Effect on Nonparticipants.--
(1) In general.--No insurance company or reinsurance
company that is not a participant, other than a captive
insurer, shall be entitled to claim that payments to the Fund
erode, exhaust, or otherwise limit the nonparticipant's
insurance or reinsurance obligations.
(2) Other claims.--Nothing in this Act shall preclude a
participant from pursuing any claim for insurance or
reinsurance from any person that is not a participant other
than a captive insurer.
(d) Finite Risk Policies not Affected.--
(1) In general.--Notwithstanding any other provision of
this Act, this Act shall not alter, affect or impair any rights
or obligations of--
(A) any party to an insurance contract that
expressly provides coverage for governmental charges or
assessments imposed to replace insurance or reinsurance
liabilities in effect on the date of enactment of this
Act; or
(B) subject to paragraph (2), any person with
respect to any insurance or reinsurance purchased by a
participant after December 31, 1996, that expressly
(but not necessarily exclusively) provides coverage for
asbestos liabilities, including those policies commonly
referred to as ``finite risk'' policies.
(2) Limitation.--No person may assert that any amounts paid
to the Fund in accordance with this Act are covered by any
policy described under paragraph (1)(B) purchased by a
defendant participant, unless such policy specifically provides
coverage for required payments to a Federal trust fund
established by a Federal statute to resolve asbestos injury
claims.
(e) Effect on Certain Insurance and Reinsurance Claims.--
(1) No coverage for fund assessments.--No participant or
captive insurer may pursue an insurance or reinsurance claim
against another participant or captive insurer for payments to
the Fund required under this Act, except under a contract
specifically providing insurance or reinsurance for required
payments to a Federal trust fund established by a Federal
statute to resolve asbestos injury claims or, where applicable,
under finite risk policies under subsection (d).
(2) Certain insurance assignments voided.--Any assignment
of any rights to insurance coverage for asbestos claims to any
person who has asserted an asbestos claim before the effective
date, or to any trust, person or other entity not part of an
affiliated group as defined in section 201(1) of this Act
established or appointed for the purpose of paying asbestos
claims which were asserted before the effective date, or by any
Tier I defendant participant, before any sunset of this Act,
shall be null and void. This subsection shall not void or
affect in any way any assignments of rights to insurance
coverage other than to asbestos claimants or to trusts,
persons, or other entities not part of an affiliated group as
defined in section 201(1) of this Act established or appointed
for the purpose of paying asbestos claims, or by Tier I
defendant participants.
(3) Insurance claims preserved.--Notwithstanding any other
provision of this Act, this Act shall not alter, affect or
impair any rights or obligations of any person with respect to
any insurance or reinsurance for amounts that any person pays,
has paid or becomes legally obligated to pay in respect of
asbestos or other claims, except to the extent that--
(A) such person pays or becomes legally obligated
to pay claims that are superseded by section 403 of
this Act;
(B) any such rights or obligations of such person
with respect to insurance or reinsurance are prohibited
by subsection (e) (1) or (2) of this section; or
(C) the limits of insurance otherwise available to
such participant in respect of asbestos claims are
deemed to be eroded under subsection (a) of this
section.
SEC. 405. ANNUAL REPORT OF THE ADMINISTRATOR.
(a) In General.--The Administrator shall submit an annual report to
the Committee on the Judiciary of the Senate and the Committee on the
Judiciary of the House of Representatives on the operation of the
Asbestos Injury Claims Resolution Fund within 6 months after the close
of each fiscal year.
