[Congressional Record Volume 149, Number 74 (Monday, May 19, 2003)]
[Senate]
[Pages S6600-S6612]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ASBESTOS REFORM
Mr. HATCH. Mr. President, as everybody knows, I have been working for
months--actually perhaps longer than that--on an asbestos reform bill
to try to resolve the terrible asbestos problem we have in our society.
I have indicated various deadlines throughout these months which I
have set.
I compliment the business community, the insurance community, the
union community, and so many other companies that have been involved
for their willingness to work with us. I think we are about there.
We have a bill I am going to print in the Record this evening so
everybody who is interested in this issue can read it and review it
because I intend to file a formal bill this Thursday. I would like to
have as many cosponsors as I can get on it because it will be the only
way we will get this problem solved.
This draft bill is not a formal bill. But I want it to be printed in
the Record for all to see. It is a very important draft bill. I hope
those who are interested will go over it with a fine-toothed comb and
get with us over the next 2 days, if there are substantive suggestions
they have. We will be happy to look at those.
This is basically what I intend to file as a formal bill this next
Thursday. I hope I will have a number of my colleagues on both sides of
the floor join with me.
I ask unanimous consent this draft bill be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
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 2003'' or the ``FAIR Act
of 2003''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Purpose.
Sec. 3. Definitions.
TITLE I--ASBESTOS CLAIMS RESOLUTION
Subtitle A--United States Court of Asbestos Claims
Sec. 101. Establishment of Asbestos Court.
Subtitle B--Asbestos Injury Claims Resolution Procedures
Sec. 111. Filing of claims.
Sec. 112. General rule concerning no-fault compensation.
Sec. 113. Essential elements of eligible asbestos claim.
Sec. 114. Eligibility determinations and claim awards.
Sec. 115. Medical evidence auditing procedures.
Sec. 116. Claimant assistance program.
Subtitle C--Medical Criteria
Sec. 121. Essential elements of eligible asbestos claim.
Sec. 122. Diagnostic criteria requirements.
Sec. 123. Latency criteria requirements.
Sec. 124. Medical criteria requirements.
Sec. 125. Exposure criteria requirements.
Subtitle D--Awards
Sec. 131. Amount.
Sec. 132. Medical monitoring.
Sec. 133. Payments.
Sec. 134. Reduction in benefit payments for collateral sources.
Subtitle E--En Banc Review
Sec. 141. En banc review.
TITLE II--ASBESTOS INJURY CLAIMS RESOLUTION FUND
Subtitle A--Asbestos Defendants Funding Allocation
Sec. 201. Definitions.
Sec. 202. Authority and tiers.
Sec. 203. Subtier assessments.
Sec. 204. Assessment administration.
Subtitle B--Asbestos Insurers Commission
Sec. 211. Establishment of Asbestos Insurers Commission.
Sec. 212. Duties of Asbestos Insurers Commission.
[[Page S6601]]
Sec. 213. Powers of Asbestos Insurers Commission.
Sec. 214. Personnel matters.
Sec. 215. Nonapplication of FOIA and confidentiality of information.
Sec. 216. Termination of Asbestos Insurers Commission.
Sec. 217. Authorization of appropriations.
Subtitle C--Office of Asbestos Injury Claims Resolution
Sec. 221. Establishment of the Office of Asbestos Injury Claims
Resolution.
Sec. 222. Powers of the Administrator and management of the Fund.
Sec. 223. Asbestos Injury Claims Resolution Fund.
Sec. 224. Enforcement of contributions.
Sec. 225. Additional contributing participants.
TITLE III--JUDICIAL REVIEW
Sec. 301. Judicial review of decisions of the Asbestos Court.
Sec. 302. Judicial review of final determinations of the Asbestos
Insurers Commission.
Sec. 303. Exclusive review.
Sec. 304. Private right of action against reinsurers.
TITLE IV--MISCELLANEOUS PROVISIONS
Sec. 401. False information.
Sec. 402. Effect on bankruptcy laws.
Sec. 403. Effect on other laws and existing claims.
SEC. 2. PURPOSE.
The purpose of this Act is to create a privately funded,
publicly administered fund to provide the necessary resources
for an asbestos injury claims resolution program.
SEC. 3. DEFINITIONS.
In this Act, the following definitions shall apply:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the Office of Asbestos Injury Claims
Resolution appointed under section 221(c).
(2) Asbestos.--The term ``asbestos'' includes--
(A) chrysotile;
(B) amosite;
(C) crocidolite;
(D) tremolite;
(E) winchite;
(F) richterite;
(G) anthophyllite;
(H) actinolite;
(I) any of the minerals listed under subparagraphs (A)
through (H) that has been chemically treated or altered, and
any 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
personal injury claim for damages or other relief presented
in a civil action or bankruptcy proceeding, arising out of,
based on, or related to 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 for
benefits under a workers' compensation law or veterans'
benefits program, or claims brought by any person as a
subrogee by virtue of the payment of benefits under a
workers' compensation law.
(4) Asbestos claimant.--The term ``asbestos claimant''
means an individual who files an asbestos claim under section
111.
(5) Asbestos court; court.--The terms ``Asbestos Court'' or
``Court'' means the United States Court of Asbestos Claims
established under section 101.
(6) 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.
(7) Collateral source.--The term ``collateral source''
means all collateral sources, including--
(A) disability insurance;
(B) health insurance;
(C) medicare;
(D) medicaid;
(E) death benefit programs;
(F) defendants;
(G) insurers of defendants; and
(H) compensation trusts.
(8) 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, mesothelioma, lung cancer I, lung cancer
II, other cancers, and qualifying non-malignant asbestos-
related diseases.
(9) Fund.--The term ``Fund'' means the Asbestos Injury
Claims Resolution Fund established under section 223.
(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.--The term ``participant'' means any
person subject to the funding requirements of title II,
including--
(A) any defendant participant subject to an assessment for
contribution under subtitle A of that title; and
(B) any insurer participant subject to an assessment for
contribution under subtitle B of that title.
(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) 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.
(15) Worker's compensation law.--The term ``worker's
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. sections 901 et seq.) and chapter 81 of title
5, United States Code; and
(C) does not include the Federal Employer's Liability Act
(45 U.S.C. 51 et seq.) or damages recovered by any employee
in a liability action against an employer.
TITLE I--ASBESTOS CLAIMS RESOLUTION
Subtitle A--United States Court of Asbestos Claims
SEC. 101. ESTABLISHMENT OF ASBESTOS COURT.
(a) In General.--Part I of title 28, United States Code, is
amended by inserting after chapter 7 the following:
``CHAPTER 9--UNITED STATES COURT OF ASBESTOS CLAIMS
``Sec.
``201. Establishment of the United States Court of Asbestos Claims.
``202. Magistrates.
``203. Retirement of judges of the United States Court of Asbestos
Claims.
``Sec. 201. Establishment of the United States Court of
Asbestos Claims
``(a) Establishment and Appointment of Judges.--
``(1) In general.--The President shall appoint, by and with
the advice and consent of the Senate, 5 judges, who shall
constitute a court of record known as the United States Court
of Asbestos Claims.
``(2) Article i court.--The Court of Asbestos Claims is
declared to be a court established under article I of the
Constitution of the United States.
``(b) Term; Removal; Compensation.--
``(1) Term.--Each judge appointed under subsection (a)
shall serve for a term of 15 years, except that judges
initially appointed shall serve for staggered terms as the
President shall determine appropriate to assure continuity.
``(2) Removal.--Judges may be removed by the President only
for good cause.
``(3) Compensation.--Each judge shall receive a salary at
the rate of pay, and in the same manner, as judges of the
district courts of the United States.
``(c) Chief Judge.--
``(1) In general.--The President shall designate 1 of the
judges appointed under subsection (b)(1), who is less than 70
years of age, to serve as chief judge.
``(2) Term.--The chief judge may continue to serve as such
until--
``(A) he or she reaches the age of 70 years;
``(B) another judge is designated as chief judge by the
President; or
``(C) the expiration of his or her term under subsection
(b)(1).
``(3) Continuity of service.--Upon the designation by the
President of another judge to serve as chief judge, the
former chief judge may continue to serve as a judge of the
Court of Asbestos Claims for the balance of the term to which
he or she was appointed.
``(4) Powers of chief judge.--The chief judge is authorized
to--
``(A) prescribe rules and procedures for hearings and
appeals of the Court of Asbestos Claims and its magistrates;
``(B) appoint magistrates;
``(C) appoint or contract for the services of such
personnel as may be necessary and appropriate to carry out
the responsibilities of the Court of Asbestos Claims; and
``(D) make such expenditures as may be necessary and
appropriate in the administration of the responsibilities of
the Court of Asbestos Claims and the chief judge under this
chapter and the Fairness in Asbestos Injury Resolution Act of
2003.
``(d) Time and Places of Holding Court.--
``(1) In general.--The principal office of the Court of
Asbestos Claims shall be in the District of Columbia, but the
Court of Asbestos Claims may hold court at such times and in
such places as the chief judge may prescribe by rule.
