[Congressional Record Volume 151, Number 47 (Tuesday, April 19, 2005)]
[Senate]
[Pages S3899-S3941]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. FEINGOLD:
S. 838. A bill to allow modified bloc voting by cooperative
associations of milk producers in connection with a referendum on
Federal Milk Marketing Order reform; to the Committee on Agriculture,
Nutrition, and Forestry.
Mr. FEINGOLD. Mr. President, today I am re-introducing a measure that
will begin to restore democracy for dairy farmers throughout the
Nation.
When dairy farmers across the country voted on a referendum six years
ago, perhaps the most significant change in dairy policy in sixty
years, they didn't actually get to vote. Instead, their dairy marketing
cooperatives cast their votes for them.
This procedure is called ``bloc voting'' and it is used all the time.
Basically, a Cooperative's Board of Directors decides that, in the
interest of time, bloc voting will be implemented for that particular
vote. It may serve the interest of time, but it doesn't always serve
the interests of their producer owner-members.
While I think that bloc voting can be a useful tool in some
circumstances, I have serious concerns about its use in every
circumstance. Farmers in Wisconsin and in other States tell me that
they do not agree with their cooperative's view on every vote. Yet,
they have no way to preserve their right to make their single vote
count.
I have learned from farmers and officials at the U.S. Department of
Agriculture (USDA) that if a cooperative bloc votes, individual members
have no opportunity to voice opinions separately. That seems unfair
when you consider what significant issues may be at stake. Co-ops and
their individual members do not always have identical interests.
Considering our nation's longstanding commitment to freedom of
expression, our Federal rules should allow farmers to express a
differing opinion from their co-ops, if they choose to.
The Democracy for Dairy Producers Act of 2005 is simple and fair. It
provides that a cooperative cannot deny any of its members a ballot to
opt to vote separately from the co-op.
This will in no way slow down the process at USDA; implementation of
any rule or regulation would proceed on schedule. Also, I do not expect
that this would often change the final outcome of any given vote. Co-
ops could still cast votes for their members who do not exercise their
right to vote individually. And to the extent that co-ops
[[Page S3900]]
represent farmers' interests, in the majority of cases farmers are
likely to vote the same as their co-ops. But whether they join the co-
ops or not in voting for or against a measure, farmers deserve the
right to vote according to their own views.
I urge my colleagues to return the democratic process to America's
farmers, by supporting the Democracy for Dairy Producers Act.
I ask unanimous consent that the text of my bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 838
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
The Act may be cited as the ``Democracy for Dairy Producers
Act of 2005''.
SEC. 2. MODIFIED BLOC VOTING.
(a) In General.--Notwithstanding paragraph (12) of section
8c of the Agricultural Adjustment Act (7 U.S.C. 608c),
reenacted with amendments by the Agricultural Marketing
Agreement Act of 1937, in the case of the referendum
conducted as part of the consolidation of Federal milk
marketing orders and related reforms under section 143 of the
Agricultural Market Transition Act (7 U.S.C. 7253), if a
cooperative association of milk producers elects to hold a
vote on behalf of its members as authorized by that
paragraph, the cooperative association shall provide to each
producer, on behalf of which the cooperative association is
expressing approval or disapproval, written notice
containing--
(1) a description of the questions presented in the
referendum;
(2) a statement of the manner in which the cooperative
association intends to cast its vote on behalf of the
membership; and
(3) information regarding the procedures by which a
producer may cast an individual ballot.
(b) Tabulation of Ballots.--At the time at which ballots
from a vote under subsection (a) are tabulated by the
Secretary of Agriculture, the Secretary shall adjust the vote
of a cooperative association to reflect individual votes
submitted by producers that are members of, stockholders in,
or under contract with, the cooperative association.
______
By Mr. HARKIN (for himself, Mrs. Murray, Mr. Kennedy, Ms.
Mikulski, Mr. Durbin, Mr. Leahy, Mr. Akaka, Mr. Feingold, Mrs.
Lincoln, Mr. Corzine, and Mr. Kerry):
S. 840. A bill to amend the Fair Labor Standards Act of 1938 to
prohibit discrimination in the payment of wages on account of sex,
race, or national origin, and for other purposes; to the Committee on
Health, Education, Labor, and Pensions.
Mr. HARKIN. Mr. President, on behalf of myself and Senators Murray,
Kennedy, Mikulski, Durbin, Leahy, Akaka, Feingold, Lincoln, Corzine and
Kerry, I am introducing the Fair Pay Act.
April 19th is Equal Pay Day. Even though the Equal Pay Act was passed
more than 40 years ago, women working full time, year-round, still make
only 76 cents for every dollar that a man makes. On April 19th, four
days after tax returns for 2004 are due, U.S. women will finally reach
the earnings mark that their male counterparts achieved by December
31st of last year. April 19th reminds us that the 60 million working
women in this country are suffering economically because equal pay is
still not a reality.
We've got millions of families struggling to make ends meet. The
White House and the Republican House leadership believes a $750 billion
tax cut for the rich is the solution, a permanent one.
I disagree. One way we can put more money in the pockets of working
families is to pay women what they're worth. Nearly 40 years after the
Equal Pay Act became law, women are still paid only 76 cents for every
dollar a man earns.
Working women at all income and education levels are affected by the
wage gap. In 2003, the GAO found that the pay gap continues to affect
women in management and that, for these women, the pay gap has actually
widened since 1995.
Regardless of education, the impact is the same. These women work as
hard as men, but have less money to pay the bills, to put food on the
table, or to save for their retirement or their child's education. That
is simply wrong and it must end. We must close the wage gap once and
for all.
First, we need to do a better job by enforcing and strengthening the
penalties for the law that demands equal pay for equal work. That's why
I support the Paycheck Fairness Act, sponsored by Senator Clinton and
Congresswoman DeLauro.
However, an even more important part of discrimination against women
in the work place is the historic pattern of undervaluing and
underpaying so-called ``women's jobs.''
Millions of women today working in female-dominated jobs--as social
workers, teachers, child care workers and nurses--are ``equivalent'' in
skills, effort, responsibility and working conditions to similar jobs
dominated by men, but these women aren't paid the same as men.
That's what the Fair Pay Act--that Congresswoman Norton and I are
reintroducing today--would address. Unfairly low pay in jobs dominated
by women is un-American, it is discriminatory and our bill would make
it illegal.
Twenty States have ``fair pay'' laws and policies in place for their
employees, including my State of Iowa. And Iowa had a Republican
legislature and Governor when this bill passed into law, so ending wage
discrimination against women is a nonpartisan issue.
Some say we don't need any more laws; market forces will take care of
the wage gap. If we had relied on market forces we would have never
passed the Equal Pay Act, the Civil Rights Act, the Family Medical
Leave Act or the Americans with Disabilities Act.
I first introduced the Fair Pay Act in 1996 after the Iowa Business
and Professional Women alerted me to this problem. And as long as I'm
in the U.S. Senate, I will continue to fight to pass this important
legislation so we can end wage discrimination against women once and
for all.
______
By Mrs. CLINTON (for herself, Mr. Reid, Mr. Kennedy, Mr. Harkin,
Mr. Durbin, Ms. Landrieu, Mr. Corzine, Mr. Leahy, Mr. Schumer,
and Ms. Stabenow):
S. 841. A bill to amend the Fair Labor Standards Act of 1938 to
provide more effective remedies to victims of discrimination in the
payment of wages on the basis of sex, and for other purposes; to the
Committee on Health, Education, Labor, and Pensions.
Mrs. CLINTON. Mr. President, I rise today to discuss the Paycheck
Fairness Act, which I am introducing along with my colleagues Senators
Reid, Kennedy, Harkin, Durbin, Landrieu, Corzine, Leahy, Schumer, and
Stabenow. I also want to acknowledge Senator Daschle for his
longstanding support of this critical issue and Congresswoman DeLauro
for being a champion in the House of Representatives.
This morning I met Brenda Wholey, a plaintiff in the Wal-Mart class
action sex discrimination lawsuit. Brenda came all the way to
Washington from Philadelphia to share her story with us. She worked
hard, put in her time, and watched as time in and time out, men were
promoted above her and compensated with higher salaries.
Too often when we talk about equal pay we talk about numbers--the 76
cents on the dollar that women earn, the 54 cents that Hispanic women
earn. We talk about GAO reports and violations and litigation. But what
this is really about is women like Brenda. Women who get up every day
and go to work so they can provide for their families. Women who work
hard and play by the rules and want to build a better life for their
children. Women like Brenda who just want to be treated fairly.
The Equal Pay Act was an important step forward for women. It gave
women a real chance to be full, equal participants in the workforce and
to earn equal pay for equal work.
In the 42 years since the Equal Pay Act was enacted, women have
shattered so many barriers. And for young women entering the workforce
today, the sky is the limit. But we still have work to do to truly
level the playing field.
That means making sure that employers treat men and women equally in
the workplace. It also means giving women the tools they need to
acquire the pay and recognition they deserve.
That is why I am pleased to be introducing the Paycheck Fairness
Act--a bill that will build on the promise of the Equal Pay Act and
help close the pay gap.
[[Page S3901]]
The Paycheck Fairness Act has three main components.
First, it prevents pay discrimination before it starts. By helping
women strengthen their negotiation skills and providing outreach and
technical assistance to employers to ensure they fairly evaluate and
pay their employees, the Paycheck Fairness Act gives employers the
tools they need to level the playing field between men and women.
Second, the Paycheck Fairness Act creates strong penalties to punish
those who do violate the act. By strengthening the penalties for
employers who violate the Equal Pay Act, this bill sends a strong
message--Equal Pay is a matter to be taken seriously.
And finally, the Paycheck Fairness Act ensures that the Federal
Government, which should be a model employer when it comes to enforcing
Federal employment laws, uses every tool in its toolbox to ensure that
women are paid the same amount as men for doing the same jobs.
From ending the Clinton administration's Equal Pay Matters
Initiative, to halting the collection of data on women workers, to
removing important information about the wage gap from the Department
of Labor's website, to tying its own hands in enforcing the Equal Pay
Act among Federal contractors, the Bush administration has taken this
country backwards in the fight for equal pay. You might say the Bush
administration has taken one giant step backwards for womenkind.
The Paycheck Fairness Act would stop the Bush administration's
rollbacks and make sure, once again, that our Federal Government sets a
standard of excellence for making sure women are paid the same as men.
There is no question that we've come a long way since the Equal Pay
Act became law 42 years ago. And women have earned every step they have
gained in the journey toward equality.
But what has made this country great is that we have never accepted
that ``less discrimination'' is ``good enough.'' The history of our
country is one of constant striving to live up to the ideal of our
founding. And the most basic element of our American character is the
belief that all of us deserve to be treated as equals.
Our country in its history has faced lots of difficult questions,
questions on which reasonable people could disagree. Equal pay is not
one of those hard questions. It is common sense, it is basic fairness.
It is simply right.
And frankly, when it comes to equal pay, we still have a lot of work
to do. Women's compensation still lags behind men's in nearly every
occupation and every field. As the American Association of University
Women study being unveiled today shows us, this fact is not lost on
most Americans. Young, old, Democrat, Republican, male, female--there
is universal recognition that a wage gap exists. Well, the Paycheck
Fairness Act will do something about it.
This issue is about our mothers, our sisters, our daughters. It's
about women being able to earn an equal wage for equal work. It is in
all of our interests to allow women to support their families and to
live with the dignity and respect accorded to fully engaged members of
the workforce.
Equality works for all of us. Now is the time to make sure that we
all work towards equality.
______
By Mr. KENNEDY (for himself, Mr. Specter, Mr. Reid, Mr. Durbin,
Mr. Schumer, Mr. Dodd, Mr. Bingaman, Mr. Harkin, Ms. Mikulski,
Mrs. Murray, Mrs. Clinton, Mr. Byrd, Mr. Inouye, Mr. Biden, Mr.
Leahy, Mr. Sarbanes, Mr. Levin, Mr. Kerry, Mr. Rockefeller, Mr.
Lieberman, Mr. Akaka, Mr. Dorgan, Mrs. Boxer, Mr. Feingold, Mr.
Wyden, Ms. Landrieu, Mr. Bayh, Mr. Carper, Ms. Stabenow, Ms.
Cantwell, Mr. Corzine, Mr. Dayton, Mr. Lautenberg, Mr. Obama,
Mr. Salazar, and Mr. Reed):
S. 842. A bill to amend the National Labor Relations Act to establish
an efficient system to enable employees to form, join, or assist labor
organizations, to provide for mandatory injunctions for unfair labor
practices during organizing efforts, and for other purposes; to the
Committee on Health, Education, Labor, and Pensions.
Mr. KENNEDY. Mr. President, in recognition of our country's
longstanding commitment to basic fairness for the Nation's hard-working
men and women, I am introducing the Employee Free Choice Act. I want to
thank my distinguished colleague, Senator Arlen Specter, for also
supporting this important legislation to protect workers' right to free
association.
The essence of the American dream is the ability to provide a better
life for yourself and your family. At the very heart of that dream are
a good job, a good workplace, good health care, and a good retirement.
Unfortunately, too many families today find that dream increasingly
beyond their reach in today's global economy. Vast numbers of citizens
suddenly find themselves in a race to the bottom against workers in
other countries. Whoever is willing to work for the lowest pay gets the
work.
That is why the labor movement is more important today than ever.
It's not the profits of business that are being shipped overseas.
They're higher than ever. It is the jobs of American workers that are
being outsourced, and they're being outsourced in droves. Hardworking
Americans are paying a high price for this intense new era of worldwide
competition. Our economy is growing, but workers are not benefiting.
Business profits are up 70 percent since 2001, but wages have been
stagnant.
Labor unions have always led the fight for working families--for the
8-hour day and the 40-hour week--for overtime protections--for a fair
minimum wage--for a safe and healthy workplace--for decent health
insurance and a decent pension. Every working American deserves these
protections. But when they try to organize, employers typically respond
with threats and intimidation. They hire union-busting firms and force
employees to listen to anti-union speeches. Companies close down
departments--or even entire operations--to avoid negotiating a union
contract.
These are not isolated abuses. Every year, over 20,000 workers are
illegally fired or discriminated against for exercising their labor
rights. In at least one quarter of all organizing efforts, an employer
illegally fires a worker for supporting the union. For these anti-union
employers, union-busting is just another cost of doing business.
America's workers deserve better, and our democracy deserves better.
That is why I am introducing the Employee Free Choice Act, to protect
the right of workers to choose a union. This bill seeks to level the
playing field for employees attempting to organize a union or negotiate
their first contract. It requires employers to come to the table to
talk. And it puts real teeth in existing protections by strengthening
the penalties for discriminating against workers who support a union.
These protections are long overdue. For too long, Congress has failed
to act against the anti-labor, anti-worker, anti-union tactics now far
too prevalent in the workplace. This bill is an important step towards
ensuring that millions of American workers and their families can do
better in today's economy. I urge my colleagues to join me in this
fight to support the Employee Free Choice Act.
______
By Mr. REID:
S. 845. A bill to amend title 10, United States Code, to permit
retired servicemembers who have a service-connected disability to
receive disability compensation and either retired pay or Combat-
Related Special Compensation and to eliminate the phase-in period with
respect to such concurrent receipt; read the first time.
Mr. REID. Mr. President, I ask unanimous consent that the text of the
bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 845
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. FINDINGS.
Congress finds the following:
(1) For more than 100 years before 1999, all disabled
military retirees were required to fund their own veterans'
disability compensation by forfeiting $1 of earned retired
pay for each $1 received in veterans' disability
compensation.
[[Page S3902]]
(2) Since 1999, Congress has enacted legislation every year
to progressively expand eligibility criteria for relief of
the retired pay disability offset and further reduce the
burden of financial sacrifice on disabled military retirees.
(3) Absent adequate funding to eliminate the sacrifice for
all disabled retirees, Congress has given initial priority to
easing financial inequities for the most severely disabled
and for combat-disabled retirees.
(4) In the interest of maximizing eligibility within cost
constraints, Congress effectively has authorized full
concurrent receipt for all qualifying retirees with 100
percent disability ratings and all with combat-related
disability ratings, while phasing out the disability offset
to retired pay over 10 years for retired members with
noncombat-related, service-connected disability ratings of 50
percent to 90 percent.
(5) In pursuing these good-faith efforts, Congress
acknowledges the regrettable necessity of creating new
thresholds of eligibility that understandably are
disappointing to disabled retirees who fall short of meeting
those new thresholds.
(6) Congress is not content with the status quo.
SEC. 2. SENSE OF CONGRESS.
It is the sense of Congress that military retired pay
earned by service and sacrifice in defending the Nation
should not be reduced because a military retiree is also
eligible for veterans' disability compensation awarded for
service-connected disability.
SEC. 3. ELIGIBILITY FOR PAYMENT OF BOTH RETIRED PAY AND
VETERANS' DISABILITY COMPENSATION FOR CERTAIN
ADDITIONAL MILITARY RETIREES WITH COMPENSABLE
SERVICE-CONNECTED DISABILITIES.
(a) Extension of Concurrent Receipt Authority to Retirees
With Service-Connected Disabilities Rated Less Than 50
Percent.--Section 1414(a) of title 10, United States Code, is
amended to read as follows:
``(a) Payment of Both Retired Pay and Compensation.--
``(1) In general.--Subject to subsection (b), an individual
who is a qualified retiree for any month is entitled to be
paid both retired pay and veterans' disability compensation
for that month without regard to sections 5304 and 5305 of
title 38.
``(2) Qualified retirees.--For purposes of this section, a
qualified retiree, with respect to any month, is a member or
former member of the uniformed services who--
``(A) is entitled to retired pay, other than in the case of
a member retired under chapter 61 of this title with less
than 20 years of service creditable under section 1405 of
this title and less than 20 years of service computed under
section 12732 of this title; and
``(B) is entitled for that month to veterans' disability
compensation.''.
(b) Repeal of Phase-In of Concurrent Receipt of Retired Pay
and Veterans' Disability Compensation.--Section 1414 of title
10, United States Code, is further amended--
(1) by striking subsection (c);
(2) by redesignating subsections (d) and (e) as subsections
(c) and (d), respectively; and
(3) in subsection (d), as redesignated, by striking
subparagraph (4).
(c) Clerical Amendments.--
(1) The heading for section 1414 of title 10, United States
Code, is amended to read as follows:
``Sec. 1414. Members eligible for retired pay who are also
eligible for veterans' disability compensation: concurrent
payment of retired pay and disability compensation''.
(2) The item relating to such section in the table of
sections at the beginning of chapter 71 of such title is
amended to read as follows:
``1414. Members eligible for retired pay who are also eligible for
veterans' disability compensation: concurrent payment of
retired pay and disability compensation.''.
SEC. 4. COORDINATION OF SERVICE ELIGIBILITY FOR COMBAT-
RELATED SPECIAL COMPENSATION AND CONCURRENT
RECEIPT.
(a) Eligibility for Tera Retirees.--Section of section
1413a(c) of title 10, United States Code, is amended by
striking ``entitled to retired pay who--'' and all that
follows and inserting ``who--
``(1) is entitled to retired pay, other than a member
retired under chapter 61 of this title with less than 20
years of service creditable under section 1405 of this title
and less than 20 years of service computed under section
12732 of this title; and
``(2) has a combat-related disability''.
(b) Amendments to Standardize Similar Provisions.--
(1) Clerical amendment.--The heading for paragraph (3) of
section 1413a(b) of title 10, United States Code, is amended
by striking ``rules'' and inserting ``rule''.
(2) Standardization with crsc rule for chapter 61
retirees.--Section 1414(b) of such title is amended--
(A) by striking ``Special Rules'' and all that follows
through ``is subject to'' in paragraph (1) and inserting
``Special Rule for Chapter 61 Disability Retirees.--In the
case of a qualified retiree who is retired under chapter 61
of this title, the retired pay of the member is subject to'';
and
(B) by striking paragraph (2).
SEC. 5. EFFECTIVE DATE.
The amendments made by this Act shall take effect as of
January 1, 2006, and shall apply to payments for months
beginning on or after that date.
______
By Mr. DURBIN:
S. 846. A bill to provide fair wages for America's workers; read the
first time.
Mr. DURBIN. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 846
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
TITLE I--OVERTIME RIGHTS PROTECTION
SEC. 101. CLARIFICATION OF REGULATIONS RELATING TO OVERTIME
COMPENSATION.
Section 13 of the Fair Labor Standards Act of 1938 (29
U.S.C. 213) is amended by adding at the end the following:
``(k)(1) Notwithstanding the provisions of subchapter II of
chapter 5 and chapter 7 of title 5, United States Code
(commonly referred to as the Administrative Procedures Act)
or any other provision of law, any portion of the final rule
promulgated on April 23, 2004, revising part 541 of title 29,
Code of Federal Regulations, that exempts from the overtime
pay provision of section 7 of this Act any employee who would
not otherwise be exempt if the regulations in effect on March
31, 2003, remained in effect, shall have no force or effect
and that portion of such regulations (as in effect on March
31, 2003) that would prevent such employee from being exempt
shall be reinstated.