(b) Contents of Report.--The annual report submitted under this
subsection shall include--
(1) a summary of the claims made during the most recent
fiscal year, including--
(A) the number of claims made to the Office and a
description of the types of medical diagnoses and
asbestos exposure underlying those claims; and
(B) the number of claims denied by the Office and a
description of the types of medical diagnoses and
asbestos exposures underlying those claims, and a
general description of the reasons for their denial;
(2) a summary of the eligibility determinations made by the
Office under section 114;
(3) a summary of the awards made from the Fund, including
the amount of the awards;
(4) an analysis of the financial condition of the Fund,
including an estimation of the Fund's ability to pay claims for
the subsequent 5 years in full as and when required, an
evaluation of the Fund's ability to retire its existing debt
and assume additional debt, and an evaluation of the Fund's
ability to satisfy other obligations under the program;
(5) a statement of the percentage of asbestos claimants who
filed claims during the prior calendar year and were determined
to be eligible to receive compensation under this Act, who have
received the compensation to which they are entitled according
to section 133 for each level;
(6) the identity of all participants and a summary of the
funding allocations of each participant, including the amounts
of all payments to the Fund;
(7) a summary of all financial hardship or inequity
adjustments applied for during the fiscal year, and a summary
of the adjustments that were made during the fiscal year;
(8) a summary of the investments made under section 222(b);
(9) a summary of all referrals made to law enforcement
authorities under section 408 and of any legal actions brought
or penalties imposed under section 223;
(10) an estimate of the number and types of claims, the
amount of awards, and the participant payment obligations for
the next fiscal year;
(11) any recommendations from the Advisory Committee on
Asbestos Disease Compensation and the Medical Advisory
Committee of the Fund to improve the diagnostic, exposure, and
medical criteria so as to pay only those claimants whose
injuries are caused by exposure to asbestos;
(12) a summary of the results of audits conducted under
section 115; and
(13) a summary of prosecutions under section 1348 of title
18, United States Code (as added by this Act).
(c) Claims Analysis.--If the Administrator concludes, on the basis
of the annual report submitted under this section, that the Fund is
compensating claims for injuries that are not caused by exposure to
asbestos and compensating such claims may, currently or in the future,
undermine the Fund's ability to compensate persons with injuries that
are caused by exposure to asbestos, he or she must include in the
report an analysis of the reasons for the situation, a description of
the range of reasonable alternatives for responding to the situation,
and a recommendation as to which alternative best serves the interest
of claimants and the public. The report may include a description of
changes in the diagnostic, exposure or medical criteria of section 121
that the Administrator believes may be necessary to protect the Fund
from compensating claims not caused by exposure to asbestos.
(d) Shortfall Analysis.--
(1) In general.--If the Administrator concludes, on the
basis of the information contained in the annual report
submitted under this section, that the Fund may not be able to
pay claims as they become due at any time within the next 5
years, the Administrator must include in the report an analysis
of the reasons for the situation, an estimation of when the
Fund will no longer be able to pay claims as they become due, a
description of the range of reasonable alternatives for
responding to the situation, and a recommendation as to which
alternative best serves the interest of claimants and the
public. The report may include a description of changes in the
diagnostic, exposure or medical criteria of section 121 that
the Administrator believes may be necessary to protect the
Fund. The range of alternatives may include--
(A) triggering the termination of this Act under
subsection (f) at any time after 7 years following the
date of enactment of this Act, and
(B) reform of the program set forth in titles I and
II of this Act (including changes in the diagnostic,
exposure or medical criteria, changes in the
enforcement or application of those criteria, changes
in the timing of payments, or changes in award values).
(2) Considerations.--In formulating recommendations, the
Administrator shall take into account the reasons for any
shortfall, actual or projected, which may include--
(A) financial factors (such as inadequate return on
investments);
(B) the operation of the Fund generally (including
the operation of the diagnostic, exposure and medical
criteria, potential problems of fraud, the adequacy of
the criteria to rule out idiopathic mesothelioma, and
inadequate flexibility to extend the timing of
payments);
(C) the actual incidence of diseases such as
mesothelioma;
(D) compensation of diseases with alternative
causes; and
(E) any other factor that the Administrator
considers relevant.
(3) Recommendation of termination.--Any recommendation of
termination should include a plan for winding up the affairs of
the Fund (and the program generally) within a defined period,
including paying in full all claims resolved at the time the
report is prepared.