``(2) Limitation.--The times and places of the sessions of
the Court of Asbestos Claims
[[Page S6602]]
shall be prescribed with a view to securing reasonable
opportunity to citizens to appear before the Court of
Asbestos Claims.
``(e) Official Duty Station; Residence.--
``(1) Duty station.--The official duty station of each
judge of the Court of Asbestos Claims is the District of
Columbia.
``(2) Residence.--After appointment and while in active
service, each judge of the Court of Asbestos Claims shall
reside within 50 miles of the District of Columbia.
``Sec. 202. Magistrates
``(a) Appointment.--The chief judge shall appoint such
magistrates as necessary to facilitate the expeditious
processing of claims.
``(b) Compensation.--The compensation of magistrates shall
be determined by the chief judge, but shall not exceed the
annual rate of basic pay of level V of the Executive
Schedule, as prescribed by section 5316 of title 5.
``(c) Retirement.--For purposes of Federal laws relating to
retirement, including chapters 83 and 84 of title 5,
magistrates appointed under this section shall be deemed to
be appointed under section 631 of this title.
``(d) Regulations.--Except as provided under subsection
(c), chapter 43 shall not apply to magistrates appointed
under this chapter, except the chief judge may prescribe
rules similar to the provisions of chapter 43 to apply to
magistrates.
``Sec. 203. Retirement of judges of the United States Court
of Asbestos Claims
``(a) In General.--For purposes of Federal laws relating to
retirement, judges of the Court of Asbestos Claims shall be
treated in the same manner and to the same extent as judges
of the Court of Federal Claims.
``(b) Regulations.--In carrying out this section--
``(1) the Director of the Administrative Office of the
United States Courts shall promulgate regulations to apply
provisions similar to section 178 of this title (including
the establishment of a Court of Asbestos Claims Judges
Retirement Fund) to judges of the Court of Asbestos Claims;
and
``(2) the Director of the Office of Personnel Management
shall promulgate regulations to apply chapters 83 and 84 of
title 5 to judges of the Court of Asbestos Claims.''.
(b) Technical and Conforming Amendment.--The table of
chapters for part I of title 28, United States Code, is
amended by striking the item relating to chapter 9, and
inserting after the item relating to chapter 7 the following:
``9. United States Court of Asbestos Claims.''.
Subtitle B--Asbestos Injury Claims Resolution Procedures
SEC. 111. FILING OF CLAIMS.
(a) Who May Submit.--
(1) General rule.--Any individual who has suffered from an
eligible disease or condition that is believed to meet the
requirements established under subtitle C (or the spouse,
parent, child, or other relative of such individual in a
representative capacity, or the executor of the estate of
such individual) may file a claim with the Asbestos Court for
compensation with respect to such injury.
(2) Rules.--The Asbestos Court may issue procedural rules
to specify individuals who may file an asbestos claim as a
representative of another individual.
(3) Limitation.--An asbestos claim may not be filed by any
person seeking contribution or indemnity.
(b) Required Information.--To be valid, an asbestos claim
filed under subsection (a) shall be notarized and 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 detailed description of the work history of the
claimant, including social security records or a signed
release permitting access to such records;
(4) a detailed description of the asbestos exposure of the
claimant, including information on the identity of any
product or manufacturer, site, or location of exposure, plant
name, and duration and intensity of exposure;
(5) a detailed description of the tobacco product use
history of the claimant, including frequency and duration;
(6) an identification and description of the asbestos-
related diseases of the claimant, including a written report
by the claimant's physician with medical diagnoses and test
results necessary to make a determination of medical
eligibility that complies with the applicable requirements of
this subtitle and subtitle C;
(7) a description of any prior or pending civil action or
other claim brought by the claimant for asbestos-related
injury, including an identification of any recovery of
compensation or damages through settlement, judgment, or
otherwise; and
(8) any other information that is required to be included
under procedural rules issued by the Court.
(c) Statute of Limitations.--
(1) In general.--Except as provided in paragraphs (2) and
(3), if an individual fails to file an asbestos claim with
the Asbestos Court under this section within 2 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 claim for an asbestos-related injury 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 an asbestos claim under
this section within 2 years after such date of enactment or
be barred from receiving any compensation under this title.
(3) Effect of multiple injuries.--An asbestos claimant who
receives compensation under this title for an eligible
disease or condition, and who subsequently develops another
such injury, shall be eligible for additional compensation
under this title (subject to appropriate setoffs for such
prior recovery of compensation 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.
(4) Rule of construction.--Paragraph (2) shall be
interpreted as a statute of limitations and be construed to
the benefit of the Fund and of any person who might otherwise
have been made subject to an asbestos claim to which such
paragraph is applied.
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. ESSENTIAL ELEMENTS OF ELIGIBLE ASBESTOS CLAIM.
To be eligible for compensation under this subtitle for an
asbestos-related injury, an individual shall--
(1) file an asbestos claim in a timely manner in accordance
with section 111; and
(2) prove, by a preponderance of the evidence that--
(A) the claimant suffers from an eligible disease or
condition, as demonstrated by evidence (submitted as part of
the claim) that meets the medical criteria requirements and
diagnostic criteria requirements established under subtitle
C; and
(B) the claimant meets the latency criteria requirements
and the exposure criteria requirements established under
subtitle C.
SEC. 114. ELIGIBILITY DETERMINATIONS AND CLAIM AWARDS.
(a) Claims Examiners.--
(1) In general.--The Asbestos Court shall appoint, or
contract for the services of, qualified individuals to assist
magistrates by conducting eligibility reviews of asbestos
claims filed with the Court.
(2) Criteria.--The Asbestos Court shall establish criteria
with respect to the qualifications of individuals who are
eligible to serve as claims examiners and, in developing such
criteria, shall consult with such experts as the Court
determines appropriate.
(b) Referral of Asbestos Claim.--Not later than 20 days
after the filing of an asbestos claim with the Asbestos
Court, the Court shall refer such claim to a magistrate.
(c) Initial Review.--
(1) In general.--Under the direction of a magistrate, a
claims examiner shall make an initial review of an asbestos
claim to determine whether all required information has been
submitted by the claimant.
(2) Notice of incomplete claim.--If the claims examiner
determines that all required information has not been
submitted, the examiner--
(A) shall notify the claimant of such determination and
require the submission of additional information necessary
for a determination of eligibility;
(B) may compel the submission of any additional
information;
(C) may request that the claimant undergo additional
medical examinations and tests if information from such
examinations or tests is necessary to enable the examiner to
make a determination of medical eligibility; and
(D) may require any releases necessary to enable the
examiner to obtain medical or other information relevant to
the determination of eligibility.
(d) Expeditious Determinations.--The Asbestos Court shall
prescribe rules to expedite claims for asbestos claimants
with exigent circumstances.
(e) Audit and Personnel Review Procedures.--The Asbestos
Court shall establish audit and personnel review procedures
for evaluating the accuracy of eligibility recommendations of
magistrates.
(f) Eligibility Determinations.--
(1) In general.--Not later than 60 days after the receipt
by a magistrate of all required information and requested
medical advice with respect to an asbestos claim, the
magistrate shall transmit a recommendation of the
compensation to which the claimant is entitled and findings
of fact to a judge of the Asbestos Court.
(2) Admissibility of findings of fact.--A determination
under paragraph (1) shall include relevant findings of fact
and shall be admissible as evidence in any judicial review.
(g) Decision of Judge.--
(1) In general.--Not later than 30 days after receipt of a
recommendation of a magistrate, a judge of the Asbestos Court
shall
[[Page S6603]]
make a final decision of any compensation to which the
claimant is entitled.
(2) Waiver of judicial review.--The final decision under
paragraph (1) shall include an acceptance form by which the
claimant may waive the right to judicial review and expedite
payment of compensation from the Fund.
(h) Awarding of Compensation.--
(1) In general.--If a judge of the Asbestos Court
determines that an asbestos claimant is entitled to
compensation, the Court shall notify the Administrator to
award the claimant compensation from the Fund in the amount
of the judge's decision.
(2) Claim extinguished.--The acceptance of a payment under
this Act shall extinguish all claims related to such payment.
SEC. 115. MEDICAL EVIDENCE AUDITING PROCEDURES.
(a) Development.--The Asbestos Court shall develop methods
for auditing the medical evidence submitted as part of an
asbestos claim, including methods to ensure the independent
reading of x-rays and results of pulmonary function tests.
The Court may develop additional methods for auditing other
types of evidence or information received by the Court.
(b) Refusal To Consider Certain Evidence.--
(1) In general.--If the Asbestos Court determines that an
audit conducted in accordance with the methods developed
under subsection (a) 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, the Court shall notify
claims examiners and the magistrates that any medical
evidence from such physician or facility shall be
unacceptable for purposes of establishing eligibility for
compensation under this Act.
(2) Notification.--Upon a determination by the Asbestos
Court under paragraph (1), the Court shall notify the
physician or medical facility involved of the results of the
audit. Such physician or facility shall have a right to
appeal the determination of the Court under procedures issued
by the Court.
SEC. 116. CLAIMANT ASSISTANCE PROGRAM.
(a) Establishment.--The Asbestos Court shall establish an
asbestos claimant assistance program to provide assistance to
claimants in preparing and submitting asbestos claim
applications and in responding to claimant inquiries.