``(2) The Secretary shall adjust the minimum salary level
for exemption under section 13(a)(1) in the following manner:
``(A) Not later than 60 days after the date of enactment of
this subsection, the Secretary shall increase the minimum
salary level for exemption under subsection (a)(1) for
executive, administrative, and managerial occupations from
the level of $155 per week in 1975 to $591 per week (an
amount equal to the increase in the Employment Cost Index
(published by the Bureau of Labor Statistics) for executive,
administrative, and managerial occupations between 1975 and
2005).
``(B) Not later than December 31 of the calendar year
following the increase required in subparagraph (A), and each
December 31 thereafter, the Secretary shall increase the
minimum salary level for exemption under subsection (a)(1) by
an amount equal to the increase in the Employment Cost Index
for executive, administrative, and managerial occupations for
the year involved.''.
TITLE II--FAIR MINIMUM WAGE
SEC. 111. MINIMUM WAGE.
(a) In General.--Section 6(a)(1) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 206(a)(1)) is amended to
read as follows:
``(1) except as otherwise provided in this section, not
less than--
``(A) $5.85 an hour, beginning on the 60th day after the
date of enactment of this paragraph;
``(B) $6.55 an hour, beginning 12 months after that 60th
day; and
``(C) $7.25 an hour, beginning 24 months after that 60th
day;''.
(b) Effective Date.--The amendment made by subsection (a)
shall take effect 60 days after the date of enactment of this
Act.
TITLE III--SENSE OF THE SENATE REGARDING MULTIEMPLOYER PENSION PLANS
SEC. 121. SENSE OF THE SENATE REGARDING MULTIEMPLOYER PENSION
PLANS.
(a) Findings.--The Senate makes the following findings:
(1) Multiemployer pension plans have been a major force in
the delivery of employee benefits to active and retired
American workers and their dependents for over half a
century.
(2) There are approximately 1,700 multiemployer defined
benefit pension plans in which approximately 9,700,000
workers and retirees participate.
(3) Three-quarters of the approximately 60,000 to 65,000
employers that participate in multiemployer plans have fewer
that 100 employees.
(4) Multiemployer plans allow for greater access and
affordability for smaller employers and pension portability
for their employees as they move from one job to another, and
permit workers to earn a pension where they might otherwise
not be able to do so.
(5) The 2000-2002 drop in the stock market and decline in
equity values has affected all investors, including
multiemployer plans.
(6) The decline in value sustained by multiemployer defined
benefit pension plans have threatened the stability of this
private sector source of secure retirement income.
(7) Participating employers could face onerous excise taxes
and other penalties as a result of the serious, adverse
financial impact due to these market losses.
(8) In 2004, the United States Senate recognized the
severity of this situation and passed by an overwhelmingly,
large bipartisan margin of 86 to 9 temporary relief
provisions for single and multiemployer defined benefit
pension plans.
(b) Sense of the Senate.--It is the sense of the Senate
that the Senate--
(1) expresses its strong support for multiemployer defined
benefit pension plans;
(2) recognizes the importance of an environment in which
multiemployer plans can continue their vital role in
providing benefits to working men and women;
[[Page S3903]]
(3) recognizes that multiemployer pension plan relief must
be designed for the multiemployer labor-relations environment
that supports the plans; and
(4) supports legislation to strengthen and protect the
viability of multiemployer pension plans for the continued
benefit of current and retired members, and their families
and survivors, and to strengthen the ability of all plans to
address funding problems that occur.
______
By Mr. FRIST (for himself and Mr. Lugar):
S. 850. A bill to establish the Global Health Corps, and for other
purposes; to the Committee on Foreign Relations.
Mr. FRIST. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 850
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Global Health Corps Act of
2005''.
SEC. 2. GLOBAL HEALTH CORPS.
Title II of the Public Health Services Act (42 U.S.C. 202
et seq.) is amended by adding at the end the following:
Part D--Global Health Corps
``SEC. 271. DEFINITIONS.
``In this part:
``(1) Agency.--The term `Agency' means the United States
Agency for International Development.
``(2) Candidate.--The term `candidate' means an individual
described in section 273(d).
``(3) Corps.--Except as otherwise provided, the term
`Corps' means the Global Health Corps established under
section 273(a).
``(4) Department.--Except as otherwise provided, the term
`Department' means the Department of Health and Human
Services.
``(5) Director.--The term `Director' means the Director of
the Global Health Corps described in section 272(a)(3).
``(6) Office.--The term `Office' means the Office of the
Global Health Corps established under section 272(a)(1).
``(7) Participant.--The term `participant' means a member
of the Corps as described in section 273(e).
``SEC. 272. OFFICE OF THE GLOBAL HEALTH CORPS.
``(a) Office of the Global Health Corps.--
``(1) Establishment.--There is established within the
Department an Office of the Global Health Corps to assist in
improving the health, welfare, and development of communities
in foreign countries and regions through the provision of
health care personnel, items, and related services.
``(2) Purposes.--The purposes of the Office are--
``(A) to expand the availability of health care personnel,
items, and related services to improve the health, welfare,
and development of communities in select foreign countries
and regions;
``(B) to promote United States public diplomacy in such
foreign countries and regions by matching the needs of such
communities with the services available from the Global
Health Corps;
``(C) to provide for the effective management and
administration of the Global Health Corps; and
``(D) to coordinate, unify, strengthen, and focus the
provision of health care personnel, items, and related
services to foreign countries and regions by departments,
agencies, and offices of the United States, by non-Federal
volunteers, and by private voluntary organizations.
``(3) Director.--The head of the Office shall be the
Director of the Global Health Corps, who shall be appointed
by, and report directly to, the Secretary.
``(b) Functions of the Office.--The functions of the Office
include the following:
``(1) Recruiting individuals to serve in the Corps,
including distributing recruiting information to colleges,
universities, hospitals, clinics, and nongovernmental
organizations. Such individuals may include those with
fellowship or scholarship support from private or public
institutions and organizations.
``(2) Processing applications for enrollment in the Corps.
``(3) Verifying the training and credentials of candidates
seeking to participate in the Corps
``(4) Reviewing requests for Corps personnel and services
made by the head of a United States mission, a foreign
country, a nongovernmental organization, an agency of the
Government of the United States or other person, as
determined by the Secretary.
``(5) Matching the skills of participants with the requests
for health care personnel, items, and related services
described in paragraph (4) to provide such services
effectively and efficiently.
``(6) Providing administrative support and management for
the Corps, including--
``(A) assisting candidates in the application and training
process, as appropriate;
``(B) facilitating the travel of participants to foreign
countries and regions and the work of participants in foreign
countries and regions;
``(C) ensuring participants have appropriate legal
protections and immunities through mechanisms including
bilateral agreements with agencies, organizations, or
countries receiving participants, hiring non-Federal
volunteers as intermittent Federal employees, or providing
participants status as employees of the Government of the
United States for the purposes of such protections, as
appropriate;
``(D) providing strategic guidance and policy for the human
resources management of the Corps;
``(E) carrying out activities to retain participants in the
Corps, including maintaining a database of current and former
participants; and
``(F) ensuring participants have appropriate health,
security, and cultural training prior to arriving in a
foreign country.
``(7) Serving as a liaison between the Corps and other
appropriate persons or government agencies, including--
``(A) leading or participating in interagency working
groups, as appropriate;
``(B) coordinating the activities of the Corps with
activities carried out by other bureaus of the Department and
by the Agency, the Department of Defense, the Department of
State, the Peace Corps, and other executive department, as
appropriate, to advance and promote the purpose and
activities of the Corps as effectively and efficiently as
possible;
``(C) meeting routinely with representatives from the
Agency, the Peace Corps, the National Disaster Medical
System, the Medical Reserve Corps, the Office of Force
Readiness and Deployment, Volunteers for Prosperity, the
Office of Foreign Disaster Assistance of the Agency, the
Bureau of Global Health Affairs of the Agency, the
Coordinator of United States Government Activities to Combat
HIV/AIDS Globally, and others, as appropriate, to improve the
health, welfare, and development of communities in foreign
countries and regions through the provision of health care
personnel, items, and related services on a short-term or
long-term basis; and
``(D) maintaining contact with appropriate international
organizations to carry out the purpose of the Corps and with
foreign governments that are current or prospective
recipients of services provided by the Corps.
``(8) Providing participants with appropriate training and
equipment, including--
``(A) ensuring participants have the appropriate medical
equipment, supplies, and other resources necessary to provide
health care services under austere and challenging conditions
while serving in the Corps; and
``(B) establishing, managing, and directing any training
provided under section 274(e).
``(9) Maintaining contact with participants during their
service in the Corps.
``(10) Establishing performance objectives for the Corps,
and appropriate metrics to assess the performance of the
Corps in achieving its purposes, consistent with this part,
and assessing the performance of the Office in achieving its
purposes, consistent with section 272.
``(11) Submitting to Congress an annual report on the
objectives and metrics described in paragraph (10) and on the
Corps performance in meeting such objectives.
``SEC. 273. ESTABLISHMENT OF THE GLOBAL HEALTH CORPS.
``(a) Establishment.--The Secretary, in consultation with
the Secretary of State, shall establish a Global Health
Corps.
``(b) Purpose.--The purpose of the Corps is to improve the
health, welfare, and development of communities in select
foreign countries and regions, to advance United States
public diplomacy in such locations, and to provide
individuals in the United States with the opportunity to
serve such communities by providing a broad range of needed
health care and related services in such communities.
``(c) Composition of the Corps.--
``(1) In general.--The Corps shall include the following
components:
``(A) Volunteers who are not employees of the Government of
the United States or enrolled in the Peace Corps.
``(B) Employees of the Government of the United States.
``(C) Peace Corps volunteers who participate in the Corps
under section 5A of the Peace Corps Act.
``(D) The Director and any staff of the Office.
``(E) Any other individual that the Director determines is
appropriate to include in the Corps.
``(d) Candidate.--An individual may be a candidate for the
Corps if such individual meets the following:
``(1) Non-federal volunteer.--A individual who--
``(A)(i) is citizen or national of the United States; or
``(ii) is a resident of the United States, at the
discretion of the Secretary;
``(B) is not an employee of the Government of the United
States;
``(C)(i) is a trained health care professional and meets
the educational and licensure requirements necessary to be
such a professional, including a physician, nurse, dentist,
veterinarian, or other professional determined to be
appropriate by the Director; or
``(ii) is a trained health care practitioner or other
professional that meets the educational requirements
determined to be appropriate by the Secretary; and
[[Page S3904]]
``(D) is seeking membership in the Corps and is willing to
work under austere and challenging conditions.
``(2) Federal employee.--A citizen, national, or resident
of the United States who--
``(A) is an employee of the Government of the United
States;
``(B) meets the requirements of clause (i) or (ii) of
paragraph (1)(C); and
``(C) is seeking membership in the Corps, or is designated
as a candidate by the head of the executive department that
employs such citizen, national, or resident.
``(3) Peace corps volunteer.--A citizen or national of the
United States who--
``(A) is a Peace Corp volunteer
``(B)(i) meets the requirements of clause (i) or (ii) of
paragraph (1)(C); or
``(ii) is qualified to participate in the comprehensive
training program established under section 274(e)(2), as
determined by the Director; and
``(C) is seeking enrollment in the Corps.
``(e) Membership in the Corps.--
``(1) In general.--The Director may--
``(A) enroll and accept the services of candidates who are
not employees of the Government of the United States in the
Corps, without regard to section 1342 of title 31, United
States Code;
``(B) designate candidates who are employees of the
Government of the United States as members of the Corps, with
the approval of the head of the executive department that
employs such employee; and
``(C) accept details or assignments of employees of the
Government of the United States to serve in the Corps on a
reimbursable or nonreimbursable basis.
``(2) Application.--The Director shall establish procedures
for individuals to submit applications for enrollment in the
Corps.
``SEC. 274. FUNCTIONS AND TRAINING OF THE CORPS.
``(a) In General.--Participants shall be available to
provide the services described in subsection (b) to
individuals and communities in the locations described in
subsection (c).
``(b) Services.--Subject to subsection (f), the services
referred to in subsection (a) are services, including
assistance and training, provided to individuals and
communities to carry out the purpose of the Corps, including
the provision of--
``(1) health care items and related services, including
dental care;
``(2) preventive care, treatment, and services;
``(3) veterinary and related services;
``(4) sanitation, hygiene, food preparation, and clean
water training;
``(5) disease surveillance and basic health care services
to individuals and communities affected by diseases or
illnesses as identified by the Director;
``(6) education and training related to the services
described in paragraphs (1) through (5);
``(7) education and training to local persons to improve
health care outcomes, and to assist in the development of
local and indigenous health care delivery capacity and self-
sufficiency; and
``(8) other health care items and related services
determined to be appropriate by the Director, including
health care training, health systems development, and
technical support.
``(c) Locations.--The Director is authorized to provide,
with the concurrence of the Secretary of State, the services
described in subsection (b) to individuals and communities in
a foreign country or region if--
``(1) the Secretary of State has determined that such
country or region is in need of such services; and
``(2) the Secretary of State has determined that the
provision of such services may help promote a better
understanding of the people of the United States on the part
of the peoples served in such a foreign country or region.
``(d) Placement of Participants.--
``(1) In general.--The Director shall decide on the
placement of a participant in a foreign country or region
described in subsection (c) after--
``(A) determining that the location or organization is in
need of the services provided by the Corps in which the
participant has expertise and training;
``(B) consulting with the Secretary of State on the extent
to which the placement of the participant in a particular
location or organization advances the foreign policy and
public diplomacy objectives of the United States; and
``(C) considering the skills, qualifications, and
availability of the participant.
``(2) Required consultation.--The Director shall, prior to
placing a participant in a foreign country or region, consult
with--
``(A) the head of the executive department that employs the
participant, if the participant is an employee of the
Government of the United States;
``(B) the United States Ambassador to such foreign country;
and
``(C) the head of any executive department that is
providing health care or related services in such foreign
country.
``(e) Training.--
``(1) Requirement.--The Secretary shall ensure that
appropriate training programs are available, including the
comprehensive training program described in paragraph (2) and
appropriate health, security, and cultural training for
participants, to prepare participants to provide the services
described in subsection (b).
``(2) Comprehensive training program.--
``(A) Establishment.--The Director shall establish and
carry out a program, either separately or jointly with a
Federal, public, or private sector health care provider or
health care institution, to provide members of Corps selected
by the Director training in a variety of health care
disciplines, including basic medical, dental, public health,
nursing, epidemiological services, and veterinary care.
``(B) Training provided.--The program established under
subparagraph (A) shall be designed by the Director, in
consultation with the Secretary, Administrator of the Agency,
the Secretary of Agriculture, the Secretary of Defense, the
Secretary of State and the Director of the Peace Corps, to
provide comprehensive basic training for a period of not more
than 6 months to each participant who is a member of the
Peace Corps and each other participant that the Director
determines is appropriate to enable such participant to
provide the services described in subsection (b), including
training in a variety of health care disciplines, including
basic medical, dental, public health, nursing,
epidemiological service, and veterinary care.
``(C) Reimbursement.--The Director is authorized to permit
a participant who is not a member of the Peace Corps to
receive training in the program established under
subparagraph (A) on a reimbursable basis, unless determined
otherwise by the Secretary.
``(D) Program model.--The program established under
subparagraph (A) should be modeled on successful public and
private programs, including the Joint Special Operations
Medical Training Center program conducted by the Department
of Defense and those conducted by various medical and nursing
schools around the country.
``(E) Prohibition on participation in similar training.--A
participant may not participate in the Joint Special
Operations Medical Training Center program conducted at Fort
Bragg, North Carolina.
``(3) Service requirement.--
``(A) Non-federal volunteers.--A participant who is not an
employee of the Government of the United States or a Peace
Corps volunteer and who attends a training program
established under paragraph (1), other than the training
program established under paragraph (2), shall be obligated
to complete the amount of service in the Corps, commensurate
with the type and amount of training received, that the
Secretary determines is appropriate.
``(B) All participants.--A participant who attends the
training program established under paragraph (2) shall be
obligated to complete the amount of service in the Corps,
commensurate with the type and amount of training received,
that the Secretary deems appropriate. Such service shall be
at the discretion of the Director, during any 5-year period,
and in a manner consistent with this part and with the
concurrence of the Director of the Peace Corps if such
participant is a Peace Corps volunteer.
``(f) Prohibition.--A member of the Corps may not carry out
an activity under this part if--
``(1) section 104(f) of the Foreign Assistance Act of 1961
(22 U.S.C. 2151b(f)) prohibits providing funding for such
activity; or
``(2) any provision of the annual Foreign Operations,
Export Financing, and Related Programs Appropriations Act
that relates to abortion prohibits providing assistance for
such activity.
``SEC. 275. PERSONNEL AND ADMINISTRATIVE PROVISIONS.
``(a) Compensation of Participants.--
``(1) Non-federal volunteers.--A participant who is not an
employee of the Government of the United States or a Peace
Corps volunteer shall serve in the Corps without compensation
from the Government of the United States to either the
participant or to any other person.
``(2) Federal employees.--A participant who is an officer
or employee of the Government of the United States shall
serve without compensation in addition to that received for
their services as officers or employees of the United States.
``(3) Peace corps volunteers.--A participant who is a Peace
Corps volunteer shall serve without compensation in addition
to that received for their services in the Peace Corps under
the Peace Corps Act (22 U.S.C. 2501 et seq.).
``(b) Travel Expenses.--
``(1) Non-federal volunteers.--The Director may provide a
participant who is a not an employee of the Government of the
United States or a Peace Corps volunteer travel expenses,
excluding 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 such
participant is serving in the Corps.
``(2) Federal employees.--The Director shall provide a
participant who is an employee of the Government of the
United States 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 Corps.
``(3) Peace corps volunteers.--The Director may not provide
a participant who is a Peace Corps volunteer travel expenses
in addition to such expenses provided for under the Peace
Corp Act (22 U.S.C. 2501 et seq.).
``(c) Applicability of Laws to Non-Federal Volunteers.--
[[Page S3905]]
``(1) In general.--A member of the Corps who is not an
employee of the Government of the United States or a Peace
Corps volunteer may not be considered an employee of the
Government of the United States, except for the purposes of--
``(A) section 272(b)(6)(C);
``(B) chapter 81 of title 5, United States Code (relating
to compensation for work-related injuries); and
``(C) chapter 11 of title 18, United States Code (relating
to conflicts of interest).
``(2) Volunteer protection act of 1997.--
``(A) Volunteer status.--A member of the Corps who is not
an employee of the United States or a Peace Corps volunteer
shall be deemed to be a volunteer for a nonprofit
organization or governmental entity for the purposes of the
Volunteer Protection Act of 1997 (42 U.S.C. 14501 et seq.).
``(B) Inapplicability of exceptions.--Section 4(d) of such
Act (42 U.S.C. 14503(d)) may not apply to a member of the
Corps who is not an employee of the United States or a Peace
Corps volunteer.
``(d) Terms and Conditions.--With respect to the membership
of a candidate in the Corps, the terms and conditions of the
enrollment, training, compensation, hours of work, benefits,
leave, termination, and all other terms and conditions of the
service of such participant shall be exclusively those set
forth in this part and those consistent with such terms and
conditions which the Secretary may prescribe.
``(e) Termination.--The membership in the Corps of a
participant may be terminated at any time at the pleasure of
the Director.
``SEC. 276. PUBLIC HEALTH SERVICE MEMBERS IN THE GLOBAL
HEALTH CORPS.
``(a) Authority To Enroll.--A member of the Service may
enroll in the Corps and provide services as a member of the
Corps described in this part.
``(b) Minimum Number.--Not later than 2 years after the
date of enactment of the Global Health Corps Act of 2005, the
Secretary shall designate not less than 500 employees of the
Service as members of the Corps and make such employees
available to provide non-emergency, routine health care items
and related services in the Corps, as the Secretary and the
Secretary of State determine appropriate.
``(c) Rapid Response Capacity.--Not later than 2 years
after the date of enactment of the Global Health Corps Act of
2005, the Secretary shall establish within the Commissioned
Corps of the Service a rapid response capacity, consisting of
not less than 250 individuals, to provide health care items
and related services in foreign countries or regions to carry
out the purpose of the Corps on short notice, in coordination
with the Secretary of State. A member of the Commissioned
Corps who is included in such rapid response capacity shall--
``(1) be trained, equipped, and able to deploy to a foreign
country or region within 72 hours of notification of such
deployment; and
``(2) be considered a participant in the Corps.''.