(4) Resolved claims.--For purposes of this section, a claim
shall be deemed resolved when the Administrator has determined
the amount of the award due the claimant, and either the
claimant has waived judicial review or the time for judicial
review has expired.
(e) Recommendations of Administrator and Commission.--
(1) In general.--If the Administrator recommends changes to
this Act under subsection (c), the recommendations and
accompanying analysis shall be referred to a special commission
consisting of the Attorney General, the Secretary of Labor, the
Secretary of Health and Human Services, the Secretary of the
Treasury, and the Secretary of Commerce. The Commission shall
hold public hearings on the Administrator's alternatives and
recommendations and then make its own recommendations for
reform of the program set forth in titles I and II of this Act.
Within 180 days after receiving the Administrator's
recommendations, the Commission shall transmit its own
recommendations to the Congress in the same manner as set forth
in subsection (a).
(2) Referral.--If the Administrator recommends changes to,
or termination of, this Act under subsection (d), the
recommendations and accompanying analysis shall be referred to
the Commission. The Commission shall hold public hearings on
the Administrator's alternatives and recommendations and then
make its own recommendations for reform of the program set
forth in titles I and II of this Act. Within 180 days after
receiving the Administrator's recommendations, the Commission
shall transmit its own recommendations to the Congress in the
same manner as set forth in subsection (a).
(f) Sunset of Act.--
(1) In general.--At any time after 7 years following the
date on which the Administrator begins processing claims, if
the Administrator determines that, if any additional claims are
resolved, the Fund will not have sufficient resources when
needed to pay 100 percent of all resolved claims while also
making its debt repayment obligations and meeting its other
obligations under this Act, the provisions of this Act set
forth in paragraph (3) shall terminate and be of no further
effect 180 days after the Administrator's determination as to
all asbestos claims that have not been resolved by the Fund as
of the date of the determination, unless Congress passes
legislation continuing the Fund.
(2) Resolved claims.--In the event of sunset, all resolved
claims shall be paid in full by the Fund.
(3) Terminated provisions.--Subject to paragraph (4), the
provisions of this Act subject to termination under paragraph
(1) are titles I (except subtitle A) and II and sections 403
and 404(e)(2).
(4) Continued funding.--If provisions of this Act terminate
under paragraph (1), participants will still be required to
make payments as provided under subtitles A and B of title II.
If the full amount of payments required by title II is not
necessary for the Fund to pay claims that have been resolved as
of the date of termination, pay the Fund's debt, and support
the Fund's continued operation as needed to pay such claims and
debt, the Administrator may reduce such payments. Any such
reductions shall be allocated among participants in
approximately the same proportion as the liability under
subtitles A and B of title II.
(5) Definitions.--In this subsection--
(A) the term ``sunset claims'' means claims as to
which this Act has terminated; and
(B) the term ``sunset claimants'' means persons
asserting such claims.
(6) Sunset claims.--If this Act terminates in accordance
with paragraph (1), then the applicable statute of limitations
for the filing of sunset claims under subsection (g) shall be
deemed tolled for any past or pending sunset claimants while
they were pursuing claims filed under this Act. For those
claimants who decide to pursue a sunset claim in accordance
with subsection (g), the applicable statute of limitations
shall apply, except that claimants who filed a claim against
the Fund under this Act before the date of termination shall
have 2 years after the date of termination to file a sunset
claim in accordance with subsection (g), whichever is longer.
(g) Nature of Claim After Sunset.--
(1) In general.--On and after the date of termination under
subsection (f), any individual injured as a result of exposure
to asbestos, who has not previously had a claim resolved by the
Fund, may in a civil action obtain relief in damages subject to
the terms and conditions under this subsection and paragraph
(6) of subsection (f), except--
(A) an individual who received an award for a
nonmalignant disease (Levels I through V) from the Fund
may assert a claim for a malignant disease under this
subsection, unless the malignancy was diagnosed or the
claimant had discovered facts that would have led a
reasonable person to obtain such a diagnosis before the
date on which the nonmalignant claim was settled; and
(B) an individual who received an award for a
nonmalignant or malignant disease (except mesothelioma)
(Levels I through IX) from the Fund may assert a claim
for mesothelioma under this subsection, unless the
mesothelioma was diagnosed or the claimant had
discovered facts that would have led a reasonable
person to obtain such a diagnosis before the date on
which the nonmalignant or other malignant claim was
settled.