(b) Legal Assistance.--
(1) In general.--As part of the program established under
subsection (a), the Asbestos Court 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 Court shall maintain a roster of qualified attorneys who
have agreed to provide pro bono services to asbestos
claimants under rules established by the Court. The claimants
shall not be required to use the attorneys listed on such
roster.
Subtitle C--Medical Criteria
SEC. 121. ESSENTIAL ELEMENTS OF ELIGIBLE ASBESTOS CLAIM.
To be eligible for compensation under this title for an
asbestos-related injury, an individual shall--
(1) file an asbestos claim under this title in a timely
manner; and
(2) prove, by a preponderance of the evidence that--
(A) the claimant suffers from an eligible disease or
condition, as demonstrated by evidence (submitted as part of
the claim) that meets the diagnostic criteria requirements
described in section 122 and the medical criteria
requirements described in section 124; and
(B) the claimant meets the latency criteria requirements
described in section 123 and the exposure criteria
requirements described in section 125.
SEC. 122. DIAGNOSTIC CRITERIA REQUIREMENTS.
(a) In General.--To be eligible to receive compensation
under this title for an asbestos-related injury, the claim
submitted by the asbestos claimant shall demonstrate a
medical diagnosis that meets the requirements of this
section.
(b) Diagnosis.--A medical diagnosis meets the requirements
of this section if the diagnosis--
(1) is made by a physician who--
(A) treated, or is treating, the claimant;
(B) conducted an in-person medical examination of the
claimant; and
(C) is licensed to practice medicine in the State in which
the examination occurred and in which the diagnosis is
rendered;
(2) includes a review by the physician of the work history,
asbestos exposure pattern, and smoking history of the
claimant, or other factors determined appropriate by the
Asbestos Court;
(3) is independently verified with respect to the duration,
proximity, regularity, and intensity of the asbestos exposure
involved; and
(4) has excluded other more likely causes of the injury of
the claimant.
(c) Results of Medical Examinations and Tests.--
(1) In general.--In making the demonstration required under
subsection (a), an asbestos claimant shall submit--
(A) x-rays (including both films and B-reader reports);
(B) detailed results of pulmonary function tests (including
spirometric tracings);
(C) laboratory tests; and
(D) the results of medical examination or reviews of other
medical evidence.
(2) Procedural requirements.--A submission under paragraph
(1) shall comply with the requirements of this Act and
recognized medical standards regarding equipment, testing
methods, and procedures to ensure that such medical evidence
is reliable.
(d) Sufficiency of Medical Evidence.--In making
determinations under this section, a magistrate shall not
make a determination unless the medical evidence provided in
support of the asbestos claim is credible and consistent with
this section, the medical criteria described in section 124,
and recognized medical standards.
(e) Attorney Retention Agreements.--An attorney retention
agreement shall not be required as a prerequisite to a
medical examination or medical screening for purposes of
obtaining a medical diagnosis or other medical information
under this section.
(f) Rules.--The Asbestos Court shall prescribe rules to
implement the diagnostic criteria requirements to be used in
applying this section.
SEC. 123. LATENCY CRITERIA REQUIREMENTS.
(a) In General.--To be eligible to receive compensation
under this title for an asbestos-related injury, the claim
submitted by the asbestos claimant shall demonstrate that the
claimant was exposed to asbestos--
(1) in a manner that meets the exposure requirements of
sections 124 and 125;
(2) within the United States or its territories or
possessions; and
(3) for at least 10 years before the initial diagnosis of
any asbestos-related injury.
(b) Consistency with Medical Criteria.--An asbestos
claimant shall be required to demonstrate that any delay
between asbestos exposure and the asbestos-related injury is
consistent with medical criteria concerning the latency
periods typically associated with the disease category for
which the claim is being made.
(c) Variations in Latency Periods.--Latency periods under
this section may vary based on the eligible disease or
condition involved.
(d) Rules.--The Asbestos Court shall prescribe rules, based
on the medical literature or other appropriate medical
evidence concerning latency periods, for the purpose of
implementing the criteria used in applying this section.
SEC. 124. MEDICAL CRITERIA REQUIREMENTS.
(a) Definitions.--In this section, the following
definitions shall apply:
(1) 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 on the ILO scale;
or
(B) an x-ray showing bilateral pleural plaques or pleural
thickening, bilateral interstitial fibrosis, or bilateral
interstitial markings.
(2) 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.
(3) 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.
(4) 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.
(5) ILO grade.--The term ``ILO grade'' means the
radiological ratings for the presence of lung or pleural
changes as determined from a chest x-ray, all as established
from time to time by the International Labor Organization.
(6) Pathological evidence of asbestosis.--The term
``pathological evidence of asbestosis'' means proof of
asbestosis based on the pathological grading system for
asbestosis described in the Special Issue of the Archives of
Pathology and Laboratory Medicine, ``Asbestos-associated
Diseases'', Vol. 106, No. 11, App. 3 (October 8, 1982).
(7) Pulmonary function testing.--The term ``pulmonary
function testing'' means spirometry testing that is in
compliance with the quality criteria established from time to
time by the American Thoracic Society and is performed on
equipment which is in compliance with the standards of the
American Thoracic Society for technical quality and
calibration.
(8) Significant occupational exposure.--The term
``significant occupational exposure'' means employment for a
cumulative period of at least 5 years, in an industry and an
occupation in which the claimant--
(A) handled raw asbestos fibers on a regular basis;
(B) fabricated asbestos-containing products so that the
claimant in the fabrication process was exposed on a regular
basis to raw asbestos fibers;
(C) altered, repaired, or otherwise worked with an
asbestos-containing product such that the claimant was
exposed on a regular basis to asbestos fibers; or
(D) was employed in an industry and occupation such that
the claimant worked on a regular basis in close proximity to
workers engaged in the activities described under
subparagraph (A), (B), or (C).
(9) TLC.--The term ``TLC'' means total lung capacity, which
is the volume of air in the lung after maximal inspiration.
[[Page S6604]]
(b) Requirement.--To be eligible for compensation or
medical monitoring reimbursement under this title, a claimant
shall establish that the claimant meets the medical criteria
for 1 of the following categories:
(1) For Level I: Asymptomatic Exposure, the claimant shall
provide--
(A) a diagnosis that meets the requirements of section 122
of a bilateral asbestos-related nonmalignant disease or an
asbestos-related malignancy; and
(B) meaningful and credible evidence of--
(i) 6 months of occupational exposure to asbestos before
December 31, 1982; and
(ii) 5 years cumulative occupational exposure to asbestos.
(2) For Level II: Asbestosis/Pleural Disease A, the
claimant shall provide--
(A) a diagnosis that meets the requirements of section 122
of asbestosis by chest x-rays for which a B-reader report is
furnished showing small irregular opacities of ILO Grade \1/
0\ or greater, or showing bilateral pleural disease of B2 or
greater, or by pathological evidence of asbestosis; and
(B) meaningful and credible evidence of--
(i) 6 months of occupational exposure to asbestos before
December 31, 1982; and
(ii) significant occupational exposure.
(3) For Level III: Asbestosis/Pleural Disease B, the
claimant shall provide--
(A) a diagnosis that meets the requirements of section 122
of asbestosis by chest x-rays for which a B-reader report is
furnished showing small irregular opacities of ILO Grade \1/
0\ or greater, or showing bilateral pleural disease of B2 or
greater, or by pathological evidence of asbestosis;
(B) pulmonary function testing that shows--
(i) TLC less than 80 percent of predicted; or
(ii) FVC less than 80 percent of predicted, and a FEV1/FVC
ratio of not less than 65 percent; and
(C) meaningful and credible evidence of--
(i) 6 months of occupational exposure to asbestos before
December 31, 1982; and
(ii) significant occupational exposure.
(4) For Level IV: Severe Asbestosis, the claimant shall
provide--
(A) a diagnosis that meets the requirements of section 122
of asbestosis by chest x-rays for which a B-reader report is
furnished showing small irregular opacities of ILO Grade \2/
1\ or greater, or by pathological evidence of asbestosis;
(B) pulmonary function testing that shows--
(i) TLC less than 65 percent of predicted; or
(ii) FVC less than 65 percent of predicted, and a FEV1/FVC
ratio greater than 65 percent; and
(C) meaningful and credible evidence of--
(i) 6 months of occupational exposure to asbestos before
December 31, 1982; and
(ii) significant occupational exposure.
(5) For Level V: Other Cancer, the claimant shall provide--
(A) a diagnosis that meets the requirements of section 122
of a primary laryngeal, esophageal, pharyngeal, or stomach
cancer;
(B) evidence of an underlying bilateral asbestos-related
nonmalignant disease; and
(C) meaningful and credible evidence of--
(i) 6 months of occupational exposure to asbestos before
December 31, 1982; and
(ii) significant occupational exposure.
(6) For Level VI: Lung Cancer One, the claimant shall
provide--
(A) a diagnosis that meets the requirements of section 122
of a primary lung cancer; and
(B) meaningful and credible evidence of 6 months of
occupational exposure to asbestos before December 31, 1982.