SEC. 3. PEACE CORPS VOLUNTEERS IN THE CORPS.
The Peace Corps Act (22 U.S.C. 2501) is amended by
inserting after section 5 the following new section:
``GLOBAL HEALTH CORPS VOLUNTEERS
``Sec. 5A. (a) Volunteers are authorized to participate in
the Global Health Corps, established in section 273 of the
Public Health Service Act.
``(b) Not later than 2 years after the date of enactment of
the Global Health Corps Act of 2005, the Director of the
Peace Corps shall make available not less than 250 positions
within the Peace Corps for volunteers to serve in the Global
Health Corps.
``(c) A volunteer may apply and be approved for enrollment
in the Global Health Corps at such time and in such manner as
the Director of the Peace Corps and the Secretary of Health
and Human Services require.
``(d) A volunteer who is enrolled in the Global Health
Corps shall receive training under section 274(e)(2) of the
Public Health Service Act, unless such volunteer meets the
requirements of clause (i) or (ii) of section 273(d)(1)(C) of
such Act.
``(e) A volunteer who is enrolled in the Global Health
Corps shall provide services as a member of the Global Health
Corps as described in part D of title II of the Public Health
Service Act.
``(f) A volunteer who is enrolled in the Global Health
Corps shall be subject to all other terms and conditions of
service under this Act.''.
SEC. 4. VOLUNTEERS FOR PROSPERITY.
(a) Finding.--Congress finds that the Volunteers for
Prosperity program, organized pursuant to Executive Order
13317 (42 U.S.C. 12501 note), is a model to link non-Federal
volunteers with non-Federal organizations to carry out
important initiatives.
(b) Requirement for Corps Initiative.--The head of the
Volunteers for Prosperity program shall establish an
initiative known as the Health Care for Peace initiative
within such program for the purpose of making available non-
Federal volunteers to participate in the Global Health Corps
established under section 273 of the Public Health Service
Act.
SEC. 5. PUBLIC-PRIVATE PARTNERSHIPS.
(a) In General.--Under the authority of subsections (a) and
(b) of section 601 of the Foreign Assistance Act of 1961 (22
U.S.C. 2351) and section 635(d) of such Act (22 U.S.C.
2395(d)), the Director of the Global Health Corps may
establish private-public partnerships in furtherance of the
purposes of this Act and the Global Health Corps. Such
partnerships may include activities such as--
(1) corporate volunteer programs;
(2) training;
(3) transportation;
(4) field support;
(5) volunteer identification;
(6) lodging;
(7) communications;
(8) fellowships and scholarships; and
(9) other activities relevant to the mission of the Global
Health Corps or the operation of the Office of the Global
Health Corps, as determined by the Director of the Global
Health Corps.
(b) Consultation.--The Director of the Global Health Corps
shall consult with the Global Development Alliance
Secretariat at the United States Agency for International
Development to develop a model for such public-private
partnerships and gain information on established best
practices.
SEC. 6. REPORT ON IMPLEMENTATION.
Not later than 120 days after the date of enactment of this
Act, the Secretary of Health and Human Services shall submit
to Congress a detailed plan for the implementation of this
Act and the amendments made by this Act. Such report shall
include recommendations for improving the functioning and
activities of the Global Health Corps, including the
feasibility, cost, utility, and desirability of establishing
incentives to recruit candidates into the Corps.
SEC. 7. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this Act and the amendments made by
this Act.
______
By Mr. SPECTER (for himself, Mr. Leahy, Mr. Hatch, Mrs.
Feinstein, Mr. Grassley, Mr. DeWine, Mr. Baucus, and Mr.
Voinovich):
S. 852. A bill to create a fair and efficient system to resolve
claims of victims for bodily injury caused by asbestos exposure, and
for other purposes; to the Committee on the Judiciary.
Mr. SPECTER. Mr. President, I have sought recognition to introduce
legislation which may be cited as the Fairness In Asbestos Injury
Resolution Act of 2005. I do so on behalf of Senator Leahy, the ranking
member of the Judiciary Committee, Senator Hatch, the former chairman
of the committee, Senator Feinstein, Senator DeWine, Senator Baucus,
Senator Voinovich and Senator Grassley. There are others in the wings
waiting to cosponsor, but this is a very complex bill, ranging over 300
pages. Quite a number of my colleagues have told me they are supportive
of the bill and are making the final check to determine cosponsorship.
Several months ago, a discussion draft was circulated. Last week,
after a great many refinements had been added, the current bill was
circulated. There have been a couple of relatively minor changes which
have been added to this bill, but it is essentially the same as the
circulation bill which was submitted a week ago.
I compliment my distinguished colleague, Senator Leahy, the ranking
member, for his diligence, hard work and cooperation in structuring a
bill with a great many moving parts, which he and I have been able to
agree upon on the core principles.
We have adopted a position that we will work jointly to retain these
core provisions. We are open to suggestions and amendments and
modifications which do not impact on these core provisions. But it is a
very difficult matter to structure an asbestos bill which can pass the
Senate. There are 55 Republicans. You need at least five Democrats. It
has to be a balanced bill, and it is our submission that this is a
balanced bill.
A great deal of credit is due to senior Federal Judge Edward R.
Becker, who until May 5, his 70th birthday, in the year 2003 was the
chief judge of the Court of Appeals for the Third Circuit who wrote the
opinion on the asbestos litigation which reached the Supreme Court of
the United States.
When the Judiciary Committee passed out of committee legislation on
asbestos in July of 2003, the distinguished Presiding Officer was on
the committee at that time and can attest to the 12-hour marathon
session we had. We did so significantly along party lines to move the
legislation along, recognizing it had many problems. At my request,
Judge Becker then convened the so-called stakeholders in his chambers
in Philadelphia for 2 days in August, the stakeholders being identified
as the manufacturers, the AFL-CIO, the insurance industry, and the
trial lawyers.
[[Page S3906]]
To recite the power and diversity and difference of opinion of these
groups is to suggest the complication of bringing the stakeholders
together on a piece of complex legislation.
Following those 2 days of meetings in Judge Becker's chambers, we
have had some 36 sessions in my conference room here in the Hart Senate
Office Building where Judge Becker presided and I assisted, and we
worked out a great many of the issues to the satisfaction of the
stakeholders.
One of the core provisions of the bill is that there is a trust fund
of $140 billion. It is always difficult on projections to be absolutely
certain, but I believe there is a very high probability that this trust
fund will be adequate to pay all of the claims.
In very extensive testimony from Goldman Sachs on very carefully
calculated projections, it was projected that the total cost of
payments would be $118 billion. There is a considerable cushion between
$118 billion and $140 billion. If for some unexpected reason the trust
fund is insufficient, then those who have been injured by exposure to
asbestos will be able to revert to jury trials.
All of us are mindful of the very substantial factor when a claimant
gives up a constitutional right to jury trial, but in a program
structured largely along lines of workmen's compensation, it is our
conclusion that it is a fair exchange.
When you find that there are many people who are suffering deadly
ailments from asbestos, mesothelioma and other deadly injuries, who are
not being compensated, this is a way to compensate those individuals
whose companies have gone bankrupt. Over 75 companies have gone
bankrupt at a tremendous impact to the economy. This will relieve the
companies of the onerous threat of bankruptcy--and they are taking
additional companies with rapidity.
On one development which candidly surprised me, last week, when we
circulated the draft bill a week ago today, there was a 25-point bump
in the stock market for asbestos companies. When we had a meeting later
in the day and deferred production of the bill, the stock market went
down to some extent. There is some consideration that the stock market
is wiser even than Congress. Perhaps that would take a whole lot. But
the reaction of the stock market is an indication of the importance of
resolving this asbestos issue in order to give the economy a start.
The hour is late. There are others who wish to seek recognition. The
distinguished chairman of the Appropriations Committee is waiting
through this nongermane part of his business, and the distinguished
Democratic leader, I know, wants to seek recognition.
I shall include the remainder of my statement in the Record and ask
unanimous consent that it be printed.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Mr. President, I have sought recognition to introduce new
legislation, the Fairness in Asbestos Injury Resolution Act
of 2005, FAIR Act, the successor to S. 1125 and S. 2290, the
FAIR Acts of 2003 and 2004. My colleagues Senator Frist,
Senator Hatch and Senator Leahy deserve enormous credit for
the drafting of these acts and for the development of this
legislation. There is a will in the Senate to enact
legislation that should put an end to the ongoing rash of
bankruptcies, growing monthly; diverting resources from those
who are truly sick; endangering jobs and pensions; and
creating the worst litigation crisis in the history of the
American judicial system. The Congress plainly wants a more
rational asbestos claims system, and I believe that this
legislation offers a realistic prospect of accomplishing that
result.
This legislation provides substantial assurances of
acceptable compensation to asbestos victims and substantial
assurances to manufacturers and insurers to resolve, with
finality, asbestos claims. For more than two decades, a
solution to the asbestos crisis has eluded Congress and the
courts. Seventy-four companies have gone bankrupt, thousands
of individuals who have been exposed to asbestos have deadly
diseases--mesothelioma and other such ailments--and are not
being compensated. According to The Rand Institute for Civil
Justice, ``about two-thirds of the claims are now filed by
the unimpaired, while in the past they were filed only by the
manifestly ill.'' According to Rand, the number of claims
continues to rise, with over 600,000 claims filed already and
300,000 pending. The number of asbestos defendants also has
risen sharply, from about 300 in the 1980s, to more than
8,400 today and most are users of the product, not its
manufacturers. These companies span 85 percent of the U.S.
economy and nearly every U.S. industry, and include
automakers, shipbuilders, textile mills, retailers, insurers,
shipbuilders, electric utilities and virtually any company
involved in manufacturing or construction in the last 30
years.
Asbestos leaves many victims in its wake. First and
foremost, the sick and their families have suffered. But the
flawed asbestos litigation system not only hurts the sick and
their chance at receiving fair compensation, but also claims
other victims. These include employees, retirees and
shareholders of affected companies whose jobs, savings and
retirement plans are also jeopardized by the tide of asbestos
cases. With asbestos litigation affecting so many companies,
this also impacts the overall economy, including jobs,
pensions, stock prices, tax revenues and insurance costs.
According to a 2002 study by Nobel laureate Joseph Stiglitz,
asbestos bankruptcies have cost nearly 60,000 workers their
jobs and $200 million in lost wages. Employees' retirement
funds have shrunken by 25 percent.
In July 2003, the Judiciary Committee voted out S. 1125, a
bill with many problems, largely along party lines, in an
effort to move the legislation. S. 1125 created the basic
structure of the legislation, and made a huge stride in
working out the medical criteria. However, the bill
floundered on other issues. In August 2003, at my request,
Judge Edward R. Becker, a Federal judge for 34 years,
convened in his chambers in Philadelphia for 2 days the so-
called stakeholders--manufacturers, labor, AFL-CIO, insurers
and trial lawyers--to determine if some common ground could
be found. Until the preceding May, Judge Becker had been the
chief judge of the Third Circuit Court of Appeals and wrote
the opinion in the asbestos class action suit which was
affirmed by the U.S. Supreme Court.
From September 2003 through January 2005, there were some
36 stakeholder meetings held in my conference room, with
Judge Becker as a pro-bono mediator, usually attended by
25 to 40 representatives and sometimes over 75 present. I
have also met 15 times since January with various
officials from the administration, members of the Senate
Judiciary Committee and their staffs, the Senate
leadership and other various senators all in an effort to
move this bill forward. Judge Becker and I have sought an
equitable bill which took into account, to the maximum
extent possible, the concerns of the stakeholders and to
get their input on drafting of the bill. After analysis
and deliberation, we found we could accommodate many of
the competing interests.
This process commenced with the blessing of Chairman Hatch
and Ranking Member Leahy of the Judiciary Committee. This
extended process allowed the stakeholders an extraordinary
``hearing'' process and really amounted to the longest
``mark-up'' in Senate history although not in the customary
framework. We have had the cooperation of many Senators.
Senators Hatch and Leahy have had representatives at all the
meetings. The majority leader, Senator Hatch, and Senator
Leahy have addressed this ``working group'' at our meetings.
Senator Hatch and Senator Leahy's representatives have been
active participants at every meeting, as well as the members
of the staffs of Senators Baucus, Biden, Brownback, Burns,
Carper, Chafee, Chambliss, Coburn, Cornyn, Craig, DeWine,
Dodd, Durbin, Feingold, Feinstein, L. Graham, Grassley,
Hagel, Kennedy, Kohl, Kyl, Landrieu, Levin, Lincoln, Murray,
Ben Nelson, Pryor, Schumer, Sessions, Snowe, Stabenow, and
Voinovich.
The concept of a trust fund is an outstanding idea. Senator
Hatch deserves great credit for moving the legislation in the
direction of a trust fund with a schedule of payments
analogous to workers' compensation so the cases would not
have to go through the litigation process. Under this
proposal, the Federal Government would establish a national
trust fund privately financed by asbestos defendant companies
and insurers. No taxpayer money would be involved. Asbestos
victims would simply submit their claims to the fund.
Claimants would be fairly compensated if they meet medical
criteria for certain illnesses and show past asbestos
exposure. The trust fund would guarantee compensation for
impaired victims.
Through the series of meetings with Judge Becker, we have
wrestled with and have been able to solve a number of very
complex issues. The size of the trust fund was always a
principal issue of dispute, starting at $108 billion. The
manufacturers/insurers raised their offer to $140 billion.
Last October, Majority Leader Frist and then-Democratic
Leader Daschle agreed to $140 billion. When Senator Frist and
Senator Daschle, in an adversarial context, agreed to the
adequacy of the $140 billion figure, it is difficult to
exceed it even though the AFL-CIO did not contemporaneously
agree.
It is not possible to say definitely what figure would be
adequate because it depends on the uncertainty of how many
claims will be filed. There is support for the adequacy of
the $140 billion figure from reputable projections. But they
are, admittedly, only projections.
The real safety valve, if the fund is unable to pay claims,
is for the injured to have the ability to go back to court if
the system is not operational and able to pay exigent health
claims within 9 months after enactment, and all other valid
claims within 24 months of enactment. Upon reversion to the
tort system, the bill provides that claimants may file suits
either in Federal court or
[[Page S3907]]
State court in the state in which the plaintiff resides or
State court in the state where the asbestos exposure took
place.
The claimants object to any hiatus between access to the
courts and an operating system; but the reality is that court
delays are customarily longer than the delay structured in
this system. The defendants and insurers object saying it
is too short a time frame, but they have the power to
expedite the process by promptly paying their assessments.
I am confident that there will be no problem in
administering the system and processing the claims. The
leaders of the Manville Trust and the Rand Institute study
and point out that the volume of claims can be efficiently
administered by the fund administrator using a technique
developed by the Manville Trust and other similar claims
facilities that have processed asbestos claims for many
years. The Manville Trust has processed as many as 150,000
claims per year. The number of exigent claims anticipated
in the first 9 months of the fund is vastly smaller and
even the total number of claims anticipated in the first
24 months is significantly less that which the Manville
Trust has handled in a comparable period. Additionally,
the bill provides the administrator with the option to
contract out the exigent claims to a claims facility for
expedited processing under the standards of the fund on a
voluntary basis. The short time frame will prod the system
to become operative at an early date. The bill sends the
claims back to the fund as soon as it is certified
operational with a credit for any payment of the scheduled
amount.
Similarly, the defendants seek a commitment that the
legislation will bar return to the courts for at least 7\1/2\
years. It is hard to see how the substantial fund would be
expended in a lesser period. Here again, the legislation
gives the defendant substantial assurances that the system
will last at least 7\1/2\ years. If it collapses, the
claimants should not bear the burden, but should reclaim
their constitutional right to a jury trial. However, sunset
cannot take place before there is an extensive and rigorous
``program review.'' This would give the administrator an
opportunity re-fashion the program to compensate for any
major shortcomings.
The claimants sought $60 billion in startup contributions
within 5 years and the defendants countered with a maximum of
$40 billion. The fund's borrowing power should enable it to
borrow at least the balance of $20 billion because of the
defendants continuing substantial financial commitments. Here
again, the bill meets the standard of substantial assurances,
albeit not perfect certainty, that $60 billion will be in
hand within the first 5 years.
A key issue for the claimant has been that of workers'
compensation subrogation. This issue is important because the
value of an award to the claimant depends on whether the
claimant may have to pay a substantial amount of it to
others. While the precise picture is different from State to
State, in general, workers' compensation laws give
employers--and their insurance carriers--subrogation rights
against third-party tortfeasors and a lien on the injured
employee's recovery from a third-part tortfeasor. This is a
big issue because workers' compensation covers the employee's
medical costs.
I closely examined and considered including a proposal that
would have called for a so-called workers' compensation
``holiday.'' Such a proposal would have provided for a
``holiday'' from worker's compensation payments during the
period of receipt of payments from trust fund except to the
extent that the compensation would exceed them, with a waiver
of past and future subrogation. However, as each State has
different workers' compensation laws and I concluded that
such a proposal may go beyond the practice in a number of
States, leaving some claimants with a significantly reduced
award.
Furthermore, while not undisputed like some other matters
on this legislation, there is some significant basis in the
assertion by claimants that the award values in the bill were
designed with the concept in mind that there would be no
liens or rights of subrogation against the claimants based on
workers' compensation awards and health insurance payments.
Therefore, in the final analysis, it has been determined
that to be fair to victims, claimants should be allowed to
retain and receive the full value of both their fund awards
and workers' compensation payments. It is important that the
bill must extinguish any liens or rights of subrogation that
other parties might otherwise assert against the claimants
based on workers' compensation awards and health insurance
payments.
Another key issue for the claimants has been the
legislation's treatment of asbestos disease claims under the
Federal Employers' Liability Act, FELA, the workers'
compensation system for rail workers. Earlier versions of the
bill would have preempted FELA claims for asbestos-related
diseases, limiting victim's recovery to compensation under a
national asbestos trust fund. Rail labor asserts that such an
approach is unfair to rail workers, since for all other
workers, the bill maintains workers' compensation rights.
Alternative approaches to dealing with the FELA issue have
been proposed, including providing for a supplemental
payment, in addition to awards under the bill, to provide
compensation to rail workers for work-related asbestos
diseases. The AFL-CIO's affiliates who represent workers in
the rail industry have been engaged in discussions with
industry on this issue, and a fair resolution has been
reached. The bill provides for a principled compromise that
would allow for a special adjustment for railroad workers so
that the compensation award would be structured in a manner
that would allow for corollary benefits--similar benefits for
workers under FELA and workers compensation. It also
clarifies that this legislation intends to deal solely with
asbestos claims and does not in any manner impact FELA.
In these marathon discussions, plus the January 11 and
February 2 hearings, I understand the deep concerns expressed
by the stakeholder representatives on more concessions for
their clients. On the state of the 20-year record, this
choice is not between this bill and one which would give
their clients more concessions. The choice is between this
bill and the continuation of the present chaotic system which
leaves uncompensated thousands of victims suffering from
deadly diseases and litigation driving more companies into
bankruptcy.
We considered at length the manufactures/insurers
objections to medical screening, but concluded such a
provision was necessary as an offset to the reduced role of
claimant's attorney. With the previous potential of a
substantial contingent fee, claimant's attorneys identified
those damaged by exposure to asbestos. Absent that
motivation, with the attorneys fees capped at 5 percent, it
is reasonable to have routine examinations for people who
would not be expected to go for such checkups on their own;
so as a matter of basic fairness, such screening is provided.
By establishing a program with rigorous standards, as we have
done in this bill, unmeritorious claims can be avoided with
the fair determination of those entitled to compensation
under the statutory standard.
The legislation has closely examined the issues of so-
called ``leakage'' in the fund and has provided that all
asbestos claims pending on the date of enactment, except for
nonconsolidated cases actually on trial, and except cases
subject to a verdict or final order or final judgment, will
be brought into the asbestos trust fund. Furthermore, only
written settlement agreements, executed prior to date of
enactment, between a defendant and a specifically
identifiable plaintiff will be preserved outside of the
fund; the settlement agreement must contain an express
obligation by the settling defendant to make a future
monetary payment to the individual plaintiff, but gives
the plaintiff 30 days to fulfill all conditions of the
settlement agreement.
The legislation includes language which is designed to
ensure prompt judicial review of a variety of regulatory
actions and to ensure that any constitutional uncertainties
with regard to the legislation are resolved as quickly as
possible. Specifically, it provides that any action
challenging the constitutionality of any provision of the act
must be brought in the United States District Court for the
District of Columbia. The bill also authorizes direct appeal
to the Supreme Court on an expedited basis. An action under
this section is to be filed within 60 days after the date of
enactment or 60 days after the final action of the
administrator or the commission giving rise to the action,
whichever is later. The district court and Supreme Court are
required to expedite to the greatest possible extent the
disposition of the action and appeal.