(2) Exclusive jurisdiction.--The United States district
courts shall have exclusive jurisdiction of all actions under
paragraph (1), to the exclusion of State courts and any other
forum. As of the effective date of a termination of this Act
under subsection (f), an action under paragraph (1) shall be
the exclusive remedy for any asbestos claim that might
otherwise exist under Federal, State or other law, regardless
of whether such claim arose before or after the effective date
of this Act or of the termination of this Act, except that
claims against the Fund that have been resolved before the date
of the termination determination under subsection (f) may be
paid by the Fund.
(3) Venue.--Actions under paragraph (1) shall be brought
only in the United States district court for the judicial
district where the claimant resides or the exposure is alleged
to have occurred.
(4) Applicable law.--An action under paragraph (1) shall be
governed by Federal common law, except that where national
uniformity is not required the court must utilize otherwise
applicable State law, including State statutes, to provide the
appropriate rule of Federal common law.
SEC. 406. RULES OF CONSTRUCTION RELATING TO LIABILITY OF THE UNITED
STATES GOVERNMENT.
(a) Causes of Actions.--Except as otherwise specifically provided
in this Act, nothing in this Act may be construed as creating a cause
of action against the United States Government, any entity established
under this Act, or any officer or employee of the United States
Government or such entity.
(b) Funding Liability.--Nothing in this Act may be construed to--
(1) create any obligation of funding from the United States
Government, other than the funding for personnel and support as
provided under this Act; or
(2) obligate the United States Government to pay any award
or part of an award, if amounts in the Fund are inadequate.
SEC. 407. RULES OF CONSTRUCTION.
(a) Libby, Montana Claimants.--Nothing in this Act shall preclude
the formation of a fund for the payment of eligible medical expenses
related to treating asbestos-related disease for current and former
residents of Libby, Montana.
(b) Health Care From Provider of Choice.--Nothing in this Act shall
be construed to preclude any eligible claimant from receiving health
care from the provider of their choice.
SEC. 408. VIOLATIONS OF ENVIRONMENTAL AND OCCUPATIONAL HEALTH AND
SAFETY REQUIREMENTS.
(a) Asbestos in Commerce.--If the Administrator receives
information concerning conduct occurring after the date of enactment of
this Act that may have been a violation of standards issued by the
Environmental Protection Agency under the Toxic Substances Control Act
(15 U.S.C. 2601 et seq.), relating to the manufacture, importation,
processing, disposal and distribution in commerce of asbestos-
containing products, the Administrator shall refer the matter in
writing within 30 days after receiving that information to the
Administrator of the Environmental Protection Agency and the United
States Attorney for possible civil or criminal penalties, including
those under section 17 of the Toxic Substances Control Act (15 U.S.C.
2616), and to the appropriate State authority with jurisdiction to
investigate asbestos matters.
(b) Asbestos as Air Pollutant.--If the Administrator receives
information concerning conduct occurring after the date of enactment of
this Act that may have been a violation of standards issued by the
Environmental Protection Agency under the Clean Air Act (42 U.S.C. 7401
et seq.), relating to asbestos as a hazardous air pollutant, the
Administrator shall refer the matter in writing within 30 days after
receiving that information to the Administrator of the Environmental
Protection Agency and the United States Attorney for possible criminal
and civil penalties, including those under section 113 of the Clean Air
Act (42 U.S.C. 7413), and to the appropriate State authority with
jurisdiction to investigate asbestos matters.