(7) For Level VII: Lung Cancer Two, the claimant shall
provide--
(A) a diagnosis that meets the requirements of section 122
of a primary lung cancer;
(B) evidence of an underlying bilateral asbestos-related
nonmalignant disease;
(C) meaningful and credible evidence of--
(i) 6 months of occupational exposure to asbestos before
December 31, 1982; and
(ii) significant occupational exposure; and
(D) supporting medical documentation and certification by
or on behalf of the claimant establishing asbestos exposure
as a contributing factor causing the relevant lung cancer.
(8) For Level VIII: Mesothelioma, the claimant shall
provide--
(A) a diagnosis that meets the requirements of section 122
of mesothelioma; and
(B) meaningful and credible evidence of exposure to
asbestos.
SEC. 125. EXPOSURE CRITERIA REQUIREMENTS.
(a) Requirement.--To be eligible to receive compensation
under this title for an asbestos-related injury, the claim
submitted by the asbestos claimant shall contain information
to demonstrate that the claimant meets the minimum exposure
requirements under this subtitle.
(b) Burden of Proof.--
(1) In general.--An asbestos claimant has the burden of
demonstrating meaningful and credible exposure to asbestos
for purposes of this subtitle.
(2) Evidence.--The demonstration under paragraph (1) may be
established by--
(A) an affidavit submitted by the claimant, a coworker of
the claimant, or a family member, in the case of a deceased
claimant;
(B) employment records;
(C) invoices;
(D) construction or other similar records; or
(E) other credible evidence.
(c) Rules.--
(1) Exposure information.--The Asbestos Court shall issue
rules prescribing specific exposure information that shall be
submitted to permit the Court to process an asbestos claim
and prescribing a proof of claim form. Such rules may provide
that a claims examiner or magistrate, as applicable, may
require the submission of other or additional evidence of
exposure when determined to be appropriate and necessary.
(2) Rebuttable presumptions.--The Asbestos Court may
prescribe rules identifying specific industries, occupations
within those industries, time periods, and employment periods
for which significant occupational exposure (as defined under
section 124) may be a rebuttable presumption for asbestos
claimants who provide meaningful and credible evidence that
the claimant worked in that industry and occupation for the
requisite period of time. The Administrator may provide
evidence to rebut this presumption.
Subtitle D--Awards
SEC. 131. AMOUNT.
(a) In General.--An asbestos claimant who meets the
requirements of section 113 shall be entitled to compensation
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
124, other than an injury described in paragraph (2), shall
be eligible for compensation according to the following
schedule:
Scheduled Condition or
Level Disease Scheduled Value
I Asymptomatic Exposure.... $0
II Asbestosis/Pleural $0
Disease A.
III Asbestosis/Pleural $40,000
Disease B.
IV Severe Asbestosis........ $400,000
V Other Cancer............. $200,000
VI Lung Cancer I (smoker)... $50,000
VII Lung Cancer II (non- $400,000
smoker).
VIII Mesothelioma............. $750,000
(2) Medical monitoring.--An asbestos claimant with
asymptomatic exposure or asbestosis/pleural disease A, based
on the criteria under section 124(b)(1), shall only be
eligible for medical monitoring reimbursement.
SEC. 132. MEDICAL MONITORING.
(a) Relation to Statute of Limitations.--The filing of an
asbestos claim 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 111(c).
(b) Costs.--Reimbursable medical monitoring costs shall
include the costs of a claimant not covered by health
insurance for 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. PAYMENTS.
(a) Structured Payments.--
(1) In general.--An asbestos claimant who is entitled to
compensation shall receive such compensation through
structured payments from the Fund, made over a period of not
less than 3 years.
(2) 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.
(3) 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.
(4) 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.--An asbestos claim shall
not be assignable or otherwise transferable under this Act.
(c) Creditors.--An award of compensation 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) Treatment for Internal Revenue Purposes.--All
compensation received under this subtitle shall be deemed to
be compensation for personal physical injuries or physical
sickness under section 104 of the Internal Revenue Code of
1986.
(e) Medicare as Secondary Payer.--No award of compensation
under this title shall be deemed a payment for purposes of
section 1862 of the Social Security Act (42 U.S.C. 1395y).
SEC. 134. REDUCTION IN BENEFIT PAYMENTS FOR COLLATERAL
SOURCES.
(a) In General.--The amount of compensation otherwise
available to an asbestos
[[Page S6605]]
claimant under this title shall be reduced by the amount of
collateral source compensation that the claimant received, or
is entitled to receive, for the asbestos-related injury that
is the subject of the 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.
Subtitle E--En Banc Review
SEC. 141. EN BANC REVIEW.
(a) In General.--
(1) En banc panels.--The chief judge of the Asbestos Court
shall--
(A) establish en banc panels to carry out this subtitle;
and
(B) assign 3 judges of the Asbestos Court to each en banc
panel.
(2) Filing of appeal.--Not later than 30 days after
receiving notice of the decision of a judge under section
114, a claimant may file an appeal for review with an en banc
panel of the Asbestos Court.
(b) De Novo Review.--An Asbestos Court panel shall provide
a de novo review of the magistrate's determination and the
judge's decision.
(c) Representation of the Administrator.--The Administrator
may appoint counsel to represent the interests of the Fund
and the Administrator in all proceedings before a panel,
including oral arguments and the submission of briefs.
(d) Federal Rules of Appellate Procedure.--An Asbestos
Court panel shall apply the Federal Rules of Appellate
Procedures to all proceedings before the panel.
(e) Decision of Panel.--An Asbestos Court panel shall enter
a final decision on an appeal on the earlier date occurring--
(1) not later than 30 days after the date of the conclusion
of oral arguments; or
(2) not later than 60 days after an appeal is filed under
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''
means--
(A) with respect to any nonbankrupt defendant participant
that is an ultimate parent or a person whose entire
beneficial interest is owned on the date of enactment of this
Act, directly or indirectly, by an ultimate parent, that set
of nonbankrupt persons including the ultimate parent and all
of the nonbankrupt persons whose entire beneficial interest
shall be owned on December 31, 2002, directly or indirectly,
by that ultimate parent; or
(B) with respect to any bankrupt defendant participant, the
debtor and all of its direct and indirect majority owned
subsidiaries, whether or not such subsidiaries are debtors.
(2) Debtor.--The term ``debtor''--
(A) means all entities that are subject to a case pending
under any chapter of title 11, United States Code, on the
date of enactment of this Act; 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 final judgment.
(3) 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.
(4) 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.
(5) 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.
(6) 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 any activities or disputes 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 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, including settlement, judgment, defense, or indemnity
costs associated with these claims.
(7) Trust.--The term ``trust'' means all persons or
affiliated groups that formed under section 524(g) of title
11, United States Code, or formed under any plan under
section 1129 of title 11, United States Code, for the purpose
of administering and paying asbestos claims.
(8) Ultimate parent.--The term ``ultimate parent'' means a
person--
(A) that owns, on the date of enactment of this Act, the
entire beneficial interest, directly or indirectly, of at
least 1 other person; and
(B) whose entire beneficial interest is not owned, on
December 31, 2002, directly or indirectly, by any other
single person.
SEC. 202. AUTHORITY AND TIERS.
(a) Assessment.--
(1) In general.--The Administrator shall assess from
defendant participants contributions to the Fund in
accordance with this section based on tiers and subtiers
assigned to defendant participants.
(2) Aggregate contribution level.--The total contribution
required of all defendant participants over the life of the
Fund shall be equal to $45,000,000,000.
(b) Tier I.--The Administrator shall assign to Tier I all
persons that are debtors or affiliated groups that include a
person that--
(1) is a debtor on the date of enactment of this Act or at
any time during the 1-year period preceding that date; and
(2) have paid a prior asbestos expenditure, irrespective of
whether a related case under title 11, United States Code, is
dismissed.
(c) Treatment of Tier I Business Entities in Bankruptcy.--
(1) Defined term.--In this subsection, the term ``bankrupt
business entity'' means a person that is not a natural person
that--
(A) filed 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 Chief Executive Officer, Chief Financial Officer,
or Chief Legal Officer of that business entity certifies in
writing to the bankruptcy court presiding over the business
entity's case, that asbestos liability was neither the sole
nor precipitating cause for the filing under chapter 11.
(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 under section 524(g) of title 11,
United States Code, notwithstanding any other provisions of
this Act, if--
(A) 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 of the effective date of
this Act or such longer period of time approved by the
bankruptcy court for cause shown, the provisions of the 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 successfully confirms a plan of
reorganization, including a trust under section 524(g) of
title 11, United States Code, and channeling injunction that
involves payments by insurers who are otherwise subject to
this Act, an insurer who makes payments to the trust under
section 524(g) of title 11, United States Code, 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 under 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 sections
202(b), 204(b), and 204(g), persons or affiliated groups
shall be assigned to 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.
[[Page S6606]]
(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) Assignments and Costs.--
(1) Permanent assignment.--Subject to section 204(d), after
the Administrator has assigned a person or affiliated group
to a tier under this section, such person or affiliated group
shall remain in that tier 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 from bankruptcy;
(C) the confirmation of a plan of reorganization; or
(D) the sale or transfer of assets to any other person or
affiliated group.