Claimants also expressed the need for assurances that the
manufacturers payment into the fund. Therefore, the
legislation also requires enhanced ``transparency'' of the
payments by the defendants and insurers into the fund. The
proposal provides that 20 days after the end of such 60-day
period, the administrator shall publish in the Federal
Register a list of such submissions, including the name of
such persons or ultimate parents and the likely tier to which
such persons or affiliated groups may be assigned. After
publication of such list, any person may submit to the
administrator information on the identity of any other person
that may have obligations under the fund. In addition, there
are enhanced notice and disclosure requirements included in
the draft. It also provides that within 60 days after the
date of enactment, any person who, acting in good faith, has
knowledge that such person or such person's affiliated group
would result in placement in the top tiers, shall submit to
the administrator either the name of such person or such
person's ultimate parent; and the likely tier to which such
person or affiliated group may be assigned under this act.
This legislation deals with a number of very complex
issues, one of them being that of ``mixed-dust.'' I held a
hearing in the Judiciary Committee on this issue on February
2, 2005. The manufacturers fear that many asbestos claims
will be ``repackaged'' as silica claims in the tort system.
Evidence adduced at the hearing reflects that this has been
happening in a number of jurisdictions. If a claim is due to
asbestos exposure at all, the program should be the exclusive
means of compensation. The stakeholders agree that this is an
asbestos bill, designed to dispose of all asbestos claims but
that workers with genuine silica exposure disease ought to be
able to pursue their claims in the tort system. The problem
is that with those claims where the point of demarcation is
unclear. Silica/asbestos defendants are worried that they
will find themselves in court with the burden of proving that
the plaintiff's injury is due to asbestos rather than silica.
This legislation makes clear that pure silica claims are not
preempted, but claims involving asbestos disease are
preempted. A claimant must provide rigorous medical evidence
[[Page S3908]]
establishing by a preponderance of evidence that their
functional impairment was caused by exposure to silica, and
asbestos exposure was not a significant contributing factor.
Although this does impose the burden on the claimant, this
is no different than the burden the plaintiff or any party
advancing a position has in producing medical evidence in
any case that the will physician will state that a disease
was caused by some condition or exposure or that it was
not caused by some condition or exposure. In addition, the
testimony given at the February 2 hearing on the issue
established that asbestos and silica are easily
distinguishable on xray and that asbestos and silica
rarely are found in the same patient.
Another very complicated issue addressed this legislation,
is that of providing for award adjustments for exceptional
mesothelioma cases based on age and the number of dependents
of the claimant. For example, a mesothelioma victim who is 40
years old with two children will be able to get an upwards
adjustment in his award amount as compared to a 80 years
mesothelioma victim with no dependents. The impact of such
adjustments to the fund will remain revenue-neutral.
There has been a strong concern that this bill should not
become a ``smokers'' bill rather than an asbestos bill--that
thousands of smokers will claim to be in the Level VII
compensation tier in order to get money even if asbestos had
nothing to do with their disease. After long discussions with
the various sides, it has been decided to remove Level VII
cases from the fund, cases which had the potential to bring
down the entire fund.
There has also been a concern with the legitimacy of the
Level VI compensation tier. I requested that the Institute of
Medicine, IOM, commence a study to assess the medical
evidence so as to determine whether colorectal, laryngeal,
esophageal, pharyngeal or stomach cancer can be caused by
asbestos exposure. The IOM will conclude its study of Level
VI causation by April 2006. With a 270-day stay on exigent
cases and 2-year stay of all other cases, this has the
practical impact of the IOM study results being conclusive on
inclusion or exclusion of Level VI prior to any claim being
filed.
Therefore, the bill retains the Level VI tier pending the
IOM study conclusions but continues to provide extensive
safeguards to the fund against those individuals with these
diseases making claims against the asbestos trust fund. Any
Level VI claim must be based on findings by a board certified
pathologists accompanied by evidence of a bilateral asbestos-
related nonmalignant disease; evidence of 15 or more weighted
years of substantial occupations exposure to asbestos; and
supporting medical documentation establishing asbestos
exposure as a contributing factor in causing the cancer in
question. The claim must also be referred to a physicians
panel for a determination that it is more probable than not
that asbestos exposure was a substantial contributing factor
in causing the other cancer in question. Further, the bill
mandates that the physicians panel review the claimants
smoking history as opposed to ``claimant may request.''
This is a complicated bill, but one that is both integrated
and comprehensive and reflective of a remarkable will to
enact legislation. If this bill is rejected, I do not see the
agenda of this Senate Judiciary Committee revisiting the
issue. I cannot conceive of a more strenuous effort being
directed to this subject that has been done over the past two
years. This is the last best chance.
I remain confident that we can forge and enact a bill that
is fair to the claimants and to business and that will put an
end once and for all to this nightmare chapter in American
legal, economic and social history. If We can summon the
legislative will in a bipartisan spirit, it can be done.
Mr. SPECTER. Mr. President, I ask unanimous consent that the text of
the bill be printed.
Mr. President, I ask unanimous consent between the comments I have
made, which have not been made from a text, and the text of my language
which I am currently stating, be included, so that those who read the
Congressional Record, if anyone does, will know the repetition in the
prepared text is occasioned by the fact that the initial statement was
made without reference to a text and there will necessarily be some
repetition in the prepared text.
I thank the Chair. I yield the floor.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 852
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Fairness
in Asbestos Injury Resolution Act of 2005'' or the ``FAIR Act
of 2005''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purpose.
Sec. 3. Definitions.
TITLE I--ASBESTOS CLAIMS RESOLUTION
Subtitle A--Office of Asbestos Disease Compensation
Sec. 101. Establishment of Office of Asbestos Disease Compensation.
Sec. 102. Advisory Committee on Asbestos Disease Compensation.
Sec. 103. Medical Advisory Committee.
Sec. 104. Claimant assistance.
Sec. 105. Physicians Panels.
Sec. 106. Program startup.
Sec. 107. Authority of the Administrator.
Subtitle B--Asbestos Disease Compensation Procedures
Sec. 111. Essential elements of eligible claim.
Sec. 112. General rule concerning no-fault compensation.
Sec. 113. Filing of claims.
Sec. 114. Eligibility determinations and claim awards.
Sec. 115. Medical evidence auditing procedures.
Subtitle C--Medical Criteria
Sec. 121. Medical criteria requirements.
Subtitle D--Awards
Sec. 131. Amount.
Sec. 132. Medical monitoring.
Sec. 133. Payment.
Sec. 134. Reduction in benefit payments for collateral sources.
Sec. 135. Certain claims not affected by payment of awards.
TITLE II--ASBESTOS INJURY CLAIMS RESOLUTION FUND
Subtitle A--Asbestos Defendants Funding Allocation
Sec. 201. Definitions.
Sec. 202. Authority and tiers.
Sec. 203. Subtiers.
Sec. 204. Assessment administration.
Sec. 205. Stepdowns and funding holidays.
Subtitle B--Asbestos Insurers Commission
Sec. 210. Definition.
Sec. 211. Establishment of Asbestos Insurers Commission.
Sec. 212. Duties of Asbestos Insurers Commission.
Sec. 213. Powers of Asbestos Insurers Commission.
Sec. 214. Personnel matters.
Sec. 215. Termination of Asbestos Insurers Commission.
Sec. 216. Expenses and costs of Commission.
Subtitle C--Asbestos Injury Claims Resolution Fund
Sec. 221. Establishment of Asbestos Injury Claims Resolution Fund.
Sec. 222. Management of the Fund.
Sec. 223. Enforcement of payment obligations.
Sec. 224. Interest on underpayment or nonpayment.
Sec. 225. Education, consultation, screening, and monitoring.
TITLE III--JUDICIAL REVIEW
Sec. 301. Judicial review of rules and regulations.
Sec. 302. Judicial review of award decisions.
Sec. 303. Judicial review of participants' assessments.
Sec. 304. Other judicial challenges.
Sec. 305. Stays, exclusivity, and constitutional review.
TITLE IV--MISCELLANEOUS PROVISIONS
Sec. 401. False information.
Sec. 402. Effect on bankruptcy laws.
Sec. 403. Effect on other laws and existing claims.
Sec. 404. Effect on insurance and reinsurance contracts.
Sec. 405. Annual report of the Administrator and sunset of the Act.
Sec. 406. Rules of construction relating to liability of the United
States Government.
Sec. 407. Rules of construction.
Sec. 408. Violation of environmental health and safety requirements.
Sec. 409. Nondiscrimination of health insurance.
TITLE V--ASBESTOS BAN
Sec. 501. Prohibition on asbestos containing products.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) Millions of Americans have been exposed to forms of
asbestos that can have devastating health effects.
(2) Various injuries can be caused by exposure to some
forms of asbestos, including pleural disease and some forms
of cancer.
(3) The injuries caused by asbestos can have latency
periods of up to 40 years, and even limited exposure to some
forms of asbestos may result in injury in some cases.
(4) Asbestos litigation has had a significant detrimental
effect on the country's economy, driving companies into
bankruptcy, diverting resources from those who are truly
sick, and endangering jobs and pensions.
(5) The scope of the asbestos litigation crisis cuts across
every State and virtually every industry.
(6) The United States Supreme Court has recognized that
Congress must act to create a more rational asbestos claims
system. In 1991, a Judicial Conference Ad Hoc Committee on
Asbestos Litigation, appointed by Chief Justice William
Rehnquist, found that the ``ultimate solution should be
legislation recognizing the national proportions of the
problem . . . and creating a national asbestos dispute
resolution scheme . . .''. The Court found in 1997 in Amchem
Products Inc. v. Windsor, 521 U.S. 591, 595 (1997), that
``[t]he
[[Page S3909]]
argument is sensibly made that a nationwide administrative
claims processing regime would provide the most secure, fair,
and efficient means of compensating victims of asbestos
exposure.'' In 1999, the Court in Ortiz v. Fibreboard Corp.,
527 U.S. 819, 821 (1999), found that the ``elephantine mass
of asbestos cases . . . defies customary judicial
administration and calls for national legislation.'' That
finding was again recognized in 2003 by the Court in Norfolk
& Western Railway Co. v. Ayers, 123 S. Ct. 1210 (2003).
(7) This crisis, and its significant effect on the health
and welfare of the people of the United States, on interstate
and foreign commerce, and on the bankruptcy system, compels
Congress to exercise its power to regulate interstate
commerce and create this legislative solution in the form of
a national asbestos injury claims resolution program to
supersede all existing methods to compensate those injured by
asbestos, except as specified in this Act.
(8) This crisis has also imposed a deleterious burden upon
the United States bankruptcy courts, which have assumed a
heavy burden of administering complicated and protracted
bankruptcies with limited personnel.
(9) This crisis has devastated many communities across the
country, but hardest hit has been Libby, Montana, where
tremolite asbestos, 1 of the most deadly forms of asbestos,
was contained in the vermiculite ore mined from the area and
despite ongoing cleanup by the Environmental Protection
Agency, many still suffer from the deadly dust.
(b) Purpose.--The purpose of this Act is to--
(1) create a privately funded, publicly administered fund
to provide the necessary resources for a fair and efficient
system to resolve asbestos injury claims that will provide
compensation for legitimate present and future claimants of
asbestos exposure as provided in this Act;
(2) provide compensation to those present and future
victims based on the severity of their injuries, while
establishing a system flexible enough to accommodate
individuals whose conditions worsens;
(3) relieve the Federal and State courts of the burden of
the asbestos litigation; and
(4) increase economic stability by resolving the asbestos
litigation crisis that has bankrupted companies with asbestos
liability, diverted resources from the truly sick, and
endangered jobs and pensions.
SEC. 3. DEFINITIONS.
In this Act, the following definitions shall apply:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the Office of Asbestos Disease Compensation
appointed under section 101(b).
(2) Asbestos.--The term ``asbestos'' includes--
(A) chrysotile;
(B) amosite;
(C) crocidolite;
(D) tremolite asbestos;
(E) winchite asbestos;
(F) richterite asbestos;
(G) anthophyllite asbestos;
(H) actinolite asbestos;
(I) amphibole asbestos;
(J) any of the minerals listed under subparagraphs (A)
through (I) that has been chemically treated or altered, and
any asbestiform variety, type, or component thereof; and
(K) asbestos-containing material, such as asbestos-
containing products, automotive or industrial parts or
components, equipment, improvements to real property, and any
other material that contains asbestos in any physical or
chemical form.
(3) Asbestos claim.--
(A) In general.--The term ``asbestos claim'' means any
claim, premised on any theory, allegation, or cause of action
for damages or other relief presented in a civil action or
bankruptcy proceeding, directly, indirectly, or derivatively
arising out of, based on, or related to, in whole or part,
the health effects of exposure to asbestos, including loss of
consortium, wrongful death, and any derivative claim made by,
or on behalf of, any exposed person or any representative,
spouse, parent, child, or other relative of any exposed
person.
(B) Exclusion.--The term does not include--
(i) claims alleging damage or injury to tangible property;
(ii) claims for benefits under a workers' compensation law
or veterans' benefits program;
(iii) claims arising under any governmental or private
health, welfare, disability, death or compensation policy,
program or plan;
(iv) claims arising under any employment contract or
collective bargaining agreement; or
(v) claims arising out of medical malpractice.
(4) Asbestos claimant.--The term ``asbestos claimant''
means an individual who files a claim under section 113.
(5) Civil action.--The term ``civil action'' means all
suits of a civil nature in State or Federal court, whether
cognizable as cases at law or in equity or in admiralty, but
does not include an action relating to any workers'
compensation law, or a proceeding for benefits under any
veterans' benefits program.
(6) Collateral source compensation.--The term ``collateral
source compensation'' means the compensation that the
claimant received, or is entitled to receive, from a
defendant or an insurer of that defendant, or compensation
trust as a result of a final judgment or settlement for an
asbestos-related injury that is the subject of a claim filed
under section 113.
(7) Eligible disease or condition.--The term ``eligible
disease or condition'' means the extent that an illness meets
the medical criteria requirements established under subtitle
C of title I.
(8) Employers' liability act.--The term ``Act of April 22,
1908 (45 U.S.C. 51 et seq.), commonly known as the Employer's
Liability Act'' shall, for all purposes of this Act, include
the Act of June 5, 1920 (46 U.S.C. App. 688), commonly known
as the Jones Act, and the related phrase ``operations as a
common carrier by railroad'' shall include operations as an
employer of seamen.
(9) Fund.--The term ``Fund'' means the Asbestos Injury
Claims Resolution Fund established under section 221.
(10) Insurance receivership proceeding.--The term
``insurance receivership proceeding'' means any State
proceeding with respect to a financially impaired or
insolvent insurer or reinsurer including the liquidation,
rehabilitation, conservation, supervision, or ancillary
receivership of an insurer under State law.
(11) Law.--The term ``law'' includes all law, judicial or
administrative decisions, rules, regulations, or any other
principle or action having the effect of law.
(12) Participant.--
(A) In general.--The term ``participant'' means any person
subject to the funding requirements of title II, including--
(i) any defendant participant subject to liability for
payments under subtitle A of that title;
(ii) any insurer participant subject to a payment under
subtitle B of that title; and
(iii) any successor in interest of a participant.
(B) Exception.--
(i) In general.--A defendant participant shall not include
any person protected from any asbestos claim by reason of an
injunction entered in connection with a plan of
reorganization under chapter 11 of title 11, United States
Code, that has been confirmed by a duly entered order or
judgment of a court that is no longer subject to any appeal
or judicial review, and the substantial consummation, as such
term is defined in section 1101(2) of title 11, United States
Code, of such plan of reorganization has occurred.
(ii) Applicability.--Clause (i) shall not apply to a person
who may be liable under subtitle A of title II based on prior
asbestos expenditures related to asbestos claims that are not
covered by an injunction described under clause (i).
(13) 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.
(14) 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.
(15) Substantially continues.--The term ``substantially
continues'' means that the business operations have not been
significantly modified by the change in ownership.
(16) Successor in interest.--The term ``successor in
interest'' means any person that acquires assets, and
substantially continues the business operations, of a
participant. The factors to be considered in determining
whether a person is a successor in interest include--
(A) retention of the same facilities or location;
(B) retention of the same employees;
(C) maintaining the same job under the same working
conditions;
(D) retention of the same supervisory personnel;
(E) continuity of assets;
(F) production of the same product or offer of the same
service;
(G) retention of the same name;
(H) maintenance of the same customer base;
(I) identity of stocks, stockholders, and directors between
the asset seller and the purchaser; or
(J) whether the successor holds itself out as continuation
of previous enterprise, but expressly does not include
whether the person actually knew of the liability of the
participant under this Act.
(17) 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.
(18) Workers' compensation law.--The term ``workers'
compensation law''--
(A) means a law respecting a program administered by a
State or the United States to provide benefits, funded by a
responsible employer or its insurance carrier, for
occupational diseases or injuries or for disability or death
caused by occupational diseases or injuries;
(B) includes the Longshore and Harbor Workers' Compensation
Act (33 U.S.C. 901 et
[[Page S3910]]
seq.) and chapter 81 of title 5, United States Code; and
(C) does not include the Act of April 22, 1908 (45 U.S.C.
51 et seq.), commonly known as the Employers' Liability Act,
or damages recovered by any employee in a liability action
against an employer.
TITLE I--ASBESTOS CLAIMS RESOLUTION
Subtitle A--Office of Asbestos Disease Compensation
SEC. 101. ESTABLISHMENT OF OFFICE OF ASBESTOS DISEASE
COMPENSATION.
(a) In General.--
(1) Establishment.--There is established within the
Department of Labor the Office of Asbestos Disease
Compensation (hereinafter referred to in this Act as the
``Office''), which shall be headed by an Administrator.
(2) Purpose.--The purpose of the Office is to provide
timely, fair compensation, in the amounts and under the terms
specified in this Act, on a no-fault basis and in a non-
adversarial manner, to individuals whose health has been
adversely affected by exposure to asbestos.
(3) Expenses.--There shall be available from the Asbestos
Injury Claims Resolution Fund to the Administrator such sums
as are necessary for the administrative expenses of the
Office, including the sums necessary for conducting the
studies provided for in section 121(e).
(b) Appointment of Administrator.--
(1) In general.--The Administrator of the Office of
Asbestos Disease Compensation shall be appointed by the
President, by and with the advice and consent of the Senate.
The Administrator shall serve for a term of 5 years.
(2) Reporting.--The Administrator shall report directly to
the Assistant Secretary of Labor for the Employment Standards
Administration.
(c) Duties of Administrator.--
(1) In general.--The Administrator shall be responsible
for--
(A) processing claims for compensation for asbestos-related
injuries and paying compensation to eligible claimants under
the criteria and procedures established under title I;
(B) determining, levying, and collecting assessments on
participants under title II;
(C) appointing or contracting for the services of such
personnel, making such expenditures, and taking any other
actions as may be necessary and appropriate to carry out the
responsibilities of the Office, including entering into
cooperative agreements with other Federal agencies or State
agencies and entering into contracts with nongovernmental
entities;
(D) conducting such audits and additional oversight as
necessary to assure the integrity of the program;
(E) managing the Asbestos Injury Claims Resolution Fund
established under section 221, including--
(i) administering, in a fiduciary capacity, the assets of
the Fund for the exclusive purpose of providing benefits to
asbestos claimants and their beneficiaries;
(ii) defraying the reasonable expenses of administering the
Fund;
(iii) investing the assets of the Fund in accordance with
section 222(b);
(iv) retaining advisers, managers, and custodians who
possess the necessary facilities and expertise to provide for
the skilled and prudent management of the Fund, to assist in
the development, implementation and maintenance of the Fund's
investment policies and investment activities, and to provide
for the safekeeping and delivery of the Fund's assets; and
(v) borrowing amounts authorized by section 221(b) on
appropriate terms and conditions, including pledging the
assets of or payments to the Fund as collateral;
(F) promulgating such rules, regulations, and procedures as
may be necessary and appropriate to implement the provisions
of this Act;
(G) making such expenditures as may be necessary and
appropriate in the administration of this Act;
(H) excluding evidence and disqualifying or debarring any
attorney, physician, provider of medical or diagnostic
services, including laboratories and others who provide
evidence in support of a claimant's application for
compensation where the Administrator determines that
materially false, fraudulent, or fictitious statements or
practices have been submitted or engaged in by such
individuals or entities; and
(I) having all other powers incidental, necessary, or
appropriate to carrying out the functions of the Office.
(2) Certain enforcements.--For each infraction relating to
paragraph (1)(H), the Administrator also may impose a civil
penalty not to exceed $10,000 on any person or entity found
to have submitted or engaged in a materially false,
fraudulent, or fictitious statement or practice under this
Act. The Administrator shall prescribe appropriate
regulations to implement paragraph (1)(H).