(c) Occupational Exposure.--If the Administrator receives
information concerning conduct occurring after the date of enactment of
this Act that may have been a violation of standards issued by the
Occupational Safety and Health Administration under the Occupational
Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), relating to
occupational exposure to asbestos, the Administrator shall refer the
matter in writing within 30 days after receiving that information and
refer the matter to--
(1) the United States Attorney for possible criminal
prosecution under section 5(a) of such Act (29 U.S.C. 654(a));
(2) the Secretary of Labor for possible civil penalties
under section 17 (a) through (d) of such Act (29 U.S.C. 666 (a)
through (d)); and
(3) the Assistant Secretary for the Occupational Safety and
Health Commission, and the appropriate State authority with
jurisdiction to investigate asbestos matters, for possible
civil or criminal penalties, including those under section 17
of the Occupational Safety and Health Act of 1970 (29 U.S.C.
666).
(d) Review of Federal Sentencing Guidelines for Environmental
Crimes Related to Asbestos.--Under section 994 of title 28, United
States Code, and in accordance with this section, the United States
Sentencing Commission shall review and amend, as appropriate, the
United States Sentencing Guidelines and related policy statements to
ensure that--
(1) appropriate changes are made within the guidelines to
reflect any statutory amendments that have occurred since the
time that the current guideline was promulgated;
(2) the base offense level, adjustments and specific
offense characteristics contained in section 2Q1.2 of the
United States Sentencing Guidelines (relating to mishandling of
hazardous or toxic substances or pesticides; recordkeeping,
tampering, and falsification; and unlawfully transporting
hazardous materials in commerce) are increased as appropriate
to ensure that future asbestos related-offenses reflect the
seriousness of the offense, the harm to the community, the need
for ongoing reform, and the highly regulated nature of
asbestos;
(3) the base offense level, adjustments and specific
offense characteristics are sufficient to deter and punish
future activity and are adequate in cases in which the relevant
offense conduct--
(A) involves asbestos as a hazardous or toxic
substance; and
(B) occurs after the date of enactment of this Act;
(4) the adjustments and specific offense characteristics
contained in section 2B1.1 of the United States Sentencing
Guidelines related to fraud, deceit and false statements,
adequately take into account that asbestos was involved in the
offense, and the possibility of death or serious bodily harm as
a result;
(5) the guidelines that apply to organizations in chapter 8
of the United States Sentencing Guidelines, are sufficient to
deter and punish organizational criminal misconduct that
involves the use, handling, purchase, sale, disposal, or
storage of asbestos; and
(6) the guidelines that apply to organizations in chapter 8
of the United States Sentencing Guidelines, are sufficient to
deter and punish organizational criminal misconduct that
involves fraud, deceit, or false statements against the Office
of Asbestos Disease Compensation.
SEC. 409. NONDISCRIMINATION OF HEALTH INSURANCE.
(a) Denial, Termination, or Alteration of Health Coverage.--No
health insurer offering a health plan may deny or terminate coverage,
or in any way alter the terms of coverage, of any claimant or the
beneficiary of a claimant, on account of the participation of the
claimant or beneficiary in a medical monitoring program under this Act,
or as a result of any information discovered as a result of such
medical monitoring.
(b) Definitions.--In this section:
(1) Health insurer.--The term ``health insurer'' means--
(A) an insurance company, health care service
contractor, fraternal benefit organization, insurance
agent, third party administrator, insurance support
organization, or other person subject to regulation
under the laws related to health insurance of any
State;
(B) a managed care organization; or
(C) an employee welfare benefit plan regulated
under the Employee Retirement Income Security Act of
1974 (29 U.S.C. 1001 et seq.).
(2) Health plan.--The term ``health plan'' means--
(A) a group health plan (as such term is defined in
section 607 of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1167)), and a multiple employer
welfare arrangement (as defined in section 3(4) of such
Act) that provides health insurance coverage; or
(B) any contractual arrangement for the provision
of a payment for health care, including any health
insurance arrangement or any arrangement consisting of
a hospital or medical expense incurred policy or
certificate, hospital or medical service plan contract,
or health maintenance organizing subscriber contract.