(2) Costs.--The payment of contributions to the Fund by all
persons or affiliated groups that include a person that is a
debtor that is 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 that title 11 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.--Any plan of reorganization
with respect to any debtor assigned to Tier I and any
agreement, understanding, or undertaking by any such debtor
or any third party with respect to the treatment of any
asbestos claim filed before the date of enactment of this Act
and subject to confirmation of a plan under chapter 11 of
title 11, United States Code, shall be superseded in their
entirety by this Act. Any such plan of reorganization,
agreement, understanding, or undertaking by any debtor or any
third party shall be of no force or effect, and no person
shall have any rights or claims with respect to any of the
foregoing.
SEC. 203. SUBTIER ASSESSMENTS.
(a) In General.--
(1) Assessments.--Except as provided under subsections (a),
(b), (d), (f), and (g) of section 204, the Administrator
shall assess contributions to persons or affiliated groups
within Tiers I through VII in accordance with this section.
(2) 2002 revenues.--The audited consolidated revenue for
the year 2002 of each debtor (in this section referred to as
``2002 revenues'') shall include the revenues for year 2002
of the debtor and all of its affiliated groups. The pro forma
revenues of a person or affiliated group that are assigned to
Subtier 3 shall not be included in calculating the 2002
revenues of any debtor that is a direct or indirect majority
owner of such Subtier 3 person or affiliated group.
(3) Gross revenues.--
(A) In general.--For purposes of this section, gross
revenues shall be determined in accordance with generally
accepted accounting principles, consistently applied, using
the amount reported as gross revenues in the annual report
filed with the Securities and Exchange Commission in
accordance with section 13(a)(2) of the Securities Exchange
Act of 1934 (15 U.S.C. 78m(a)(2)) for the year ending
December 31, 2002, or, if applicable, the earlier fiscal year
that ends during calendar year 2002, if such fiscal year is
principally employed by the defendant participant.
(B) Insurance premiums.--Any portion of gross revenues of a
defendant participant that is derived from insurance premiums
shall not be used to calculate the share of that defendant
participant as a manufacturer non-insurer.
(C) Privately-held companies.--If the defendant participant
is not required to file an earnings report with the
Securities and Exchange Commission, gross revenues shall be
the amount that the defendant participant would have reported
as gross revenues in the event that it had been required to
file the report described under subparagraph (A).
(b) Tier I Subtiers.--
(1) In general.--Except as provided under subsections (a),
(b), (d), (f), and (g) of section 204, the Administrator
shall assign each person or affiliated group in Tier I to 1
of 4 Subtiers. Each person or affiliated group shall make
contributions to the Fund as provided under this section.
(2) Subtier 1.--
(A) In general.--All persons that are debtors or affiliated
groups, which include a debtor with prior asbestos
expenditures of $10,000,000 or greater, shall be assigned to
Subtier 1.
(B) Assignment.--Each debtor assigned to Subtier 1 shall
make annual payments based on a percentage of its 2002
revenues.
(C) Payment.--Each debtor assigned to Subtier 1 shall pay
on an annual basis the following with respect to the year of
the establishment of the Fund:
(i) Years 1 through 5, 1.4533 percent of the debtor's 2002
revenues.
(ii) Years 6 through 8, 1.3080 percent of the debtor's 2002
revenues.
(iii) Years 9 through 11, 1.1772 percent of the debtor's
2002 revenues.
(iv) Years 12 through 14, 1.0595 percent of the debtor's
2002 revenues.
(v) Years 15 through 17, 0.9535 percent of the debtor's
2002 revenues.
(vi) Years 18 through 20, 0.8582 percent of the debtor's
2002 revenues.
(vii) Years 21 through 23, 0.7723 percent of the debtor's
2002 revenues.
(viii) Years 24 through 25, 0.6951 percent of the debtor's
2002 revenues.
(3) Subtier 2.--
(A) In general.--All persons that are debtors or affiliated
groups which include a debtor that have no material
continuing business operations but hold cash or other assets
that have been allocated or earmarked for asbestos
settlements shall be assigned to Subtier 2.
(B) Assignment of assets.--Not later than 30 days after the
date of enactment of this Act, each person or affiliated
group assigned to Subtier 2 shall assign all of its assets to
the Fund.
(4) Subtier 3.--
(A) In general.--All persons that are debtors or affiliated
groups that include a debtor, 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 assigned
to Subtier 3.
(B) Assignment of unencumbered assets.--Not later than 30
days after the date of enactment of this Act, each person or
affiliated group assigned to 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 or
affiliated group's total assets, excluding insurance related
assets, less--
(i) all allowed administrative expenses;
(ii) allowed priority claims under section 507 of title 11,
United States Code; and
(iii) allowed secured claims.
(c) Tier II Subtiers.--
(1) In general.--The Administrator shall assign each person
or affiliated group in Tier II to 1 of 5 subtiers, based on
the person's or affiliated group's gross 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
gross revenues assigned to Subtier 1;
(B) those persons or affiliated groups with the next
highest gross revenues assigned to Subtier 2;
(C) those persons or affiliated groups with the lowest
gross revenues assigned to Subtier 5;
(D) those persons or affiliated groups with the next lowest
gross revenues assigned to Subtier 4; and
(E) those persons or affiliated groups remaining assigned
to Subtier 3.
(2) Payment.--Each person or affiliated group within an
assigned subtier shall pay, on an annual basis, the
following:
(A) Subtier 1: $25,000,000.
(B) Subtier 2: $22,500,000.
(C) Subtier 3: $20,000,000.
(D) Subtier 4: $17,500,000.
(E) Subtier 5: $15,000,000.
(d) Tier III Subtiers.--
(1) In general.--The Administrator shall assign each person
or affiliated group in Tier III to 1 of 5 subtiers, based on
the person's or affiliated group's gross 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
gross revenues assigned to Subtier 1;
(B) those persons or affiliated groups with the next
highest gross revenues assigned to Subtier 2;
(C) those persons or affiliated groups with the lowest
gross revenues assigned to Subtier 5;
(D) those persons or affiliated groups with the next lowest
gross revenues assigned to Subtier 4; and
(E) those persons or affiliated groups remaining assigned
to Subtier 3.
(2) Payment.--Each person or affiliated group within an
assigned subtier shall pay, on an annual basis, the
following:
(A) Subtier 1: $15,000,000.
(B) Subtier 2: $12,500,000.
(C) Subtier 3: $10,000,000.
(D) Subtier 4: $7,500,000.
(E) Subtier 5: $5,000,000.
(e) Tier IV Subtiers.--
(1) In general.--The Administrator shall assign each person
or affiliated group in Tier IV to 1 of 4 subtiers, based on
the person's or affiliated group's gross 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 gross revenues
in Subtier 1, those with the lowest gross revenues in Subtier
4. Those persons or affiliated groups with the highest gross
revenues among those remaining will be assigned to Subtier 2
and the rest in Subtier 3.
(2) Payment.--Each person or affiliated group within an
assigned subtier shall pay, on an annual basis, the
following:
(A) Subtier 1: $3,500,000.
(B) Subtier 2: $2,250,000.
(C) Subtier 3: $1,500,000.
(D) Subtier 4: $500,000.
(f) Tier V Subtiers.--
(1) In general.--The Administrator shall assign each person
or affiliated group in Tier V to 1 of 3 subtiers, based on
the person's or affiliated group's gross 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 gross revenues
in Subtier 1, those with the lowest gross
[[Page S6607]]
revenues in Subtier 3, and those remaining in Subtier 2.
(2) Payment.--Each person or affiliated group within an
assigned subtier shall pay, on an annual basis, the
following:
(A) Subtier 1: $1,000,000.
(B) Subtier 2: $500,000.
(C) Subtier 3: $200,000.
(g) Tier VI Subtiers.--
(1) In general.--The Administrator shall assign each person
or affiliated group in Tier VI to 1 of 3 subtiers, based on
the person's or affiliated group's gross 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 gross revenues
in Subtier 1, those with the lowest gross revenues in Subtier
3, and those remaining in Subtier 2.
(2) Payment.--Each person or affiliated group within an
assigned subtier shall pay, on an annual basis, the
following:
(A) Subtier 1: $500,000.
(B) Subtier 2: $250,000.
(C) Subtier 3: $100,000.
(h) Tier VII.--
(1) In general.--Notwithstanding any assignment to Tiers
II, III, IV, V, and VI based on prior asbestos expenditures
under section 204(g), a person shall be assigned to Tier VII
if the person--
(A) is a common carrier by railroad subject to asbestos
claims brought under the Federal Employers' Liability Act (45
U.S.C. 51 et seq.); and
(B) have paid not less than $5,000,000 in settlement,
judgment, defense, or indemnity costs relating to such
claims.
(2) Additional amount.--The contribution requirement for
persons assigned to Tier VII shall be in addition to any
applicable contribution requirement that such person may be
assessed under Tiers II through VI.
(3) Subtier 1.--The Administrator shall assign each person
or affiliated group in Tier VII with gross revenues of not
less than $5,000,000,000 to Subtier 1 and shall require each
such person or affiliated group to make annual payments of
$10,000,000 into the Fund.