(3) Selection of deputy administrators.--The Administrator
shall select a Deputy Administrator for Claims Administration
to carry out the Administrator's responsibilities under this
title and a Deputy Administrator for Fund Management to carry
out the Administrator's responsibilities under title II of
this Act. The Deputy Administrators shall report directly to
the Administrator and shall be in the Senior Executive
Service.
(d) Expeditious Determinations.--The Administrator shall
prescribe rules to expedite claims for asbestos claimants
with exigent circumstances in order to expedite the payment
of such claims as soon as possible after startup of the Fund.
The Administrator shall contract out the processing of such
claims.
(e) Audit and Personnel Review Procedures.--The
Administrator shall establish audit and personnel review
procedures for evaluating the accuracy of eligibility
recommendations of agency and contract personnel.
(f) Application of FOIA.--
(1) In general.--Section 552 of title 5, United States Code
(commonly referred to as the Freedom of Information Act)
shall apply to the Office of Asbestos Disease Compensation
and the Asbestos Insurers Commission.
(2) Confidentiality.--Any person may designate any record
submitted under this section as a confidential commercial or
financial record for purposes of section 552 of title 5,
United States Code. The Administrator and the Chairman of the
Asbestos Insurers Commission shall adopt procedures for
designating such records as confidential. Information on
reserves and asbestos-related liabilities submitted by any
participant for the purpose of the allocation of payments
under subtitles A and B of title II shall be deemed to be
confidential financial records.
SEC. 102. ADVISORY COMMITTEE ON ASBESTOS DISEASE
COMPENSATION.
(a) Establishment.--
(1) In general.--Not later than 120 days after the date of
enactment of this Act, the Administrator shall establish an
Advisory Committee on Asbestos Disease Compensation
(hereinafter the ``Advisory Committee'').
(2) Composition and appointment.--The Advisory Committee
shall be composed of 24 members, appointed as follows--
(A) The Majority and Minority Leaders of the Senate, the
Speaker of the House, and the Minority Leader of the House
shall each appoint 4 members. Of the 4--
(i) 2 shall be selected to represent the interests of
claimants, at least 1 of whom shall be selected from among
individuals recommended by recognized national labor
federations; and
(ii) 2 shall be selected to represent the interests of
participants, 1 of whom shall be selected to represent the
interests of the insurer participants and 1 of whom shall be
selected to represent the interests of the defendant
participants.
(B) The Administrator shall appoint 8 members, who shall be
individuals with qualifications and expertise in occupational
or pulmonary medicine, occupational health, workers'
compensation programs, financial administration, investment
of funds, program auditing, or other relevant fields.
(3) Qualifications.--All of the members described in
paragraph (2) shall have expertise or experience relevant to
the asbestos compensation program, including experience or
expertise in diagnosing asbestos-related diseases and
conditions, assessing asbestos exposure and health risks,
filing asbestos claims, administering a compensation or
insurance program, or as actuaries, auditors, or investment
managers. None of the members described in paragraph (2)(B)
shall be individuals who, for each of the 5 years before
their appointments, earned more than 15 percent of their
income by serving in matters related to asbestos litigation
as consultants or expert witnesses.
(b) Duties.--The Advisory Committee shall advise the
Administrator on--
(1) claims filing and claims processing procedures;
(2) claimant assistance programs;
(3) audit procedures and programs to ensure the quality and
integrity of the compensation program;
(4) the development of a list of industries, occupations
and time periods for which there is a presumption of
substantial occupational exposure to asbestos;
(5) recommended analyses or research that should be
conducted to evaluate past claims and to project future
claims under the program;
(6) the annual report required to be submitted to Congress
under section 405; and
(7) such other matters related to the implementation of
this Act as the Administrator considers appropriate.
(c) Operation of the Committee.--
(1) Each member of the Advisory Committee shall be
appointed for a term of 3 years, except that, of the members
first appointed--
(A) 8 shall be appointed for a term of 1 year;
(B) 8 shall be appointed for a term of 2 years; and
(C) 8 shall be appointed for a term of 3 years, as
determined by the Administrator at the time of appointment.
(2) Any member appointed to fill a vacancy occurring before
the expiration of the term shall be appointed only for the
remainder of such term.
(3) The Administrator shall designate a Chairperson and
Vice Chairperson from among members of the Advisory Committee
appointed under subsection (a)(2)(B).
(4) The Advisory Committee shall meet at the call of the
Chairperson or the majority of its members, and at a minimum
shall meet at least 4 times per year during the first 5 years
of the asbestos compensation program, and at least 2 times
per year thereafter.
(5) The Administrator shall provide to the Committee such
information as is necessary and appropriate for the Committee
to carry out its responsibilities under this section. The
Administrator may, upon request of the
[[Page S3911]]
Advisory Committee, secure directly from any Federal, State,
or local department or agency such information as may be
necessary and appropriate to enable the Advisory Committee to
carry out its duties under this section. Upon request of the
Administrator, the head of such department or agency shall
furnish such information to the Advisory Committee.
(6) The Administrator shall provide the Advisory Committee
with such administrative support as is reasonably necessary
to enable it to perform its functions.
(d) Expenses.--Members of the Advisory Committee, other
than full-time employees of the United States, while
attending meetings of the Advisory Committee or while
otherwise serving at the request of the Administrator, and
while serving away from their homes or regular places of
business, shall be allowed travel and meal expenses,
including per diem in lieu of subsistence, as authorized by
section 5703 of title 5, United States Code, for individuals
in the Government serving without pay.
SEC. 103. MEDICAL ADVISORY COMMITTEE.
(a) In General.--The Administrator shall establish a
Medical Advisory Committee to provide expert advice regarding
medical issues arising under the statute.
(b) Qualifications.--None of the members of the Medical
Advisory Committee shall be individuals who, for each of the
5 years before their appointments, earned more than 15
percent of their income by serving in matters related to
asbestos litigation as consultants or expert witnesses.
SEC. 104. CLAIMANT ASSISTANCE.
(a) Establishment.--Not later than 180 days after the
enactment of this Act, the Administrator shall establish a
comprehensive asbestos claimant assistance program to--
(1) publicize and provide information to potential
claimants about the availability of benefits for eligible
claimants under this Act, and the procedures for filing
claims and for obtaining assistance in filing claims;
(2) provide assistance to potential claimants in preparing
and submitting claims, including assistance in obtaining the
documentation necessary to support a claim;
(3) respond to inquiries from claimants and potential
claimants;
(4) provide training with respect to the applicable
procedures for the preparation and filing of claims to
persons who provide assistance or representation to
claimants; and
(5) provide for the establishment of a website where
claimants may access all relevant forms and information.
(b) Resource Centers.--The claimant assistance program
shall provide for the establishment of resource centers in
areas where there are determined to be large concentrations
of potential claimants. These centers shall be located, to
the extent feasible, in facilities of the Department of Labor
or other Federal agencies.
(c) Contracts.--The claimant assistance program may be
carried out in part through contracts with labor
organizations, community-based organizations, and other
entities which represent or provide services to potential
claimants, except that such organizations may not have a
financial interest in the outcome of claims filed with the
Office.
(d) Legal Assistance.--
(1) In general.--As part of the program established under
subsection (a), the Administrator shall establish a legal
assistance program to provide assistance to asbestos
claimants concerning legal representation issues.
(2) List of qualified attorneys.--As part of the program,
the Administrator shall maintain a roster of qualified
attorneys who have agreed to provide pro bono services to
asbestos claimants under rules established by the
Administrator. The claimants shall not be required to use the
attorneys listed on such roster.
(3) Notice.--
(A) Notice by administrator.--The Administrator shall
provide asbestos claimants with notice of, and information
relating to--
(i) pro bono services for legal assistance available to
those claimants; and
(ii) any limitations on attorneys fees for claims filed
under this title.
(B) Notice by attorneys.--Before a person becomes a client
of an attorney with respect to an asbestos claim, that
attorney shall provide notice to that person of pro bono
services for legal assistance available for that claim.
(e) Attorney's Fees.--
(1) In general.--Notwithstanding any contract, the
representative of an individual may not receive, for services
rendered in connection with the claim of an individual under
the Fund, more than 5 percent of a final award made (whether
by the Administrator initially or as a result of
administrative review) under the Fund on such claim.
(2) Penalty.--Any representative of an asbestos claimant
who violates this subsection shall be fined not more than the
greater of--
(A) $5,000; or
(B) twice the amount received by the representative for
services rendered in connection with each such violation.
SEC. 105. PHYSICIANS PANELS.
(a) Appointment.--The Administrator shall, in accordance
with section 3109 of title 5, United States Code, appoint
physicians with experience and competency in diagnosing
asbestos-related diseases to be available to serve on
Physicians Panels, as necessary to carry out this Act.
(b) Formation of Panels.--
(1) In general.--The Administrator shall periodically
determine--
(A) the number of Physicians Panels necessary for the
efficient conduct of the medical review process under section
121;
(B) the number of Physicians Panels necessary for the
efficient conduct of the exceptional medical claims process
under section 121; and
(C) the particular expertise necessary for each panel.
(2) Expertise.--Each Physicians Panel shall be composed of
members having the particular expertise determined necessary
by the Administrator, randomly selected from among the
physicians appointed under subsection (a) having such
expertise.
(3) Panel members.--
(A) In general.--Except as provided under subparagraph (B),
each Physicians Panel shall consist of 3 physicians, 2 of
whom shall be designated to participate in each case
submitted to the Physicians Panel, and the third of whom
shall be consulted in the event of disagreement.
(B) Waiver.--The Administrator may waive the provisions of
subparagraph (A) and may provide for panels of less than 3
physicians, if the Administrator determines that--
(i) there is a shortage of qualified physicians available
for service on panels; and
(ii) such shortage will result in administrative delay in
the claims process.
(c) Qualifications.--To be eligible to serve on a
Physicians Panel under subsection (a), a person shall be--
(1) a physician licensed in any State;
(2) board-certified in pulmonary medicine, occupational
medicine, internal medicine, oncology, or pathology; and
(3) an individual who, for each of the 5 years before and
during his or her appointment to a Physicians Panel, has
earned not more than 15 percent of his or her income as an
employee of a participating defendant or insurer or a law
firm representing any party in asbestos litigation or as a
consultant or expert witness in matters related to asbestos
litigation.
(d) Duties.--Members of a Physicians Panel shall--
(1) make such medical determinations as are required to be
made by Physicians Panels under section 121; and
(2) perform such other functions as required under this
Act.
(e) Compensation.--Notwithstanding any limitation otherwise
established under section 3109 of title 5, United States
Code, the Administrator shall be authorized to pay members of
a Physician Panel such compensation as is reasonably
necessary to obtain their services.
(f) Federal Advisory Committee Act.--A Physicians Panel
established under this section shall not be subject to the
Federal Advisory Committee Act (5 U.S.C. App. 2).
SEC. 106. PROGRAM STARTUP.
(a) Interim Regulations.--Not later than 90 days after the
date of enactment of this Act, the Administrator shall
promulgate interim regulations and procedures for the
processing of claims under title I and the operation of the
Fund under title II, including procedures for the expediting
of exigent health claims.
(b) Interim Personnel.--The Secretary of Labor and the
Assistant Secretary of Labor for the Employment Standards
Administration may make available to the Administrator on a
temporary basis such personnel and other resources as may be
necessary to facilitate the expeditious startup of the
program. The Administrator may in addition contract with
individuals or entities having relevant experience to assist
in the expeditious startup of the program. Such relevant
experience shall include, but not be limited to, experience
with the review of workers' compensation, occupational
disease, or similar claims and with financial matters
relevant to the operation of the program.
(c) Exigent Health Claims.--
(1) In general.--The Administrator shall develop procedures
to provide for an expedited process to categorize, evaluate,
and pay exigent health claims. Such procedures shall include,
pending promulgation of final regulations, adoption of
interim regulations as needed for processing of exigent
health claims.
(2) Eligible exigent health claims.--A claim shall qualify
for treatment as an exigent health claim if the claimant is
living and the claimant provides--
(A) a diagnosis of mesothelioma meeting the requirements of
section 121(d)(10); or
(B) a declaration or affidavit, from a physician who has
examined the claimant within 120 days before the date of such
declaration or affidavit, that the physician has diagnosed
the claimant as being terminally ill from an asbestos-related
illness and having a life expectancy of less than 1 year.
(3) Additional exigent health claims.--The Administrator
may, in final regulations promulgated under section 101(c),
designate additional categories of claims that qualify as
exigent health claims under this subsection.
(4) Claims facility.--To facilitate the prompt payment of
exigent health claims, the Administrator shall contract with
a claims facility, which applying the medical criteria of
section 121, may enter into settlements with claimants. In
the absence of an offer of judgment as provided under section
106(f)(2), the claimant may submit a claim to that claims
facility. The claims facility shall receive the claimant's
submissions and
[[Page S3912]]
evaluate the claim in accordance with subtitles B and C. The
claims facility shall then submit the file to the
Administrator for payment in accordance with subtitle D. This
subsection shall not apply to exceptional medical claims
under section 121(f). A claimant may appeal any decision at a
claims facility with the Administrator in accordance with
section 114.
(5) Authorization for contracts with claims facilities.--
The Administrator may enter into contracts with claims
facilities for the processing of claims (except for
exceptional medical claims) in accordance with this title.
(d) Extreme Financial Hardship Claims.--The Administrator
shall, in final regulations promulgated under section 101(c),
designate categories of claims to be handled on an expedited
basis as a result of extreme financial hardship.
(e) Interim Administrator.--Until an Administrator is
appointed and confirmed under section 101(b), the
responsibilities of the Administrator under this Act shall be
performed by the Assistant Secretary of Labor for the
Employment Standards Administration, who shall have all the
authority conferred by this Act on the Administrator and who
shall be deemed to be the Administrator for purposes of this
Act. Before final regulations being promulgated relating to
claims processing, the Interim Administrator may prioritize
claims processing, without regard to the time requirements
prescribed in subtitle B of this title, based on severity of
illness and likelihood that the illness in question was
caused by exposure to asbestos.
(f) Stay of Claims; Return to Tort System.--
(1) Stay of claims.--Notwithstanding any other provision of
this Act, any asbestos claim pending as of the date of
enactment of this Act, other than a claim to which section
403(d)(2)(A) applies, shall be subject to a stay.
(2) Exigent health claims.--
(A) Procedures for settlement of exigent health claims.--
(i) In general.--Any person that has filed a timely exigent
health claim seeking a judgment or order for monetary damages
in any Federal or State court before or after the date of
enactment of this Act, may immediately seek an offer of
judgment of such claim in accordance with this subparagraph.
(ii) Filing.--
(I) In general.--The claimant shall file with the
Administrator and serve upon all defendants in the pending
court action an election to pursue an offer of judgment--
(aa) within 60 days after the date of enactment of this
Act, if the claim was filed in a Federal or State court
before such date of enactment; and
(bb) within 60 days after the date of the filing of the
claim, if the claim is filed in a Federal or State court on
or after the date of enactment of this Act.
(II) Stay.--If the claimant fails to file and serve a
timely election under this clause, the stay under
subparagraph (B) shall remain in effect.
(iii) Information.--A claimant who has filed a timely
election under clause (ii) shall within 60 days after filing
provide to each defendant and to the Administrator--
(I) the amount received or due to be received as a result
of all settlements that would qualify as a collateral source
under section 134, together with copies of all settlement
agreements and related documents sufficient to show the
accuracy of that amount;
(II) all information that the claimant would be required to
provide to the Administrator in support of a claim under
sections 115 and 121; and
(III) a certification by the claimant that the information
provided is true and complete.
(iv) Certification.--The certification provided under
clause (iii) shall be subject to the same penalties for false
or misleading statements that would be applicable with regard
to information provided to the Administrator in support of a
claim.
(v) Offer of judgment.--Within 30 days after service of a
complete set of the information described in clause (iii),
any defendant may file and serve on all parties a good faith
offer of judgment in an aggregate amount not to exceed the
total amount to which the claimant may be entitled under
section 131 after adjustment for collateral sources under
section 134. If the aggregate amount offered by all
defendants exceeds the limitation in this clause, all offers
shall be deemed reduced pro-rata until the aggregate amount
equals the amount provided under section 131.
(vi) Acceptance or rejection.--Within 20 days after the
service of the last offer of judgment, the claimant shall
either accept or reject such offers. If the amount of the
offer made by any defendant individually, or by any
defendants jointly, equals or exceeds 100 percent of what the
claimant would receive under the Fund, the claimant shall
accept such offer and release any outstanding asbestos
claims.
(vii) Lump sum payment.--Any accepted offer of judgment
shall be payable within 30 days and in 1 lump sum in order to
settle the pending claim.
(viii) Recovery of costs.--Any defendant whose offer of
judgment is accepted and has settled an asbestos claim under
clauses (vi) and (vii) may recover the cost of such
settlement by deducting from its next and subsequent
contributions to the Fund for the full amount of the payment
made by such defendant to the exigent health claimant, unless
the Administrator finds, on the basis of clear and convincing
evidence, that--
(I) the claimant did not meet the requirements of an
exigent health claim; and
(II) the defendant's offer was collusive or otherwise not
in good faith.
(ix) Indemnification.--In any case in which the
Administrator refuses to grant full indemnification under
clause (viii), the Administrator may provide such partial
indemnification as may be fair and just in the circumstances.
If Administrator denies indemnification, the defendant may
seek contribution from other non-settling defendants, as well
as reimbursement under the defendant's applicable insurance
policies. If the Administrator refuses to grant full or
partial indemnification based on collusive action, the
defendant may pursue any available remedy against the
claimant.
(x) Refusal to make offer.--If a defendant refuses to make
an offer of judgment, the claimant may continue to seek a
judgment or order for monetary damages from the court where
the case is currently pending in an amount not to exceed 150
percent of what the claimant would receive if the claimant
had filed a claim with the Fund. Such a judgment or order may
also provide an award for claimant's attorneys' fees and the
costs of litigation.
(xi) Rejection of offer.--If the claimant rejects the offer
as less than what the claimant would qualify to receive under
section 131, the claimant may immediately pursue the claim in
court where the claimant shall demonstrate, in addition to
all other essential elements of the claimant's claim against
any defendant, that the claimant meets the requirements of
section 121.
(B) Pursual of exigent health claims.--
(i) Stay.--If a claimant does not elect to seek an offer of
judgment under subparagraph (A), the pending claim is stayed
for 9 months after the date of enactment of this Act.
(ii) Defendant offer.--If a claimant does not elect to seek
an offer of judgment under subparagraph (A), the defendant
may elect to make an offer according to the provisions of
this paragraph, except that a claimant shall not be required
to accept that offer. The claimant shall accept or reject the
offer within 20 days.
(iii) Claims facility.--If a claimant does not elect to
seek an offer of judgment under subparagraph (A), the
claimant may seek an award from the Fund through the claims
facility under section 106 (c)(4).
(iv) Continuance of claims.--If, after 9 months after the
date of enactment of this Act, the Administrator cannot
certify to Congress that the Fund is operational and paying
exigent health claims at a reasonable rate, each person that
has filed an exigent health claim before such date of
enactment and stayed under this paragraph may continue their
exigent health claims in the court where the case was pending
on the date of enactment of this Act. For exigent claims
filed after the date of enactment of this Act, by claimants
who do not elect to seek an offer of judgment under
subparagraph (A), the pending claim is stayed for 9 months
after the date the claim is filed, unless during that period
the Administrator can certify to Congress that the Fund is
operational and paying valid claims at a reasonable rate.
(C) Credit of claim and effect of operational fund.--If an
asbestos claim is pursued in Federal or State court in
accordance with this paragraph, any recovery by the claimant
shall be a collateral source compensation for purposes of
section 134.
(3) Pursual of asbestos claims in federal or state court.--
(A) In general.--Notwithstanding any other provision of
this Act, if, not later than 24 months after the date of
enactment of this Act, the Administrator cannot certify to
Congress that the Fund is operational and paying all valid
claims at a reasonable rate, any person with a non-exigent
asbestos claim stayed under this paragraph, except for any
person whose claim does not exceed a Level I claim, may
pursue that claim in the Federal district court or State
court located within--
(i) the State of residence of the claimant; or
(ii) the State in which the asbestos exposure arose.
(B) Defendants not found.--If any defendant cannot be found
in the State described in clause (i) or (ii) of subparagraph
(A), the claim may be pursued in the Federal district court
or State court located within any State in which the
defendant may be found.
(C) Determination of most appropriate forum.--If a person
alleges that the asbestos exposure occurred in more than 1
county (or Federal district), the trial court shall determine
which State and county (or Federal district) is the most
appropriate forum for the claim. If the court determines that
another forum would be the most appropriate forum for a
claim, the court shall dismiss the claim. Any otherwise
applicable statute of limitations shall be tolled beginning
on the date the claim was filed and ending on the date the
claim is dismissed under this subparagraph.