(c) Conforming Amendments.--
(1) Erisa.--Section 702(a)(1) of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1182(a)(1)), is amended
by adding at the end the following:
``(I) Participation in a medical monitoring program
under the Fairness in Asbestos Injury Resolution Act of
2005.''.
(2) Public service health act.--Section 2702(a)(1) of the
Public Health Service Act (42 U.S.C. 300gg-1(a)(1)) is amended
by adding at the end the following:
``(I) Participation in a medical monitoring program
under the Fairness in Asbestos Injury Resolution Act of
2005.''.
(3) Internal revenue code of 1986.--Section 9802(a)(1) of
the Internal Revenue Code of 1986 is amended by adding at the
end the following:
``(I) Participation in a medical monitoring program
under the Fairness in Asbestos Injury Resolution Act of
2005.''.
TITLE V--ASBESTOS BAN
SEC. 501. PROHIBITION ON ASBESTOS CONTAINING PRODUCTS.
(a) In General.--Title II of the Toxic Substances Control Act (15
U.S.C. 2641 et seq.) is amended--
(1) by inserting before section 201 (15 U.S.C. 2641) the
following:
``Subtitle A--General Provisions'';
(2) by adding at the end the following:
``Subtitle B--Ban of Asbestos Containing Products
``SEC. 221. BAN OF ASBESTOS CONTAINING PRODUCTS.
``(a) Definitions.--In this chapter:
``(1) Administrator.--The term `Administrator' means the
Administrator of the Environmental Protection Agency.
``(2) Asbestos.--The term `asbestos' includes--
``(A) chrysotile;
``(B) amosite;
``(C) crocidolite;
``(D) tremolite asbestos;
``(E) winchite asbestos;
``(F) richterite asbestos;
``(G) anthophyllite asbestos;
``(H) actinolite asbestos;
``(I) any of the minerals listed under
subparagraphs (A) through (H) that has been chemically
treated or altered, and any asbestiform variety, type
or component thereof.
``(3) Asbestos containing product.--The term `asbestos
containing product' means any product (including any part) to
which asbestos is deliberately or knowingly added or used
because the specific properties of asbestos are necessary for
product use or function. Under no circumstances shall the term
`asbestos containing product' be construed to include products
that contain de minimus levels of naturally occurring asbestos
as defined by the Administrator not later than 1 year after the
date of enactment of this chapter.
``(4) Distribute in commerce.--The term `distribute in
commerce'--
``(A) has the meaning given the term in section 3
of the Toxic Substances Control Act (15 U.S.C. 2602);
and
``(B) shall not include--
``(i) an action taken with respect to an
asbestos containing product in connection with
the end use of the asbestos containing product
by a person that is an end user, or an action
taken by a person who purchases or receives a
product, directly or indirectly from an end
user; or
``(ii) distribution of an asbestos
containing product by a person solely for the
purpose of disposal of the asbestos containing
product in compliance with applicable Federal,
State, and local requirements.
``(b) In General.--Subject to subsection (c), the Administrator
shall promulgate--
``(1) not later than 1 year after the date of enactment of
this chapter, proposed regulations that--
``(A) prohibit persons, from manufacturing,
processing, or distributing in commerce asbestos
containing products; and
``(B) provide for implementation of subsections (c)
and (d); and
``(2) not later than 2 years after the date of enactment of
this chapter, final regulations that, effective 60 days after
the date of promulgation, prohibit persons from manufacturing,
processing, or distributing in commerce asbestos containing
products.
``(c) Exemptions.--
``(1) In general.--Any person may petition the
Administrator for, and the Administrator may grant an exemption
from the requirements of subsection (b), if the Administrator
determines that--
``(A) the exemption would not result in an
unreasonable risk of injury to public health or the
environment; and
``(B) the person has made good faith efforts to
develop, but has been unable to develop, a substance,
or identify a mineral that does not present an
unreasonable risk of injury to public health or the
environment and may be substituted for an asbestos
containing product.