(4) Subtier 2.--The Administrator shall assign each person
or affiliated group in Tier VII with gross revenues of less
than $5,000,000,000, but not less than $3,000,000,000 to
Subtier 2, and shall require each such person or affiliated
group to make annual payments of $5,000,000 into the Fund.
(5) Subtier 3.--The Administrator shall assign each person
or affiliated group in Tier VII with gross revenues of less
than $3,000,000,000, but not less than $500,000,000 to
Subtier 3, and shall require each such person or affiliated
group to make annual payments of $500,000 into 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 contribution amount under this provision.
SEC. 204. ASSESSMENT ADMINISTRATION.
(a) Reduction Adjustments.--The Administrator shall assess
contributions based on amounts provided under this subtitle
for each person or affiliated group within Tiers II, III, IV,
V, VI, and VII for the first 5 years of the operation of the
Fund. Beginning in year 6, and every 3 years thereafter, the
Administrator shall reduce the contribution amount for each
defendant participant in each of these tiers by 10 percent of
the amount assessed in the prior year.
(b) Small Business Exemption.--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 contribution requirement under this
subsection.
(c) Procedures.--The Administrator shall prescribe
procedures on how contributions assessed under this subtitle
are to be paid.
(d) Exceptions.--
(1) In general.--Under expedited procedures established by
the Administrator, a defendant participant may seek
adjustment of the amount of its contribution 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. Such determinations shall not prejudice the
integrity of the Fund and shall not be subject to judicial
review.
(2) Financial hardship adjustments.--
(A) In general.--A defendant may apply for an adjustment
based on financial hardship at any time during the life of
the Fund and may qualify for such adjustment by demonstrating
that the amount of its contribution under the statutory
allocation would constitute a severe financial hardship.
(B) Term.--A hardship adjustment under this subsection
shall have a term of 3 years.
(C) Renewal.--A defendant may renew its hardship adjustment
by demonstrating that it remains justified.
(D) Limitation.--The Administrator may not grant hardship
adjustments under this subsection in any year that exceed, in
the aggregate, 3 percent of the total annual contributions
required of all defendant participants.
(3) Inequity adjustments.--
(A) In general.--A defendant may qualify for an adjustment
based on inequity by demonstrating that the amount of its
contribution under the statutory allocation is exceptionally
inequitable when measured against the amount of the likely
cost to the defendant of its future liability in the tort
system in the absence of the Fund.
(B) Term.--Subject to the annual availability of funds in
the Orphan Share Reserve Account established under section
223(e), an inequity adjustment granted by the Administrator
under this subsection shall remain in effect for the life of
the Fund.
(C) Limitation.--The Administrator may grant inequity
adjustments only to the extent that--
(i) the financial condition of the Fund is sufficient to
accommodate such adjustments;
(ii) the Orphan Share Reserve Account is sufficient to
cover such adjustments for that year; and
(iii) such adjustments do not exceed 2 percent of the total
annual contributions required of all defendant participants.
(4) 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 recommendations.
(e) Limitation on Liability.--The liability of each
defendant participant to contribute to the Fund shall be
limited to the payment obligations under this subtitle, and
no defendant participant shall have any liability for the
payment obligations of any other defendant participant.
(f) Consolidation of Contributions.--
(1) In general.--For purposes of determining the
contribution levels of defendant participants, any affiliated
group including 1 or more defendant participants may
irrevocably elect, as part of the submission to be made under
subsection (i), to report on a consolidated basis all of the
information necessary to determine the contribution level
under this subtitle and contribute 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 without limitation with respect to the
assessment of a single annual contribution under this
subtitle for the entire affiliated group;
(B) the ultimate parent of the affiliated group shall
prepare and submit the 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
contribution assessed against the affiliated group, except
that, if the ultimate parent does not pay when due any
contribution for the affiliated group, the Administrator
shall have the right to seek payment of all or any portion of
the entire amount due 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.
(g) Determination of Prior Asbestos Expenditures.--
(1) In general.--For purposes of determining a defendant
participant's prior asbestos expenditure, 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 expenditure, rather than the indemnitee's prior
asbestos expenditure, 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
expenditure 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, any indemnifiable cost related to
the asbestos claim; 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
[[Page S6608]]
any third party on behalf of or for the benefit of the
indemnitee any indemnifiable cost.
(h) Minimum Contributions.--Minimum aggregate contributions
of defendant participants to the Fund in any calendar year
shall be as follows:
(1) For each of the first 5 years of the Fund, the
aggregate contributions of defendant participants to the fund
shall be at least $2,500,000,000.
(2) After the 5th year, the minimum aggregate contribution
shall be reduced by $250,000,000 every 3 years as follows:
(A) For years 6 through 8, $2,250,000,000.
(B) For years 9 through 11, $2,000,000,000.
(C) For years 12 through 14, $1,750,000,000.
(D) For years 15 through 17, $1,500,000,000.
(E) For years 18 through 20, $1,250,000,000.
(F) For years 21 through 23, $1,000,000,000.
(G) For years 24 through 26, $750,000,000.
(i) Procedures to Determine Fund Contribution
Assessments.--
(1) Notice to participants.--Not later than 60 days after
his or her initial appointment, 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
contribution to the Fund; and
(B) publish in the Federal Register a notice requiring any
person who may be a defendant participant (as determined by
criteria outlined in the notice) to submit such information.
(2) Response required.--
(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 Administrator with all the
information requested in the notice at 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.
(3) Notice of initial determination.--
(A) In general.--Not later than 60 days after receiving a
response under paragraph (2), the Administrator shall send
the participant a notice of initial determination assessing a
contribution to the Fund, which shall be based on the
information received from the participant in response to the
Administrator's request for information.
(B) No response; incomplete response.--If no response is
received from the participant, or if the response is
incomplete, the initial determination assessing a
contribution from the participant shall be based on the best
information available to the Administrator.
(4) Confidentiality.--Any Person may designate any
information submitted under this subsection as confidential
commercial or financial information for purposes of the
Freedom of Information Act (5 U.S.C. 552). The Administrator
shall adopt procedures for designating such information as
confidential.
(5) New information.--
(A) Existing participant.--The Administrator shall adopt
procedures for revising initial assessments based on new
information received after the initial assessments are
calculated.
(B) Additional participant.--If the Administrator, at any
time, receives information that an additional person may
qualify as a participant, the Administrator shall require
such person to submit information necessary to determine
whether an initial determination assessing a contribution
from that person should be issued, in accordance with the
requirements of this subsection.
(6) Payment schedule.--Any initial determination issued
under this subsection may allow for periodic payments,
provided that the full annual amount assessed is paid each
year. Each participant shall pay its contribution to the Fund
in the amount specified it the initial determination of
assessment from the Administrator, according to the schedule
specified in the initial determination.
(7) 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.
(8) Rehearing.--A Participant has a right to obtain
rehearing of the Administrator's initial determination
pursuant to section 202.
Subtitle B--Asbestos Insurers Commission
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, after
consultation with--
(A) the majority leader of the Senate;
(B) the minority leader of the Senate;
(C) the Speaker of the House of Representatives; and
(D) the minority leader of the House of Representatives.
(2) Qualifications.--
(A) Expertise.--Members of the Commission shall have
sufficient expertise to fulfill their responsibilities under
this subtitle.
(B) Conflict of interest.--No member of the Commission
appointed under paragraph (1) may be an employee, former
employee, or shareholder of any insurer participant, or an
immediate family member of any such individual.
(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) Date.--The appointments of the members of the
Commission shall be made not later than 60 days after the
date of enactment of this Act.
(4) Period of appointment.--Members shall be appointed for
the life of the Commission.
(5) Vacancies.--Any vacancy in the Commission shall be
filled in the same manner as the original appointment.
(6) Chairman.--The Commission 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 all of the members of the
Commission.
SEC. 212. DUTIES OF ASBESTOS INSURERS COMMISSION.
(a) Determination of Insurer Liability for Asbestos
Injuries.--
(1) In general.--The Commission shall determine the amount
that each insurer participant will be required to pay into
the Fund to satisfy their contractual obligation to
compensate claimants for asbestos injuries.
(2) Allocation agreement.--
(A) In general.--Not later than 30 days after the
Commission issues its initial determination, the insurer
participants may submit an allocation agreement, approved by
all of the insurer participants, to--
(i) the Commission;
(ii) the Committee on the Judiciary of the Senate; and
(iii) the Committee on the Judiciary of the House of
Representatives.
(B) Certification.--The authority of the Commission under
this subtitle shall terminate on the day after the Commission
certifies that an allocation agreement submitted under
subparagraph (A) meets the requirements of this subtitle.
(3) General provisions.--
(A) Aggregate contribution level.--The total contribution
required of all insurer participants over the life of the
Fund shall be equal to $45,000,000,000.
(B) Declining payments.--Since the payments from the Fund
are expected to decline over time, the annual contributions
from insurer participants is also expected to decline over
time. The proportionate share of each insurer participant's
contributions to the Fund will remain the same throughout the
life of the Fund.