(D) State venue requirements.--Nothing in this paragraph
shall preempt or supersede any State's law relating to venue
requirements within that State which are more restrictive.
(E) Credit of claim and effect of operational or
nonoperational fund.--
[[Page S3913]]
(i) Credit of claim.--If an asbestos claim is pursued in
Federal or State court in accordance with this paragraph, any
recovery by the claimant shall be a collateral source
compensation for purposes of section 134.
(ii) Operational fund.--If the Administrator subsequently
certifies to Congress that the Fund has become operational
and paying all valid asbestos claims at a reasonable rate,
any claim in a civil action in Federal or State court that is
not actually on trial before a jury which has been impaneled
and presentation of evidence has commenced, but before its
deliberation, or before a judge and is at the presentation of
evidence, may, at the option of the claimant, be deemed a
reinstated claim against the Fund and the civil action before
the Federal or State court shall be null and void.
(iii) Nonoperational fund.--Notwithstanding any other
provision of this Act, if the Administrator subsequently
certifies to Congress that the Fund cannot become operational
and paying all valid asbestos claims at a reasonable rate,
all asbestos claims that have a stay may be filed or
reinstated.
SEC. 107. AUTHORITY OF THE ADMINISTRATOR.
The Administrator, on any matter within the jurisdiction of
the Administrator under this Act, may--
(1) issue subpoenas for and compel the attendance of
witnesses within a radius of 200 miles;
(2) administer oaths;
(3) examine witnesses;
(4) require the production of books, papers, documents, and
other evidence; and
(5) request assistance from other Federal agencies with the
performance of the duties of the Administrator under this
Act.
Subtitle B--Asbestos Disease Compensation Procedures
SEC. 111. ESSENTIAL ELEMENTS OF ELIGIBLE CLAIM.
To be eligible for an award under this Act for an asbestos-
related disease or injury, an individual shall--
(1) file a claim in a timely manner in accordance with
section 113; and
(2) prove, by a preponderance of the evidence, that the
claimant suffers from an eligible disease or condition, as
demonstrated by evidence that meets the requirements
established under subtitle C.
SEC. 112. GENERAL RULE CONCERNING NO-FAULT COMPENSATION.
An asbestos claimant shall not be required to demonstrate
that the asbestos-related injury for which the claim is being
made resulted from the negligence or other fault of any other
person.
SEC. 113. FILING OF CLAIMS.
(a) Who May Submit.--
(1) In general.--Any individual who has suffered from a
disease or condition that is believed to meet the
requirements established under subtitle C (or the personal
representative of the individual, if the individual is
deceased or incompetent) may file a claim with the Office for
an award with respect to such injury.
(2) Definition.--In this Act, the term ``personal
representative'' shall have the same meaning as that term is
defined in section 104.4 of title 28 of the Code of Federal
Regulations, as in effect on December 31, 2004.
(3) Limitation.--A claim may not be filed by any person
seeking contribution or indemnity.
(b) Statute of Limitations.--
(1) In general.--Except as otherwise provided in this
subsection, if an individual fails to file a claim with the
Office under this section within 5 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) Exception.--The statute of limitations in paragraph (1)
does not apply to the progression of nonmalignant diseases
once the initial claim has been filed.
(3) Effect on pending claims.--
(A) In general.--If, on the date of enactment of this Act,
an asbestos claimant has any timely filed asbestos claim that
is preempted under section 403(e), such claimant shall file a
claim under this section within 5 years after such date of
enactment, or any claim relating to that injury, and any
other asbestos claim related to that injury shall be
extinguished, and recovery there shall be prohibited.
(B) Special rule.--For purposes of this paragraph, a claim
shall not be treated as pending with a trust established
under title 11, United States Code, solely because a claimant
whose claim was previously compensated by the trust has or
alleges--
(i) a non-contingent right to the payment of future
installments of a fixed award; or
(ii) a contingent right to recover some additional amount
from the trust on the occurrence of a future event, such as
the reevaluation of the trust's funding adequacy or projected
claims experience.
(4) Effect of multiple injuries.--
(A) In general.--An asbestos claimant who receives an award
under this title for an eligible disease or condition, and
who subsequently develops another such injury, shall be
eligible for additional awards under this title (subject to
appropriate setoffs for such prior recovery of any award
under this title and from any other collateral source) and
the statute of limitations under paragraph (1) shall not
begin to run with respect to such subsequent injury until
such claimant obtains a medical diagnosis of such other
injury or discovers facts that would have led a reasonable
person to obtain such a diagnosis.
(B) Setoffs.--Except as provided in subparagraph (C), any
amounts paid or to be paid for a prior award under this Act
shall be deducted as a setoff against amounts payable for the
second injury claim.
(C) Exception.--Any amounts paid or to be paid for a prior
claim for a nonmalignant disease (Levels I through V) filed
against the Fund shall not be deducted as a setoff against
amounts payable for the second injury claim for a malignant
disease (Levels VI through IX), unless the malignancy was
diagnosed, or the asbestos claimant had discovered facts that
would have led a reasonable person to obtain such a
diagnosis, before the date on which the nonmalignancy claim
was compensated.
(c) Required Information.--A claim filed under subsection
(a) shall be in such form, and contain such information in
such detail, as the Administrator shall by regulation
prescribe. At a minimum, a claim shall include--
(1) the name, social security number, gender, date of
birth, and, if applicable, date of death of the claimant;
(2) information relating to the identity of dependents and
beneficiaries of the claimant;
(3) an employment history sufficient to establish required
asbestos exposure, accompanied by social security or other
payment records or a signed release permitting access to such
records;
(4) a description of the asbestos exposure of the claimant,
including, to the extent known, information on the site, or
location of exposure, and duration and intensity of exposure;
(5) a description of the tobacco product use history of the
claimant, including frequency and duration;
(6) an identification and description of the asbestos-
related diseases or conditions of the claimant, accompanied
by a written report by the claimant's physician with medical
diagnoses and x-ray films, and other test results necessary
to establish eligibility for an award under this Act;
(7) a description of any prior or pending civil action or
other claim brought by the claimant for asbestos-related
injury or any other pulmonary, parenchymal, or pleural
injury, including an identification of any recovery of
compensation or damages through settlement, judgment, or
otherwise; and
(8) for any claimant who asserts that he or she is a
nonsmoker or an ex-smoker, as defined in section 131, for
purposes of an award under Malignant Level VI, Malignant
Level VII, or Malignant Level VIII, evidence to support the
assertion of nonsmoking or ex-smoking, including relevant
medical records.
(d) Date of Filing.--A claim shall be considered to be
filed on the date that the claimant mails the claim to the
Office, as determined by postmark, or on the date that the
claim is received by the Office, whichever is the earliest
determinable date.
(e) Incomplete Claims.--If a claim filed under subsection
(a) is incomplete, the Administrator shall notify the
claimant of the information necessary to complete the claim
and inform the claimant of such services as may be available
through the Claimant Assistance Program established under
section 104 to assist the claimant in completing the claim.
Any time periods for the processing of the claim shall be
suspended until such time as the claimant submits the
information necessary to complete the claim. If such
information is not received within 1 year after the date of
such notification, the claim shall be dismissed.
SEC. 114. ELIGIBILITY DETERMINATIONS AND CLAIM AWARDS.
(a) In General.--
(1) Review of claims.--The Administrator shall, in
accordance with this section, determine whether each claim
filed under the Fund or claims facility satisfies the
requirements for eligibility for an award under this Act and,
if so, the value of the award. In making such determinations,
the Administrator shall consider the claim presented by the
claimant, the factual and medical evidence submitted by the
claimant in support of the claim, the medical determinations
of any Physicians Panel to which a claim is referred under
section 121, and the results of such investigation as the
Administrator may deem necessary to determine whether the
claim satisfies the criteria for eligibility established by
this Act.
(2) Additional evidence.--The Administrator may request the
submission of medical evidence in addition to the minimum
requirements of section 113(c) if necessary or appropriate to
make a determination of eligibility for an award, in which
case the cost of obtaining such additional information or
testing shall be borne by the Office.
(b) Proposed Decisions.--Not later than 90 days after the
filing of a claim, the Administrator shall provide to the
claimant (and the claimant's representative) a proposed
decision accepting or rejecting the claim in whole or in part
and specifying the amount of the proposed award, if any. The
proposed decision shall be in writing, shall contain findings
of fact and conclusions of law, and shall contain an
explanation of the procedure for obtaining review of the
proposed decision.
(c) Payments if no Timely Proposed Decision.--If the
Administrator has received a
[[Page S3914]]
complete claim and has not provided a proposed decision to
the claimant under subsection (b) within 180 days after the
filing of the claim, the claim shall be deemed accepted and
the claimant shall be entitled to payment under section
133(a)(2). If the Administrator subsequently rejects the
claim the claimant shall receive no further payments under
section 133. If the Administrator subsequently rejects the
claim in part, the Administrator shall adjust future payments
due the claimant under section 133 accordingly. In no event
may the Administrator recover amounts properly paid under
this section from a claimant.
(d) Review of Proposed Decisions.--
(1) Right to hearing.--
(A) In general.--Any claimant not satisfied with a proposed
decision of the Administrator under subsection (b) shall be
entitled, on written request made within 90 days after the
date of the issuance of the decision, to a hearing on the
claim of that claimant before a representative of the
Administrator. At the hearing, the claimant shall be entitled
to present oral evidence and written testimony in further
support of that claim.
(B) Conduct of hearing.--When practicable, the hearing will
be set at a time and place convenient for the claimant. In
conducting the hearing, the representative of the
Administrator shall not be bound by common law or statutory
rules of evidence, by technical or formal rules of procedure,
or by section 554 of title 5, United States Code, except as
provided by this Act, but shall conduct the hearing in such
manner as to best ascertain the rights of the claimant. For
this purpose, the representative shall receive such relevant
evidence as the claimant adduces and such other evidence as
the representative determines necessary or useful in
evaluating the claim.
(C) Request for subpoenas.--
(i) In general.--A claimant may request a subpoena but the
decision to grant or deny such a request is within the
discretion of the representative of the Administrator. The
representative may issue subpoenas for the attendance and
testimony of witnesses, and for the production of books,
records, correspondence, papers, or other relevant documents.
Subpoenas are issued for documents only if such documents are
relevant and cannot be obtained by other means, and for
witnesses only where oral testimony is the best way to
ascertain the facts.
(ii) Request.--A claimant may request a subpoena only as
part of the hearing process. To request a subpoena, the
requester shall--
(I) submit the request in writing and send it to the
representative as early as possible, but no later than 30
days after the date of the original hearing request; and
(II) explain why the testimony or evidence is directly
relevant to the issues at hand, and a subpoena is the best
method or opportunity to obtain such evidence because there
are no other means by which the documents or testimony could
have been obtained.
(iii) Fees and mileage.--Any person required by such
subpoena to attend as a witness shall be allowed and paid the
same fees and mileage as are paid witnesses in the district
courts of the United States. Such fees and mileage shall be
paid from the Fund.
(2) Review of written record.--In lieu of a hearing under
paragraph (1), any claimant not satisfied with a proposed
decision of the Administrator shall have the option, on
written request made within 90 days after the date of the
issuance of the decision, of obtaining a review of the
written record by a representative of the Administrator. If
such review is requested, the claimant shall be afforded an
opportunity to submit any written evidence or argument which
the claimant believes relevant.
(e) Final Decisions.--
(1) In general.--If the period of time for requesting
review of the proposed decision expires and no request has
been filed, or if the claimant waives any objections to the
proposed decision, the Administrator shall issue a final
decision. If such decision materially differs from the
proposed decision, the claimant shall be entitled to review
of the decision under subsection (d).
(2) Time and content.--If the claimant requests review of
all or part of the proposed decision the Administrator shall
issue a final decision on the claim not later than 180 days
after the request for review is received, if the claimant
requests a hearing, or not later than 90 days after the
request for review is received, if the claimant requests
review of the written record. Such decision shall be in
writing and contain findings of fact and conclusions of law.
(f) Representation.--A claimant may authorize an attorney
or other individual to represent him or her in any proceeding
under this Act.
SEC. 115. MEDICAL EVIDENCE AUDITING PROCEDURES.
(a) In General.--
(1) Development.--The Administrator shall develop methods
for auditing and evaluating the medical evidence submitted as
part of a claim. The Administrator may develop additional
methods for auditing and evaluating other types of evidence
or information received by the Administrator.
(2) Refusal to consider certain evidence.--
(A) In general.--If the Administrator determines that an
audit conducted in accordance with the methods developed
under paragraph (1) demonstrates that the medical evidence
submitted by a specific physician or medical facility is not
consistent with prevailing medical practices or the
applicable requirements of this Act, any medical evidence
from such physician or facility shall be unacceptable for
purposes of establishing eligibility for an award under this
Act.
(B) Notification.--Upon a determination by the
Administrator under subparagraph (A), the Administrator shall
notify the physician or medical facility involved of the
results of the audit. Such physician or facility shall have a
right to appeal such determination under procedures issued by
the Administrator.
(b) Review of Certified B-Readers.--
(1) In general.--At a minimum, the Administrator shall
prescribe procedures to randomly assign claims for evaluation
by an independent certified B-reader of x-rays submitted in
support of a claim, the cost of which shall be borne by the
Office.
(2) Disagreement.--If an independent certified B-reader
assigned under paragraph (1) disagrees with the quality
grading or ILO level assigned to an x-ray submitted in
support of a claim, the Administrator shall require a review
of such x-rays by a second independent certified B-reader.
(3) Effect on claim.--If neither certified B-reader under
paragraph (2) agrees with the quality grading and the ILO
grade level assigned to an x-ray as part of the claim, the
Administrator shall take into account the findings of the 2
independent B readers in making the determination on such
claim.
(4) Certified b-readers.--The Administrator shall maintain
a list of a minimum of 50 certified B-readers eligible to
participate in the independent reviews, chosen from all
certified B-readers. When an x-ray is sent for independent
review, the Administrator shall choose the certified B-reader
at random from that list.
(c) Smoking Assessment.--
(1) In general.--
(A) Records and documents.--To aid in the assessment of the
accuracy of claimant representations as to their smoking
status for purposes of determining eligibility and amount of
award under Malignant Level VI, Malignant Level VII, or
Malignant Level VIII, and exceptional medical claims, the
Administrator shall have the authority to obtain relevant
records and documents, including--
(i) records of past medical treatment and evaluation;
(ii) affidavits of appropriate individuals;
(iii) applications for insurance and supporting materials;
and
(iv) employer records of medical examinations.
(B) Consent.--The claimant shall provide consent for the
Administrator to obtain such records and documents where
required.
(2) Review.--The frequency of review of records and
documents submitted under paragraph (1)(A) shall be at the
discretion of the Administrator, but shall address at least 5
percent of the claimants asserting status as nonsmokers or
ex-smokers.
(3) Consent.--The Administrator may require the performance
of blood tests or any other appropriate medical test, such as
serum cotinine screening, where claimants assert they are
nonsmokers or ex-smokers for purposes of an award under
Malignant Level VI, Malignant Level VII, or Malignant Level
VIII, or as an exceptional medical claim, the cost of which
shall be borne by the Office.
(4) Penalty for false statements.--Any false information
submitted under this subsection shall be subject to criminal
prosecution or civil penalties as provided under section 1348
of title 18, United States Code (as added by this Act) and
section 101(c)(2).
Subtitle C--Medical Criteria
SEC. 121. MEDICAL CRITERIA REQUIREMENTS.
(a) Definitions.--In this section, the following
definitions shall apply:
(1) Asbestosis determined by pathology.--The term
``asbestosis determined by pathology'' means indications of
asbestosis based on the pathological grading system for
asbestosis described in the Special Issues of the Archives of
Pathology and Laboratory Medicine, ``Asbestos-associated
Diseases'', Vol. 106, No. 11, App. 3 (October 8, 1982).
(2) Bilateral asbestos-related nonmalignant disease.--The
term ``bilateral asbestos-related nonmalignant disease''
means a diagnosis of bilateral asbestos-related nonmalignant
disease based on--
(A) an x-ray reading of 1/0 or higher based on the ILO
grade scale;
(B) bilateral pleural plaques;
(C) bilateral pleural thickening; or
(D) bilateral pleural calcification.
(3) Bilateral pleural disease of b2.--The term ``bilateral
pleural disease of B2'' means a chest wall pleural thickening
or plaque with a maximum width of at least 5 millimeters and
a total length of at least \1/4\ of the projection of the
lateral chest wall.
(4) Certified b-reader.--The term ``certified B-reader''
means an individual who is certified by the National
Institute of Occupational Safety and Health and whose
certification by the National Institute of Occupational
Safety and Health is up to date.
(5) Diffuse pleural thickening.--The term ``diffuse pleural
thickening'' means blunting of either costophrenic angle and
bilateral pleural plaque or bilateral pleural thickening.
(6) DLCO.--The term ``DLCO'' means the single-breath
diffusing capacity of the lung
[[Page S3915]]
(carbon monoxide) technique used to measure the volume of
carbon monoxide transferred from the alveoli to blood in the
pulmonary capillaries for each unit of driving pressure of
the carbon monoxide.
(7) FEV1.--The term ``FEV1'' means forced expiratory volume
(1 second), which is the maximal volume of air expelled in 1
second during performance of the spirometric test for forced
vital capacity.
(8) FVC.--The term ``FVC'' means forced vital capacity,
which is the maximal volume of air expired with a maximally
forced effort from a position of maximal inspiration.
(9) ILO grade.--The term ``ILO grade'' means the
radiological ratings for the presence of lung changes as
determined from a chest x-ray, all as established from time
to time by the International Labor Organization.
(10) Lower limits of normal.--The term ``lower limits of
normal'' means the fifth percentile of healthy populations as
defined in the American Thoracic Society statement on lung
function testing (Amer. Rev. Resp. Disease 1991, 144:1202-
1218) and any future revision of the same statement.
(11) Nonsmoker.--The term ``nonsmoker'' means a claimant
who--
(A) never smoked; or
(B) has smoked fewer than 100 cigarettes or the equivalent
amount of other tobacco products during the claimant's
lifetime.
(12) PO2.--The term ``PO2'' means the partial
pressure (tension) of oxygen, which measures the amount of
dissolved oxygen in the blood.
(13) Pulmonary function testing.--The term ``pulmonary
function testing'' means spirometry testing that is in
material compliance with the quality criteria established by
the American Thoracic Society and is performed on equipment
which is in material compliance with the standards of the
American Thoracic Society for technical quality and
calibration.
(14) Substantial occupational exposure to asbestos.--
(A) In general.--The term ``substantial occupational
exposure'' means employment in an industry and an occupation
where for a substantial portion of a normal work year for
that occupation, the claimant--
(i) handled raw asbestos fibers;
(ii) fabricated asbestos-containing products so that the
claimant in the fabrication process was exposed to raw
asbestos fibers;
(iii) altered, repaired, or otherwise worked with an
asbestos-containing product such that the claimant was
exposed on a regular basis to asbestos fibers; or
(iv) worked in close proximity to other workers engaged in
the activities described under clause (i), (ii), or (iii),
such that the claimant was exposed on a regular basis to
asbestos fibers.
(B) Regular basis.--In this paragraph, the term ``on a
regular basis'' means on a frequent or recurring basis.
(15) TLC.--The term ``TLC'' means total lung capacity,
which is the total volume of air in the lung after maximal
inspiration.
(16) Weighted occupational exposure.--
(A) In general.--The term ``weighted occupational
exposure'' means exposure for a period of years calculated
according to the exposure weighting formula under
subparagraphs (B) through (E).
(B) Moderate exposure.--Subject to subparagraph (E), each
year that a claimant's primary occupation, during a
substantial portion of a normal work year for that
occupation, involved working in areas immediate to where
asbestos-containing products were being installed, repaired,
or removed under circumstances that involved regular airborne
emissions of asbestos fibers, shall count as 1 year of
substantial occupational exposure.
(C) Heavy exposure.--Subject to subparagraph (E), each year
that a claimant's primary occupation, during a substantial
portion of a normal work year for that occupation, involved
the direct installation, repair, or removal of asbestos-
containing products such that the person was exposed on a
regular basis to asbestos fibers, shall count as 2 years of
substantial occupational exposure.
(D) Very heavy exposure.--Subject to subparagraph (E), each
year that a claimant's primary occupation, during a
substantial portion of a normal work year for that
occupation, was in primary asbestos manufacturing, a World
War II shipyard, or the asbestos insulation trades, such that
the person was exposed on a regular basis to asbestos fibers,
shall count as 4 years of substantial occupational exposure.
(E) Dates of exposure.--Each year of exposure calculated
under subparagraphs (B), (C), and (D) that occurred before
1976 shall be counted at its full value. Each year from 1976
to 1986 shall be counted as \1/2\ of its value. Each year
after 1986 shall be counted as \1/10\ of its value.