``(2) Terms and conditions.--An exemption granted under
this subsection shall be in effect for such period (not to
exceed 5 years) and subject to such terms and conditions as the
Administrator may prescribe.
``(3) Governmental use.--
``(A) In general.--The Administrator of the
Environmental Protection Agency shall provide an
exemption from the requirements of subsection (b),
without review or limit on duration, if such exemption
for an asbestos containing product is--
``(i) sought by the Secretary of Defense
and the Secretary certifies, and provides a
copy of that certification to Congress, that--
``(I) use of the asbestos
containing product is necessary to the
critical functions of the Department;
``(II) no reasonable alternatives
to the asbestos containing product
exist for the intended purpose; and
``(III) use of the asbestos
containing product will not result in
an unreasonable risk to health or the
environment; or
``(ii) sought by the Administrator of the
National Aeronautics and Space Administration
and the Administrator of the National
Aeronautics and Space Administration certifies,
and provides a copy of that certification to
Congress, that--
``(I) the asbestos containing
product is necessary to the critical
functions of the National Aeronautics
and Space Administration;
``(II) no reasonable alternatives
to the asbestos containing product
exist for the intended purpose; and
``(III) the use of the asbestos
containing product will not result in
an unreasonable risk to health or the
environment.
``(B) Administrative procedure act.--Any
certification required under subparagraph (A) shall not
be subject to chapter 5 of title 5, United States Code
(commonly referred to as the `Administrative Procedure
Act').
``(4) Specific exemptions.--The following are exempted:
``(A) Asbestos diaphragms for use in the
manufacture of chlor-alkali and the products and
derivative therefrom.
``(B) Roofing cements, coatings and mastics
utilizing asbestos that is totally encapsulated with
asphalt, subject to a determination by the
Administrator of the Environmental Protection Agency
under paragraph (5).
``(5) Environmental protection agency review.--
``(A) Review in 18 months.--Not later than 18
months after the date of enactment of this chapter, the
Administrator of the Environmental Protection Agency
shall complete a review of the exemption for roofing
cements, coatings, and mastics utilizing asbestos that
are totally encapsulated with asphalt to determine
whether--
``(i) the exemption would result in an
unreasonable risk of injury to public health or
the environment; and
``(ii) there are reasonable, commercial
alternatives to the roofing cements, coatings,
and mastics utilizing asbestos that is totally
encapsulated with asphalt.
``(B) Revocation of exemption.--Upon completion of
the review, the Administrator of the Environmental
Protection Agency shall have the authority to revoke
the exemption for the products exempted under paragraph
(4)(B) if warranted.
``(d) Disposal.--
``(1) In general.--Except as provided in paragraph (2), not
later than 3 years after the date of enactment of this chapter,
each person that possesses an asbestos containing product that
is subject to the prohibition established under this section
shall dispose of the asbestos containing product, by a means
that is in compliance with applicable Federal, State, and local
requirements.
``(2) Exemption.--Nothing in paragraph (1)--
``(A) applies to an asbestos containing product
that--
``(i) is no longer in the stream of
commerce; or
``(ii) is in the possession of an end user
or a person who purchases or receives an
asbestos containing product directly or
indirectly from an end user; or
``(B) requires that an asbestos containing product
described in subparagraph (A) be removed or
replaced.''.
(b) Technical and Conforming Amendments.--The table of contents in
section 1 of the Toxic Substances Control Act (15 U.S.C. prec. 2601) is
amended--
(1) by inserting before the item relating to section 201
the following:
``Subtitle A--General provisions'';
and
(2) by adding at the end of the items relating to title II
the following:
``Subtitle B--Ban of Asbestos Containing Products
``Sec. 221. Ban of asbestos containing products.''.
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