(C) Several liability.--Each insurer participant's
obligation to contribute to the Fund is several. There is no
joint liability and the future insolvency of any insurer
participant shall not affect the assessment assigned to any
other insurer participant.
(4) Assessment criteria.--
(A) Mandatory participants.--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 shall be mandatory participants in the
Fund. Other insurers shall be exempt from mandatory payments.
(B) Participant tiers.--Contributions shall be determined
by assigning mandatory insurer participants into tiers, which
shall be determined and defined based on--
(i) net written premiums received from policies covering
asbestos that were in force at any time during the period
beginning on January 1, 1940 and ending on December 31, 1986;
(ii) net paid losses for asbestos injuries compared to all
such losses for the insurance industry;
(iii) net carried reserve level for asbestos claims on the
most recent financial statement of the insurer participant;
and
(iv) future liability.
(C) Payment schedule.--Any final determination of
assessment issued under subsection (b) may allow for periodic
payments, provided that the full annual amount assessed is
paid each year. Each insurer participant shall pay its
contribution to the Fund in the amount specified in the final
determination of assessment from the Commission, according to
the schedule specified in the final determination.
(b) Procedure.--
(1) Notice to participants.--Not later than 30 days after
the initial meeting of the Commission, the Commission shall--
(A) directly notify all reasonably identifiable insurer
participants of the requirement
[[Page S6609]]
to submit information necessary to calculate the amount of
any required contribution to the Fund; 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.--
(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 at 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.
(3) Notice of initial determination.--
(A) In general.--Not later than 120 days after the initial
meeting of the Commission, the Commission shall send each
insurer participant a notice of initial determination
assessing a contribution to the Fund, which shall be based on
the information received from the participant in response to
the Commission's request for information.
(B) No response; incomplete response.--If no response is
received from an insurer participant, or if the response is
incomplete, the initial determination assessing a
contribution from the insurer participant shall be based on
the best information available to the Commission.
(4) Review period.--
(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 assessment received to reflect exceptional
circumstances.
(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 a
contribution from that person should be assessed, in
accordance with the requirements of this subsection.
(C) Revision procedures.--The Commission, shall adopt
procedures for revising initial assessments based on
information received under subparagraphs (A) and (B). Any
adjustments to assessment levels shall comply with the
criteria under subsection (a).
(5) 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) Notice of final determination.--
(A) In general.--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.
(B) Judicial review.--A participant has a right to obtain
judicial review of the Commission's final determination under
title III.
(c) Determination of Relative Liability for Asbestos
Injuries.--The Commission shall determine the percentage of
the total liability of each participant identified under
subsection (a).
(d) Report.--
(1) Recipients.--Not later than 1 year after the date of
enactment of this Act, the Commission shall submit a 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 Court of Asbestos Claims.
(2) Contents.--The report under paragraph (1) shall contain
the amount that each insurer participant is required to
contribute to the Fund, including the payment schedule for
such contributions.
SEC. 213. POWERS OF ASBESTOS INSURERS COMMISSION.
(a) 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.
(b) 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.
(c) 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.
(d) Gifts.--The Commission may not accept, use, or dispose
of gifts or donations of services or property.
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. NONAPPLICATION OF FOIA AND CONFIDENTIALITY OF
INFORMATION.
(a) In General.--Section 552 of title 5, United States Code
(commonly referred to as the Freedom of Information Act)
shall not apply to the Commission.
(b) Confidentiality of Information.--All information
submitted to the Commission shall be privileged and
confidential information and shall not be disclosed to any
person outside the Commission, unless such privilege is
knowingly and intentionally waived by the person submitting
the information. An appeal of an assessment to the Fund under
this subtitle shall be deemed a waiver for the purposes of
this subsection unless the appellee participant makes a
motion for an in camera review of its appeal.
SEC. 216. TERMINATION OF ASBESTOS INSURERS COMMISSION.
The Commission shall terminate 60 days after the date on
which the Commission submits its report under section 212(c).
SEC. 217. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated to
the Commission such sums as may be necessary for fiscal year
2004 to carry out the provisions of this subtitle.
(b) Availability.--Any sums appropriated under the
authorization contained in this section shall remain
available, without fiscal year limitation, until expended.
Subtitle C--Office of Asbestos Injury Claims Resolution
SEC. 221. ESTABLISHMENT OF THE OFFICE OF ASBESTOS INJURY
CLAIMS RESOLUTION.
(a) In General.--There is established the Office of
Asbestos Injury Claims Resolution.
(b) Responsibilities.--The Office shall be responsible
for--
(1) administering the Fund;
(2) providing compensation from the Fund to asbestos
claimants who are determined to be eligible for such
compensation; and
(3) carrying out other applicable provisions of this title
and other activities determined appropriate by the
Administrator.
(c) Administrator.--
(1) Appointment.--The Office shall be headed by an
Administrator who shall be appointed by the President, by and
with the advice and consent of the Senate.
(2) Term; removal.--The Administrator shall serve for a
term of 5 years and may be removable by the President only
for good cause.
SEC. 222. POWERS OF THE ADMINISTRATOR AND MANAGEMENT OF THE
FUND.
(a) General Powers.--The Administrator shall have the
following general powers:
(1) To promulgate such regulations as the Administrator
determines to be necessary to implement the provisions of
this subtitle.
(2) To appoint employees or contract for the services of
other personnel as may be necessary and appropriate to carry
out the provisions of this subtitle, including entering into
cooperative agreements with other Federal agencies.
(3) To make such expenditures as may be necessary and
appropriate in the administration of this subtitle.
(4) To take all actions necessary to prudently manage the
Fund, including--
[[Page S6610]]
(A) administering, in a fiduciary capacity, the assets of
the Fund for the exclusive purpose of providing benefits to
asbestos claimants and their beneficiaries;
(B) defraying the reasonable expenses of administering the
Fund;
(C) investing the assets of the Fund in accordance with
subsection (b)(2); and
(D) 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.
(5) To have all other powers incidental, necessary, or
appropriate to carrying out the functions of the Office.
(b) Requirements Relating to Fund Assets.--
(1) In general.--Amounts in the Fund shall be held for the
exclusive purpose of providing benefits to asbestos claimants
and their beneficiaries and to otherwise defray the
reasonable expenses of administering the Fund.
(2) Investments.--
(A) 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.
(B) 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--
(i) the size of the Fund;
(ii) the nature and estimated duration of the Fund;
(iii) the liquidity and distribution requirements of the
Fund;
(iv) general economic conditions at the time of the
investment;
(v) the possible effect of inflation or deflation on Fund
assets;
(vi) the role that each investment or course of action
plays with respect to the overall assets of the Fund;
(vii) the expected amount to be earned (including both
income and appreciation of capital) through investment of
amounts in the Fund; and
(viii) the needs of asbestos claimants for current and
future distributions authorized under this Act.
SEC. 223. ASBESTOS INJURY CLAIMS RESOLUTION FUND.
(a) Establishment.--There is established in the Office of
Asbestos Injury Claims Resolution, the Asbestos Injury Claims
Resolution Fund, which shall be available to pay--
(1) claims for compensation 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
(c); and
(4) administrative expenses to carry out this subtitle.
(b) Limitations on Contributions by Mandatory
Participants.--The aggregate contributions of all mandatory
participants to the Fund may not exceed $5,000,000,000 in any
calendar year.
(c) Borrowing Authority.--The Administrator is authorized
to borrow, in any calendar year, an amount not to exceed
anticipated contributions to the Fund in the following
calendar year for purposes of carrying out the obligations of
the Fund under this Act.
(d) Guaranteed Payment Account.--
(1) In general.--The Administrator shall establish a
guaranteed payment account within the Fund to insure payment
of the total amount of contributions required to be paid into
the Fund by all participants.
(2) Surcharge.--The Administrator shall impose, on each
participant required to pay contributions into the Fund under
this Act, in addition to the amount of such contributions, a
reasonable surcharge to be paid into the guaranteed payment
account in an amount that the Administrator determines
appropriate to insure against the risk of nonpayment of
required contributions by any such participant.
(3) Procedure.--The surcharge required under this section
shall be paid in such manner, at such times, and in
accordance with such procedures as the Administrator
determines appropriate.
(4) Uses of guaranteed payment account.--Amounts in the
guaranteed payment account shall be used as necessary to pay
claims from the Fund, to the extent that amounts in the Fund
are insufficient to pay such claims due to nonpayment by any
participant.
(5) Enforcement.--The enforcement of the payment of a
surcharge under this subsection may be enforced in the same
manner and to the same extent as the enforcement of a
contribution under section 224.
(e) Orphan Share Reserve Account.--
(1) In general.--To the extent the total amount of
contributions of the participants in any given year exceed
the minimum aggregate contribution under subsection (h), the
excess monies shall be placed in an orphan share reserve
account established within the Fund by the Administrator.
(2) Use of account monies.--Monies from the orphan share
reserve account shall be preserved and administered like the
remainder of the Fund, but shall be reserved and may be used
only--
(A) in the event that a petition for relief is filed and
not withdrawn for the participant under title 11, United
States Code, after the date of enactment of this Act and the
participant cannot meet its obligations under this subtitle;
and
(B) to the extent the Administrator grants a defendant
participant relief for severe financial hardship or exigent
circumstances under this section.