(F) Other claims.--Individuals who do not meet the
provisions of subparagraphs (A) through (E) and believe their
post-1976 or post-1986 exposures exceeded the Occupational
Safety and Health Administration standard may submit
evidence, documentation, work history, or other information
to substantiate noncompliance with the Occupational Safety
and Health Administration standard (such as lack of
engineering or work practice controls, or protective
equipment) such that exposures would be equivalent to
exposures before 1976 or 1986, or to documented exposures in
similar jobs or occupations where control measures had not
been implemented. Claims under this subparagraph shall be
evaluated on an individual basis by a Physicians Panel.
(b) Medical Evidence.--
(1) Latency.--Unless otherwise specified, all diagnoses of
an asbestos-related disease for a level under this section
shall be accompanied by--
(A) a statement by the physician providing the diagnosis
that at least 10 years have elapsed between the date of first
exposure to asbestos or asbestos-containing products and the
diagnosis; or
(B) a history of the claimant's exposure that is sufficient
to establish a 10-year latency period between the date of
first exposure to asbestos or asbestos-containing products
and the diagnosis.
(2) Diagnostic guidelines.--All diagnoses of asbestos-
related diseases shall be based upon--
(A) for disease Levels I through V, in the case of a
claimant who was living at the time the claim was filed--
(i) a physical examination of the claimant by the physician
providing the diagnosis;
(ii) an evaluation of smoking history and exposure history
before making a diagnosis;
(iii) an x-ray reading by a certified B-reader; and
(iv) pulmonary function testing in the case of disease
Levels III, IV, and V;
(B) for disease Levels I through V, in the case of a
claimant who was deceased at the time the claim was filed, a
report from a physician based upon a review of the claimant's
medical records which shall include--
(i) pathological evidence of the nonmalignant asbestos-
related disease; or
(ii) an x-ray reading by a certified B-reader;
(C) for disease Levels VI through IX, in the case of a
claimant who was living at the time the claim was filed--
(i) a physical examination by the claimant's physician
providing the diagnosis; or
(ii) a diagnosis of such a malignant asbestos-related
disease, as described in this section, by a board-certified
pathologist; and
(D) for disease Levels VI through IX, in the case of a
claimant who was deceased at the time the claim was filed--
(i) a diagnosis of such a malignant asbestos-related
disease, as described in this section, by a board-certified
pathologist; and
(ii) a report from a physician based upon a review of the
claimant's medical records.
(3) Credibility of medical evidence.--To ensure the medical
evidence provided in support of a claim is credible and
consistent with recognized medical standards, a claimant
under this title may be required to submit--
(A) x-rays or computerized tomography;
(B) detailed results of pulmonary function tests;
(C) laboratory tests;
(D) tissue samples;
(E) results of medical examinations;
(F) reviews of other medical evidence; and
(G) medical evidence that complies with recognized medical
standards regarding equipment, testing methods, and procedure
to ensure the reliability of such evidence as may be
submitted.
(c) Exposure Evidence.--
(1) In general.--To qualify for any disease level, the
claimant shall demonstrate--
(A) a minimum exposure to asbestos or asbestos-containing
products;
(B) the exposure occurred in the United States, its
territories or possessions, or while a United States citizen,
while an employee of an entity organized under any Federal or
State law regardless of location, or while a United States
citizen while serving on any United States flagged or owned
ship, provided the exposure results from such employment or
service; and
(C) any additional asbestos exposure requirement under this
section.
(2) Proof of exposure.--
(A) Affidavits.--Exposure to asbestos sufficient to satisfy
the exposure requirements for any disease level may be
established by an affidavit of--
(i) the claimant; or
(ii) if the claimant is deceased, a co-worker or a family
member, if the affidavit of the claimant, co-worker or family
member is found in proceedings under this title to be
reasonably reliable, attesting to the claimant's exposure;
and is credible and is not contradicted by other evidence.
(B) Other proof.--Exposure to asbestos may alternatively be
established by invoices, construction or other similar
records, or any other reasonably reliable evidence.
(3) Take-home exposure.--
(A) In general.--A claimant may alternatively satisfy the
medical criteria requirements of this section where a claim
is filed by a person who alleges their exposure to asbestos
was the result of living with a person who, if the claim had
been filed by that person, would have met the exposure
criteria for the given disease level, and the claimant lived
with such person for the time period necessary to satisfy the
exposure requirement, for the claimed disease level.
(B) Review.--Except for claims for disease Level IX
(mesothelioma), all claims alleging take-home exposure shall
be submitted as an exceptional medical claim under section
121(f) for review by a Physicians Panel.
(4) Waiver for workers and residents of libby, montana.--
Because of the unique nature of the asbestos exposure related
to the vermiculite mining and milling operations in Libby,
Montana, the Administrator shall waive the exposure
requirements under this
[[Page S3916]]
subtitle for individuals who worked at the vermiculite mining
and milling facility in Libby, Montana, or lived or worked
within a 20-mile radius of Libby, Montana, for at least 12
consecutive months before December 31, 2004. Claimants under
this section shall provide such supporting documentation as
the Administrator shall require.
(5) Exposure presumptions.--
(A) In general.--The Administrator shall prescribe rules
identifying specific industries, occupations within such
industries, and time periods in which workers employed in
those industries or occupations typically had substantial
occupational exposure to asbestos as defined under section
121(a). Until 5 years after the Administrator certifies that
the Fund is paying claims at a reasonable rate, the
industries, occupations and time periods identified by the
Administrator shall at a minimum include those identified in
the 2002 Trust Distribution Process of the Manville Personal
Injury Settlement Trust as of January 1, 2005, as industries,
occupations and time periods in which workers were presumed
to have had significant occupational exposure to asbestos.
Thereafter, the Administrator may by rule modify or eliminate
those exposure presumptions required to be adopted from the
Manville Personal Injury Settlement Trust, if there is
evidence that demonstrates that the typical exposure for
workers in such industries and occupations during such time
periods did not constitute substantial occupational exposure
in asbestos.
(B) Claimants entitled to presumptions.--Any claimant who
demonstrates through meaningful and credible evidence that
such claimant was employed during relevant time periods in
industries or occupations identified under subparagraph (A)
shall be entitled to a presumption that the claimant had
substantial occupational exposure to asbestos during those
time periods. That presumption shall not be conclusive, and
the Administrator may find that the claimant does not have
substantial occupational exposure if other information
demonstrates that the claimant did not in fact have
substantial occupational exposure during any part of the
relevant time periods.
(6) Penalty for false statement.--Any false information
submitted under this subsection shall be subject to section
1348 of title 18, United States Code (as added by this Act).
(d) Asbestos Disease Levels.--
(1) Nonmalignant level i.--To receive Level I compensation,
a claimant shall provide--
(A) a diagnosis of bilateral asbestos-related nonmalignant
disease; and
(B) evidence of 5 years cumulative occupational exposure to
asbestos.
(2) Nonmalignant level ii.--To receive Level II
compensation, a claimant shall provide--
(A) a diagnosis of bilateral asbestos-related nonmalignant
disease with ILO grade of 1/1 or greater, and showing small
irregular opacities of shape or size, either ss, st, or tt,
and present in both lower lung zones, or asbestosis
determined by pathology, or blunting of either costophrenic
angle and bilateral pleural plaque or bilateral pleural
thickening of at least grade B2 or greater, or bilateral
pleural disease of grade B2 or greater;
(B) evidence of TLC less than 80 percent or FVC less than
the lower limits of normal, and FEV1/FVC ratio less than 65
percent;
(C) evidence of 5 or more weighted years of substantial
occupational exposure to asbestos; and
(D) supporting medical documentation establishing asbestos
exposure as a substantial contributing factor in causing the
pulmonary condition in question.
(3) Nonmalignant level iii.--To receive Level III
compensation a claimant shall provide--
(A) a diagnosis of bilateral asbestos-related nonmalignant
disease with ILO grade of 1/0 or greater and showing small
irregular opacities of shape or size, either ss, st, or tt,
and present in both lower lung zones, or asbestosis
determined by pathology, or diffuse pleural thickening, or
bilateral pleural disease of B2 or greater;
(B) evidence of TLC less than 80 percent, FVC less than the
lower limits of normal and FEV1/FVC ratio greater than or
equal to 65 percent, or evidence of a decline in FVC of 20
percent or greater, after allowing for the expected decrease
due to aging, and an FEV1/FVC ratio greater than or equal to
65 percent documented with a second spirometry;
(C) evidence of 5 or more weighted years of substantial
occupational exposure to asbestos; and
(D) supporting medical documentation--
(i) establishing asbestos exposure as a substantial
contributing factor in causing the pulmonary condition in
question; and
(ii) excluding other more likely causes of that pulmonary
condition.
(4) Nonmalignant level iv.--To receive Level IV
compensation a claimant shall provide--
(A) diagnosis of bilateral asbestos-related nonmalignant
disease with ILO grade of 1/1 or greater and showing small
irregular opacities of shape or size, either ss, st, or tt,
and present in both lower lung zones, or asbestosis
determined by pathology, or diffuse pleural thickening, or
bilateral pleural disease of B2 or greater;
(B) evidence of TLC less than 60 percent or FVC less than
60 percent, and FEV1/FVC ratio greater than or equal to 65
percent;
(C) evidence of 5 or more weighted years of substantial
occupational exposure to asbestos before diagnosis; and
(D) supporting medical documentation--
(i) establishing asbestos exposure as a substantial
contributing factor in causing the pulmonary condition in
question; and
(ii) excluding other more likely causes of that pulmonary
condition.
(5) Nonmalignant level v.--To receive Level V compensation
a claimant shall provide--
(A) diagnosis of bilateral asbestos-related nonmalignant
disease with ILO grade of 1/1 or greater and showing small
irregular opacities of shape or size, either ss, st, or tt,
and present in both lower lung zones, or asbestosis
determined by pathology, or diffuse pleural thickening, or
bilateral pleural disease of B2 or greater;
(B)(i) evidence of TLC less than 50 percent or FVC less
than 50 percent, and FEV1/FVC ratio greater than or equal to
65 percent;
(ii) DLCO less than 40 percent of predicted, plus a FEV1/
FVC ratio not less than 65 percent; or
(iii) PO2 less than 55 mm/Hg, plus a FEV1/FVC
ratio not less than 65 percent;
(C) evidence of 5 or more weighted years of substantial
occupational exposure to asbestos; and
(D) supporting medical documentation--
(i) establishing asbestos exposure as a substantial
contributing factor in causing the pulmonary condition in
question; and
(ii) excluding other more likely causes of that pulmonary
condition.
(6) Malignant level vi.--
(A) In general.--To receive Level VI compensation a
claimant shall provide--
(i) a diagnosis of a primary colorectal, laryngeal,
esophageal, pharyngeal, or stomach cancer on the basis of
findings by a board certified pathologist;
(ii) evidence of a bilateral asbestos-related nonmalignant
disease;
(iii) evidence of 15 or more weighted years of substantial
occupational exposure to asbestos; and
(iv) supporting medical documentation establishing asbestos
exposure as a substantial contributing factor in causing the
cancer in question.
(B) Referral to physicians panel.--All claims filed with
respect to Level VI under this paragraph shall be referred to
a Physicians Panel for a determination that it is more
probable than not that asbestos exposure was a substantial
contributing factor in causing the other cancer in question.
If the claimant meets the requirements of subparagraph (A),
there shall be a presumption of eligibility for the scheduled
value of compensation unless there is evidence determined by
the Physicians Panel that rebuts that presumption. In making
its determination under this subparagraph, the Physicians
Panel shall consider the intensity and duration of exposure,
smoking history, and the quality of evidence relating to
exposure and smoking. Claimants shall bear the burden of
producing meaningful and credible evidence of their smoking
history as part of their claim submission.
(7) Malignant level vii.--
(A) In general.--To receive Level VII compensation, a
claimant shall provide--
(i) a diagnosis of a primary lung cancer disease on the
basis of findings by a board certified pathologist;
(ii) evidence of bilateral pleural plaques or bilateral
pleural thickening or bilateral pleural calcification;
(iii) evidence of 12 or more weighted years of substantial
occupational exposure to asbestos; and
(iv) supporting medical documentation establishing asbestos
exposure as a substantial contributing factor in causing the
lung cancer in question.
(B) Physicians panel.--A claimant filing a claim relating
to Level VII under this paragraph may request that the claim
be referred to a Physicians Panel for a determination of
whether the claimant qualifies for the disease category and
relevant smoking status. In making its determination under
this subparagraph, the Physicians Panel shall consider the
intensity and duration of exposure, smoking history, and the
quality of evidence relating to exposure and smoking.
Claimants shall bear the burden of producing meaningful and
credible evidence of their smoking history as part of their
claim submission.
(8) Malignant level viii.--
(A) In general.--To receive Level VIII compensation, a
claimant shall provide a diagnosis of--
(i) a primary lung cancer disease on the basis of findings
by a board certified pathologist;
(ii)(I)(aa) asbestosis based on a chest x-ray of at least
1/0 on the ILO scale and showing small irregular opacities of
shape or size, either ss, st, or tt, and present in both
lower lung zones; and
(bb) 10 or more weighted years of substantial occupational
exposure to asbestos;
(II)(aa) asbestosis based on a chest x-ray of at least 1/1
on the ILO scale and showing small irregular opacities of
shape or size, either ss, st, or tt, and present in both
lower lung zones; and
(bb) 8 or more weighted years of substantial occupational
exposure to asbestos;
(III) asbestosis determined by pathology and 10 or more
weighted years of substantial occupational exposure to
asbestos; or
(IV) asbestosis as determined by CT Scan, the cost of which
shall not be borne by the Fund. The CT Scan must be
interpreted by a
[[Page S3917]]
board certified radiologist and confirmed by a board
certified radiologist; and
(iii) supporting medical documentation establishing
asbestos exposure as a substantial contributing factor in
causing the lung cancer in question; and 10 or more weighted
years of substantial occupational exposure to asbestos.
(B) Physicians panel.--A claimant filing a claim with
respect to Level VIII under this paragraph may request that
the claim be referred to a Physicians Panel for a
determination of whether the claimant qualifies for the
disease category and relevant smoking status. In making its
determination under this subparagraph, the Physicians Panel
shall consider the intensity and duration of exposure,
smoking history, and the quality of evidence relating to
exposure and smoking. Claimants shall bear the burden of
producing meaningful and credible evidence of their smoking
history as part of their claim submission.
(9) Malignant level ix.--To receive Level IX compensation,
a claimant shall provide--
(A) a diagnosis of malignant mesothelioma disease on the
basis of findings by a board certified pathologist; and
(B) credible evidence of identifiable exposure to asbestos
resulting from--
(i) occupational exposure to asbestos;
(ii) exposure to asbestos fibers brought into the home of
the claimant by a worker occupationally exposed to asbestos;
(iii) exposure to asbestos fibers resulting from living or
working in the proximate vicinity of a factory, shipyard,
building demolition site, or other operation that regularly
released asbestos fibers into the air due to operations
involving asbestos at that site; or
(iv) other identifiable exposure to asbestos fibers, in
which case the claim shall be reviewed by a Physicians Panel
under section 121(f) for a determination of eligibility.
(e) Institute of Medicine Study.--Not later than April 1,
2006, the Institute of Medicine of the National Academy of
Sciences shall complete a study contracted with the National
Institutes of Health of the causal link between asbestos
exposure and other cancers, including colorectal, laryngeal,
esophageal, pharyngeal, and stomach cancers, except for
mesothelioma and lung cancers. The Institute of Medicine
shall issue a report on its findings on causation, which
shall be transmitted to Congress, the Administrator, the
Advisory Committee on Asbestos Disease Compensation or the
Medical Advisory Committee, and the Physicians Panels. The
Institute of Medicine report shall be binding on the
Administrator and the Physicians Panels for purposes of
determining whether asbestos exposure is a substantial
contributing factor under section 121(d)(6)(B).
(f) Exceptional Medical Claims.--
(1) In general.--A claimant who does not meet the medical
criteria requirements under this section may apply for
designation of the claim as an exceptional medical claim.
(2) Application.--When submitting an application for review
of an exceptional medical claim, the claimant shall--
(A) state that the claim does not meet the medical criteria
requirements under this section; or
(B) seek designation as an exceptional medical claim within
60 days after a determination that the claim is ineligible
solely for failure to meet the medical criteria requirements
under subsection (d).
(3) Report of physician.--
(A) In general.--Any claimant applying for designation of a
claim as an exceptional medical claim shall support an
application filed under paragraph (1) with a report from a
physician meeting the requirements of this section.
(B) Contents.--A report filed under subparagraph (A) shall
include--
(i) a complete review of the claimant's medical history and
current condition;
(ii) such additional material by way of analysis and
documentation as shall be prescribed by rule of the
Administrator; and
(iii) a detailed explanation as to why the claim meets the
requirements of paragraph (4)(B).
(4) Review.--
(A) In general.--The Administrator shall refer all
applications and supporting documentation submitted under
paragraph (2) to a Physicians Panel for review for
eligibility as an exceptional medical claim.
(B) Standard.--A claim shall be designated as an
exceptional medical claim if the claimant, for reasons beyond
the control of the claimant, cannot satisfy the requirements
under this section, but is able, through comparably reliable
evidence that meets the standards under this section, to show
that the claimant has an asbestos-related condition that is
substantially comparable to that of a medical condition that
would satisfy the requirements of a category under this
section.
(C) Additional information.--A Physicians Panel may request
additional reasonable testing to support the claimant's
application.
(D) CT scan.--A claimant may submit a CT Scan in addition
to an x-ray.
(5) Approval.--
(A) In general.--If the Physicians Panel determines that
the medical evidence is sufficient to show a comparable
asbestos-related condition, it shall issue a certificate of
medical eligibility designating the category of asbestos-
related injury under this section for which the claimant
shall be eligible to seek compensation.
(B) Referral.--Upon the issuance of a certificate under
subparagraph (A), the Physicians Panel shall submit the claim
to the Administrator, who shall give due consideration to the
recommendation of the Physicians Panel in determining whether
the claimant meets the requirements for compensation under
this Act.
(6) Resubmission.--Any claimant whose application for
designation as an exceptional medical claim is rejected may
resubmit an application if new evidence becomes available.
The application shall identify any prior applications and
state the new evidence that forms the basis of the
resubmission.
(7) Rules.--The Administrator shall promulgate rules
governing the procedures for seeking designation of a claim
as an exceptional medical claim.
(8) Libby, montana.--
(A) In general.--A Libby, Montana, claimant may elect to
have the claimant's claims designated as exceptional medical
claims and referred to a Physicians Panel for review. In
reviewing the medical evidence submitted by a Libby, Montana
claimant in support of that claim, the Physicians Panel shall
take into consideration the unique and serious nature of
asbestos exposure in Libby, Montana, including the nature of
the pleural disease related to asbestos exposure in Libby,
Montana.
(B) Claims.--For all claims for Levels II through IV filed
by Libby, Montana claimants, as described under subsection
(c)(4), once the Administrator or the Physicians Panel issues
a certificate of medical eligibility to a Libby, Montana
claimant, and notwithstanding the disease category designated
in the certificate or the eligible disease or condition
established in accordance with this section, or the value of
the award determined in accordance with section 114, the
Libby, Montana claimant shall be entitled to an award that is
not less than that awarded to claimants who suffer from
asbestosis, Level IV. For all malignant claims filed by
Libby, Montana claimants, the Libby, Montana claimant shall
be entitled to an award that corresponds to the malignant
disease category designated by the Administrator or the
Physicians Panel.
Subtitle D--Awards
SEC. 131. AMOUNT.
(a) In General.--An asbestos claimant who meets the
requirements of section 111 shall be entitled to an award in
an amount determined by reference to the benefit table and
the matrices developed under subsection (b).
(b) Benefit Table.--
(1) In general.--An asbestos claimant with an eligible
disease or condition established in accordance with section
121 shall be eligible for an award as determined under this
subsection. The award for all asbestos claimants with an
eligible disease or condition established in accordance with
section 121 shall be according to the following schedule:
Level Scheduled Condition Scheduled Value
or Disease
.................... ...........................
I Asbestosis/Pleural Medical Monitoring
Disease A
II Mixed Disease With $25,000
Impairment
III Asbestosis/Pleural $100,000
Disease B
IV Severe Asbestosis $400,000
V Disabling $850,000
Asbestosis
VI Other Cancer $200,000
VII Lung Cancer With smokers, $300,000;
Pleural Disease ex-smokers, $725,000;
non-smokers, $800,000
VIII Lung Cancer With smokers, $600,000;
Asbestosis ex-smokers, $975,000;
non-smokers, $1,100,000
IX Mesothelioma $1,100,000
(2) Definitions.--In this section--
(A) the term ``nonsmoker'' means a claimant who--
(i) never smoked; or
(ii) has smoked fewer than 100 cigarettes or the equivalent
of other tobacco products during the claimant's lifetime; and
(B) the term ``ex-smoker'' means a claimant who has not
smoked during any portion of the 12-year period preceding the
diagnosis of lung cancer.