SEC. 224. ENFORCEMENT OF CONTRIBUTIONS.
(a) Default.--If any participant fails to make any payment
in the amount and according to the schedule specified in a
determination of assessment, 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.
(c) Civil Action.--
(1) In general.--In any case in which there has been a
refusal or neglect to pay the liability imposed by the final
determination under section 202 or 212, the Administrator may
bring a civil action in the Federal district court for the
District of Columbia to--
(A) enforce such liability and the lien of the United
States under this section; or
(B) subject any property, of whatever nature, of the
participant, or in which the participant has any right,
title, or interest, to the payment of such liability.
(2) Defense limitation.--In any proceeding under this
subsection, the participant shall be barred from bringing any
challenge to the assessment if such challenge could have been
made during the review period under section 202(b)(4) or
212(b)(4), or a judicial review proceeding under title III.
SEC. 225. ADDITIONAL CONTRIBUTING PARTICIPANTS.
(a) Defined Term.--In this section, the term ``additional
contributing participant'' means any defendant in an asbestos
claim that is not a mandatory participant under subtitle A
and is likely to avoid future civil liability as a result of
this Act.
(b) Assessment.--In addition to contributions assessed
under subtitle A, the Administrator may assess additional
contributing participants for contributions to the Fund. Any
additional contributing participant assessed under this
section shall be treated as a defendant participant for
purposes of procedures and appeals under this Act.
(c) Assessment Limitations.--The Administrator may assess
under subsection (b), over the life of the Fund, an amount
not to exceed $10,000,000,000 from all additional
contributing participants.
TITLE III--JUDICIAL REVIEW
SEC. 301. JUDICIAL REVIEW OF DECISIONS OF THE ASBESTOS COURT.
(a) Exclusive Jurisdiction.--The United States Court of
Appeals for the District of Columbia shall have exclusive
jurisdiction over any action to review a final decision of
the Asbestos Court.
(b) Procedure for Appeals.--
(1) Period for filing appeal.--An appeal under this section
shall be filed not later than 30 days after the issuance of a
final decision by the Asbestos Court.
(2) Transmittal of record.--Upon the filing of an appeal, a
copy of the filing shall be transmitted by the clerk of the
court to the Asbestos Court, and the Asbestos Court shall
file in the court the record in the proceeding, as provided
in section 2112 of title 28, United States Code.
(3) Standard of review.--
(A) In general.--The court shall uphold the decision of the
Asbestos Court if the court determines, upon review of the
record as a whole, that the decision is not arbitrary and
capricious.
(B) Effect of determination.--If the court determines that
a final decision of the Asbestos Court is arbitrary and
capricious, the court shall remand the case to the Asbestos
Court.
(4) Finality of determination.--The decision of the United
States Court of Appeals for the District of Columbia shall be
final, except that the same shall be subject to review by the
Supreme Court of the United States, as provided in section
1254 of title 28, United States Code.
SEC. 302. JUDICIAL REVIEW OF FINAL DETERMINATIONS OF THE
ASBESTOS INSURERS COMMISSION.
(a) Exclusive Jurisdiction.--The United States District
Court for the District of Columbia shall have exclusive
jurisdiction over any action to review a final determination
by the Asbestos Insurers Commission regarding the assessment
of a contribution to the Fund from a participant.
(b) Procedure for Appeal.--
(1) Period for filing appeal.--An appeal under this section
shall be filed not later than 30 days after the issuance of a
final determination by the Commission.
(2) Transmittal of record.--Upon the filing of an appeal, a
copy of the filing shall be transmitted by the clerk of the
court to the Commission.
[[Page S6611]]
(c) Standard of Review.--
(1) In general.--The United States District Court for the
District of Columbia shall uphold the final determination of
the Commission with respect to the assessment of a
contribution to the Fund from a participant if such
determination is not arbitrary and capricious.
(2) Effect of determination.--If the court determines that
a final determination with respect to the amount of a
contribution to the Fund by a participant may not be upheld,
the court shall remand the decision to the Commission, with
instructions to modify the final determination.
(3) No stays.--The court may not issue a stay of payment
into the Fund pending its final judgment.
(4) Finality of determination.--The judgment and decree of
the court shall be final, except that the same shall be
subject to review by the Supreme Court, as provided in
section 1254 of title 28, United States Code.
SEC. 303. EXCLUSIVE REVIEW.
(a) Exclusivity of Review.--An action of the Asbestos Court
or the Asbestos Insurers Commission for which review could
have been obtained under section 301 or 302 shall not be
subject to judicial review in any other proceeding, including
proceedings before the Asbestos Court.
(b) 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.
SEC. 304. PRIVATE RIGHT OF ACTION AGAINST REINSURERS.
(a) In General.--Any insurer participant may file a claim
in the United States District Court for the District of
Columbia against any reinsurer that is contractually
obligated to reimburse such insurer participant for a portion
of costs incurred as a result of payment of asbestos related
claims.
(b) Expedited Procedures.--
(1) In general.--A claim filed under subsection (a) shall
be subject to expedited procedures, as prescribed by the
United States District Court for the District of Columbia.
(2) Evidentiary standard.--The plaintiff shall not recover
in a claim under subsection (a) unless the plaintiff
demonstrates the right to recover by a preponderance of the
evidence.
(3) Final judgment.--A final judgment shall be issued on a
claim filed under subsection (a) not later than 30 days after
such filing.
(c) Appeals.--
(1) In general.--An appeal from a decision under subsection
(b) may be filed with the Court of Appeals for the District
of Columbia.
(2) Standard of review.--The final judgment of the district
court shall be upheld unless the court of appeals finds the
judgment to be arbitrary and capricious.
(3) Final judgment.--A final judgment shall be issued on an
appeal filed under paragraph (1) not later than 30 days after
such filing.
TITLE IV--MISCELLANEOUS PROVISIONS
SEC. 401. FALSE INFORMATION.
Any person who knowingly provides false information in
connection with an assessment of contributions, a claim for
compensation, or an audit under this Act shall be subject
to--
(1) criminal prosecution under section 1001 of title 18,
United States Code; and
(2) civil penalties under section 3729 of title 31, United
States Code.
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) of the enforcement of any payment obligations under
section 204 of the Fairness in Asbestos Injury Resolution Act
of 2003, 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 Contracts.--Section 365 of
title 11, United States Code, is amended by adding at the end
the following:
``(q) If a debtor is a participant (as that term is defined
in section 3 of the Fairness in Asbestos Injury Resolution
Act of 2003), 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 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 2003) 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
subtitle B of title II of the Fairness in Asbestos Injury
Resolution Act of 2003.''.
(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 2003) of the
payment obligations of the debtor under subtitle B of 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 2003); 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 2003; 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 2003 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 2003 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 is
required under section 202 of the Fairness in Asbestos Injury
Resolution Act of 2003 if--
``(A) the trust was formed prior to October 22, 1994; and
``(B) the trust qualifies as a ``trust'' under section 201
of that Act.
``(2) Transfer of trust assets.--
``(A) In general.--Except as provided under subparagraphs
(B) and (C), the assets in any trust established to provide
compensation for asbestos claims (as defined in section 3 of
the FAIR Act of 2003) shall be transferred to the Fund not
later than 6 months after the date of enactment of the FAIR
Act of 2003. 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 223
of such Act, including the payment of claims for compensation
under such Act to beneficiaries of the trust from which the
assets were transferred. After such transfer, each trustee of
such trust shall have no liability to any beneficiary of such
trust.
``(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. Such reserved amount
shall not be greater than 3 percent of the total assets in
the trust and shall not be transferred to the Fund.
``(D) Sale of fund assets.--The investment requirements
under section 222 of the FAIR Act of 2003 shall not be
construed to require the Administrator of the Fund to sell
assets transferred to the Fund under subparagraph (A).
``(E) Liquidated claims.--A trust shall not make any
payment relating to asbestos claims unless such claims were
liquidated before the date of enactment of the FAIR Act of
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 until the assignment required under
paragraph (1) has been made.''.
(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 section 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 2003), the trustee may not avoid a transfer made by the
debtor pursuant
[[Page S6612]]
to its payment obligations under sections 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 2003), the plan provides for the
continuation after its effective date of payment of all
payment obligations under title II of that Act.''.
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 State and Federal laws
insofar as they may relate to any asbestos claim filed under
this Act.
(b) Exclusive Remedy.--The remedies provided under this Act
shall be the exclusive remedy for any asbestos claim under
any Federal or State law.
(c) Bar on Asbestos Claims.--
(1) In general.--No asbestos claim may be pursued in any
State or Federal court, except for enforcement of claims for
which a final judgment is entered before the date of
enactment of this Act.
(2) Preemption.--Any action asserting an asbestos claim in
a court of any State, except actions for which final judgment
are entered before the date of enactment of this Act, is
preempted by this Act.
(3) 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 district court denies the motion to dismiss, it shall
stay further proceedings until final disposition of any
appeal taken under this Act.
(4) Removal.--
(A) In general.--If an action under paragraph (2) 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) ruling on a motion to dismiss based on this Act.
____________________