(3) Level ix adjustments.--
(A) In general.--If the Administrator determines that the
impact of all adjustments under this paragraph on the Fund is
cost neutral, the Administrator may--
(i) increase awards for Level IX claimants who are less
than 51 years of age with dependent children; and
(ii) decrease awards for Level IX claimants who are at
least 65 years of age, but in no case shall an award for
Level IX be less than $1,000,000.
(B) Implementation.--Before making adjustments under this
paragraph, the Administrator shall publish in the Federal
Register notice of, and a plan for, making such adjustments.
(4) Special adjustment for fela cases.--
(A) In general.--A claimant who would be eligible to bring
a claim under the Act of April 22, 1908 (45 U.S.C. 51 et
seq.), commonly known as the Employers' Liability Act, but
for section 403 of this Act, shall be eligible for a special
adjustment under this paragraph.
[[Page S3918]]
(B) Regulations.--
(i) In general.--Not later than 90 days after the date of
enactment of this Act, the Administrator shall promulgate
regulations relating to special adjustments under this
paragraph.
(ii) Joint proposal.--Not later than 45 days after the date
of enactment of this Act, representatives of railroad
management and representatives of railroad labor shall submit
to the Administrator a joint proposal for regulations
describing the eligibility for and amount of special
adjustments under this paragraph. If a joint proposal is
submitted, the Administrator shall promulgate regulations
that reflect the joint proposal.
(iii) Absence of joint proposal.--If railroad management
and railroad labor are unable to agree on a joint proposal
within 45 days after the date of enactment of this Act, the
benefits prescribed in subparagraph (E) shall be the benefits
available to claimants, and the Administrator shall
promulgate regulations containing such benefits.
(iv) Review.--The parties participating in the arbitration
may file in the United States District Court for the District
of Columbia a petition for review of the Administrator's
order. The court shall have jurisdiction to affirm the order
of the Administrator, or to set it aside, in whole or in
part, or it may remand the proceedings to the Administrator
for such further action as it may direct. On such review, the
findings and order of the Administrator shall be conclusive
on the parties, except that the order of the Administrator
may be set aside, in whole or in parts or remanded to the
Administrator, for failure of the Administrator to comply
with the requirements of this section, for failure of the
order to conform, or confine itself, to matters within the
scope of the Administrator's jurisdiction, or for fraud or
corruption.
(C) Eligibility.--An individual eligible to file a claim
under the Act of April 22, 1908 (45 U.S.C. 51 et seq.),
commonly known as the Employers' Liability Act, shall be
eligible for a special adjustment under this paragraph if
such individual meets the criteria set forth in subparagraph
(F).
(D) Amount.--
(i) In general.--The amount of the special adjustment shall
be based on the type and severity of asbestos disease, and
shall be 110 percent of the average amount an injured
individual with a disease caused by asbestos, as described in
section 121(d) of this Act, would have received, during the
5-year period before the enactment of this Act, adjusted for
inflation. This adjustment shall be in addition to any other
award for which the claimant is eligible under this Act. The
amount of the special adjustment shall be reduced by an
amount reasonably calculated to take into account all
expenses of litigation normally borne by plaintiffs,
including attorney's fees.
(ii) Limitation.--The amount under clause (i) may not
exceed the amount the claimant is eligible to receive before
applying the special adjustment under that clause.
(E) Arbitrated benefits.--If railroad management and
railroad labor are unable to agree on a joint proposal within
45 days after the date of enactment of this Act, the
Administrator shall appoint an arbitrator to determine the
benefits under subparagraph (D). The Administrator shall
appoint an arbitrator who shall be acceptable to both
railroad management and railroad labor. Railroad management
and railroad labor shall each designate their representatives
to participate in the arbitration. The arbitrator shall
submit the benefits levels to the Administrator not later
than 30 days after appointment and such benefits levels shall
be based on information provided by rail labor and rail
management. The information submitted to the arbitrator by
railroad management and railroad labor shall be considered
confidential and shall be disclosed to the other party upon
execution of an appropriate confidentiality agreement. Unless
the submitting party provides written consent, neither the
arbitrator nor either party to the arbitration shall divulge
to any third party any information or data, in any form,
submitted to the arbitrator under this section. Nor shall
either party use such information or data for any purpose
other than participation in the arbitration proceeding, and
each party shall return to the other any information it has
received from the other party as soon the arbitration is
concluded. Information submitted to the arbitrator may not be
admitted into evidence, nor discovered, in any civil
litigation in Federal or State court. The nature of the
information submitted to the arbitrator shall be within the
sole discretion of the submitting party, and the arbitrator
may not require a party to submit any particular information,
including information subject to a prior confidentiality
agreement.
(F) Demonstration of eligibility.--
(i) In general.--A claimant under this paragraph shall be
required to demonstrate--
(I) employment of the claimant in the railroad industry;
(II) exposure of the claimant to asbestos as part of that
employment; and
(III) the nature and severity of the asbestos-related
injury.
(ii) Medical criteria.--In order to be eligible for a
special adjustment a claimant shall meet the criteria set
forth in section 121 that would qualify a claimant for a
payment under Level II or greater.
(5) Medical monitoring.--An asbestos claimant with
asymptomatic exposure, based on the criteria under section
121(d)(1), shall only be eligible for medical monitoring
reimbursement as provided under section 132.
(6) Cost-of-living adjustment.--
(A) In general.--Beginning January 1, 2007, award amounts
under paragraph (1) shall be annually increased by an amount
equal to such dollar amount multiplied by the cost-of-living
adjustment, rounded to the nearest $1,000 increment.
(B) Calculation of cost-of-living adjustment.--For the
purposes of subparagraph (A), the cost-of-living adjustment
for any calendar year shall be the percentage, if any, by
which the consumer price index for the succeeding calendar
year exceeds the consumer price index for calendar year 2005.
(C) Consumer price index.--
(i) In general.--For the purposes of subparagraph (B), the
consumer price index for any calendar year is the average of
the consumer price index as of the close of the 12-month
period ending on August 31 of such calendar year.
(ii) Definition.--For purposes of clause (i), the term
``consumer price index'' means the consumer price index
published by the Department of Labor. The consumer price
index series to be used for award escalations shall include
the consumer price index used for all-urban consumers, with
an area coverage of the United States city average, for all
items, based on the 1982-1984 index based period, as
published by the Department of Labor.
SEC. 132. MEDICAL MONITORING.
(a) Relation to Statute of Limitations.--The filing of a
claim under this Act that seeks reimbursement for medical
monitoring shall not be considered as evidence that the
claimant has discovered facts that would otherwise commence
the period applicable for purposes of the statute of
limitations under section 113(b).
(b) Costs.--Reimbursable medical monitoring costs shall
include the costs of a claimant not covered by health
insurance for an examination by the claimant's physician, x-
ray tests, and pulmonary function tests every 3 years.
(c) Regulations.--The Administrator shall promulgate
regulations that establish--
(1) the reasonable costs for medical monitoring that is
reimbursable; and
(2) the procedures applicable to asbestos claimants.
SEC. 133. PAYMENT.
(a) Structured Payments.--
(1) In general.--An asbestos claimant who is entitled to an
award should receive the amount of the award through
structured payments from the Fund, made over a period of 3
years, and in no event more than 4 years after the date of
final adjudication of the claim.
(2) Payment period and amount.--There shall be a
presumption that any award paid under this subsection shall
provide for payment of--
(A) 40 percent of the total amount in year 1;
(B) 30 percent of the total amount in year 2; and
(C) 30 percent of the total amount in year 3.
(3) Extension of payment period.--
(A) In general.--The Administrator shall develop guidelines
to provide for the payment period of an award under
subsection (a) to be extended to a 4-year period if such
action is warranted in order to preserve the overall solvency
of the Fund. Such guidelines shall include reference to the
number of claims made to the Fund and the awards made and
scheduled to be paid from the Fund as provided under section
405.
(B) Limitations.--In no event shall less than 50 percent of
an award be paid in the first 2 years of the payment period
under this subsection.
(4) Accelerated payments.--The Administrator shall develop
guidelines to provide for accelerated payments to asbestos
claimants who are mesothelioma victims and who are alive on
the date on which the Administrator receives notice of the
eligibility of the claimant. Such payments shall be credited
against the first regular payment under the structured
payment plan for the claimant.
(5) Expedited payments.--The Administrator shall develop
guidelines to provide for expedited payments to asbestos
claimants in cases of exigent circumstances or extreme
hardship caused by asbestos-related injury.
(6) Annuity.--An asbestos claimant may elect to receive any
payments to which that claimant is entitled under this title
in the form of an annuity.
(b) Limitation on Transferability.--A claim filed under
this Act shall not be assignable or otherwise transferable
under this Act.
(c) Creditors.--An award under this title shall be exempt
from all claims of creditors and from levy, execution, and
attachment or other remedy for recovery or collection of a
debt, and such exemption may not be waived.
(d) Medicare as Secondary Payer.--No award under this title
shall be deemed a payment for purposes of section 1862 of the
Social Security Act (42 U.S.C. 1395y).
(e) Exempt Property in Asbestos Claimant's Bankruptcy
Case.--If an asbestos claimant files a petition for relief
under section 301 of title 11, United States Code, no award
granted under this Act shall be treated as property of the
bankruptcy estate of the asbestos claimant in accordance with
section 541(b)(6) of title 11, United States Code.
SEC. 134. REDUCTION IN BENEFIT PAYMENTS FOR COLLATERAL
SOURCES.
(a) In General.--The amount of an award otherwise available
to an asbestos claimant
[[Page S3919]]
under this title shall be reduced by the amount of collateral
source compensation.
(b) Exclusions.--In no case shall statutory benefits under
workers' compensation laws, special adjustments made under
section 131(b)(3), occupational or total disability benefits
under the Railroad Retirement Act (45 U.S.C. 201 et seq.),
sickness benefits under the Railroad Unemployment Insurance
Act (45 U.S.C 351 et seq.), and veterans' benefits programs
be deemed as collateral source compensation for purposes of
this section.
SEC. 135. CERTAIN CLAIMS NOT AFFECTED BY PAYMENT OF AWARDS.
(a) In General.--The payment of an award under section 106
or 133 shall not be considered a form of compensation or
reimbursement for a loss for purposes of imposing liability
on any asbestos claimant receiving such payment to repay
any--
(1) insurance carrier for insurance payments; or
(2) person or governmental entity on account of worker's
compensation, health care, or disability payments.
(b) No Effect on Claims.--The payment of an award to an
asbestos claimant under section 106 or 133 shall not affect
any claim of an asbestos claimant against--
(1) an insurance carrier with respect to insurance; or
(2) against any person or governmental entity with respect
to worker's compensation, healthcare, or disability.
TITLE II--ASBESTOS INJURY CLAIMS RESOLUTION FUND
Subtitle A--Asbestos Defendants Funding Allocation
SEC. 201. DEFINITIONS.
In this subtitle, the following definitions shall apply:
(1) Affiliated group.--The term ``affiliated group''--
(A) means a defendant participant that is an ultimate
parent and any person whose entire beneficial interest is
directly or indirectly owned by that ultimate parent on the
date of enactment of this Act; and
(B) shall not include any person that is a debtor or any
direct or indirect majority-owned subsidiary of a debtor.
(2) Class action trust.--The term ``class action trust''
means a trust or similar entity established to hold assets
for the payment of asbestos claims asserted against a debtor
or participating defendant, under a settlement that--
(A) is a settlement of class action claims under rule 23 of
the Federal Rules of Civil Procedure; and
(B) has been approved by a final judgment of a United
States district court before the date of enactment of this
Act.
(3) Debtor.--The term ``debtor''--
(A) means--
(i) a person that is subject to a case pending under a
chapter of title 11, United States Code, on the date of
enactment of this Act or at any time during the 1-year period
immediately preceding that date, irrespective of whether the
debtor's case under that title has been dismissed; and
(ii) all of the direct or indirect majority-owned
subsidiaries of a person described under clause (i),
regardless of whether any such majority-owned subsidiary has
a case pending under title 11, United States Code; and
(B) shall not include an entity--
(i) subject to chapter 7 of title 11, United States Code,
if a final decree closing the estate shall have been entered
before the date of enactment of this Act; or
(ii) subject to chapter 11 of title 11, United States Code,
if a plan of reorganization for such entity shall have been
confirmed by a duly entered order or judgment of a court that
is no longer subject to any appeal or judicial review, and
the substantial consummation, as such term is defined in
section 1101(2) of title 11, United States Code, of such plan
of reorganization has occurred.
(4) Indemnifiable cost.--The term ``indemnifiable cost''
means a cost, expense, debt, judgment, or settlement incurred
with respect to an asbestos claim that, at any time before
December 31, 2002, was or could have been subject to
indemnification, contribution, surety, or guaranty.
(5) Indemnitee.--The term ``indemnitee'' means a person
against whom any asbestos claim has been asserted before
December 31, 2002, who has received from any other person, or
on whose behalf a sum has been paid by such other person to
any third person, in settlement, judgment, defense, or
indemnity in connection with an alleged duty with respect to
the defense or indemnification of such person concerning that
asbestos claim, other than under a policy of insurance or
reinsurance.
(6) Indemnitor.--The term ``indemnitor'' means a person who
has paid under a written agreement at any time before
December 31, 2002, a sum in settlement, judgment, defense, or
indemnity to or on behalf of any person defending against an
asbestos claim, in connection with an alleged duty with
respect to the defense or indemnification of such person
concerning that asbestos claim, except that payments by an
insurer or reinsurer under a contract of insurance or
reinsurance shall not make the insurer or reinsurer an
indemnitor for purposes of this subtitle.
(7) Prior asbestos expenditures.--The term ``prior asbestos
expenditures''--
(A) means the gross total amount paid by or on behalf of a
person at any time before December 31, 2002, in settlement,
judgment, defense, or indemnity costs related to all asbestos
claims against that person;
(B) includes payments made by insurance carriers to or for
the benefit of such person or on such person's behalf with
respect to such asbestos claims, except as provided in
section 204(g);
(C) shall not include any payment made by a person in
connection with or as a result of changes in insurance
reserves required by contract or any activity or dispute
related to insurance coverage matters for asbestos-related
liabilities; and
(D) shall not include any payment made by or on behalf of
persons who are or were common carriers by railroad for
asbestos claims brought under the Act of April 22, 1908 (45
U.S.C. 51 et seq.), commonly known as the Employers'
Liability Act, as a result of operations as a common carrier
by railroad, including settlement, judgment, defense, or
indemnity costs associated with these claims.
(8) Trust.--The term ``trust'' means any trust, as
described in sections 524(g)(2)(B)(i) or 524(h) of title 11,
United States Code, or established in conjunction with an
order issued under section 105 of title 11, United States
Code, established or formed under the terms of a chapter 11
plan of reorganization, which in whole or in part provides
compensation for asbestos claims.
(9) Ultimate parent.--The term ``ultimate parent'' means a
person--
(A) that owned, as of December 31, 2002, the entire
beneficial interest, directly or indirectly, of at least 1
other person; and
(B) whose entire beneficial interest was not owned, on
December 31, 2002, directly or indirectly, by any other
single person (other than a natural person).
SEC. 202. AUTHORITY AND TIERS.
(a) Liability for Payments to the Fund.--
(1) In general.--Defendant participants shall be liable for
payments to the Fund in accordance with this section based on
tiers and subtiers assigned to defendant participants.
(2) Aggregate payment obligations level.--The total
payments required of all defendant participants over the life
of the Fund shall not exceed a sum equal to $90,000,000,000
less any bankruptcy trust credits under section 222(e). The
Administrator shall have the authority to allocate the
payments required of the defendant participants among the
tiers as provided in this title.
(3) Ability to enter reorganization.--Notwithstanding any
other provision of this Act, all debtors that, together with
all of their direct or indirect majority-owned subsidiaries,
have prior asbestos expenditures less than $1,000,000 may
proceed with the filing, solicitation, and confirmation of a
plan of reorganization that does not comply with the
requirements of this Act, including a trust and channeling
injunction under section 524(g) of title 11, United States
Code. Any asbestos claim made in conjunction with a plan of
reorganization allowable under the preceding sentence shall
be subject to section 403(d) of this Act.
(b) Tier I.--Tier I shall include all debtors that,
together with all of their direct or indirect majority-owned
subsidiaries, have prior asbestos expenditures greater than
$1,000,000.
(c) Treatment of Tier I Business Entities in Bankruptcy.--
(1) Definition.--
(A) In general.--In this subsection, the term ``bankrupt
business entity'' means a person that is not a natural person
that--
(i) filed a petition for relief under chapter 11, of title
11, United States Code, before January 1, 2003;
(ii) has not substantially consummated, as such term is
defined under section 1101(2) of title 11, United States
Code, a plan of reorganization as of the date of enactment of
this Act; and
(iii) the bankruptcy court presiding over the business
entity's case determines, after notice and a hearing upon
motion filed by the entity within 30 days after the date of
enactment of this Act, that asbestos liability was not the
sole or precipitating cause of the entity's chapter 11
filing.
(B) Motion and related matters.--A motion under
subparagraph (A)(iii) shall be supported by--
(i) an affidavit or declaration of the chief executive
officer, chief financial officer, or chief legal officer of
the business entity; and
(ii) copies of the entity's public statements and
securities filings made in connection with the entity's
filing for chapter 11 protection.
Notice of such motion shall be as directed by the bankruptcy
court, and the hearing shall be limited to consideration of
the question of whether or not asbestos liability was the
sole or precipitating cause of the entity's chapter 11
filing. The bankruptcy court shall hold a hearing and make
its determination with respect to the motion within 60 days
after the date the motion is filed. In making its
determination, the bankruptcy court shall take into account
the affidavits, public statements, and securities filings,
and other information, if any, submitted by the entity and
all other facts and circumstances presented by an objecting
party. Any review of this determination shall be an expedited
appeal and limited to whether the decision was against the
weight of the evidence. Any appeal of a determination shall
be an expedited review to the United States Circuit Court of
Appeals for the circuit in which the bankruptcy is filed.
[[Page S3920]]
(2) Proceeding with reorganization plan.--A bankrupt
business entity may proceed with the filing, solicitation,
confirmation, and consummation of a plan of reorganization
that does not comply with the requirements of this Act,
including a trust and channeling injunction described in
section 524(g) of title 11, United States Code,
notwithstanding any other provisions of this Act, if the
bankruptcy court makes a favorable determination under
paragraph (1)(B), unless the bankruptcy court's determination
is overruled on appeal and all appeals are final. Such a
bankrupt business entity may continue to so proceed, if--
(A) on request of a party in interest or on a motion of the
court, and after a notice and a hearing, the bankruptcy court
presiding over the chapter 11 case of the bankrupt business
entity determines that--
(i) confirmation is necessary to permit the reorganization
of that entity and assure that all creditors and that entity
are treated fairly and equitably; and
(ii) confirmation is clearly favored by the balance of the
equities; and
(B) an order confirming the plan of reorganization is
entered by the bankruptcy court within 9 months after the
date of enactment of this Act or such longer period of time
approved by the bankruptcy court for cause shown.
(3) Applicability.--If the bankruptcy court does not make
the determination required under paragraph (2), or if an
order confirming the plan is not entered 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, the
provisions of this Act shall apply to the bankrupt business
entity notwithstanding the certification. Any timely appeal
under title 11, United States Code, from a confirmation order
entered during the applicable time period shall automatically
extend the time during which this Act is inapplicable to the
bankrupt business entity, until the appeal is fully and
finally resolved.
(4) Offsets.--
(A) Payments by insurers.--To the extent that a bankrupt
business entity or debtor successfully confirms a plan of
reorganization, including a trust, and channeling injunction
that involves payments by insurers who are otherwise subject
to this Act as described under section 524(g) of title 11,
United States Code, an insurer who makes payments to the
trust shall obtain a dollar-for-dollar reduction in the
amount otherwise payable by that insurer under this Act to
the Fund.
(B) Contributions to fund.--Any cash payments by a bankrupt
business entity, if any, to a trust described 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 section 204
and subsection (b) of this section, persons or affiliated
groups are included in Tier II, III, IV, V, or VI, according
to the prior asbestos expenditures paid by such persons or
affiliated groups as follows:
(1) Tier II: $75,000,000 or greater.
(2) Tier III: $50,000,000 or greater, but less than
$75,000,000.
(3) Tier IV: $10,000,000 or greater, but less than
$50,000,000.
(4) Tier V: $5,000,000 or greater, but less than
$10,000,000.
(5) Tier VI: $1,000,000 or greater, but less than
$5,000,000.
(e) Tier Placement and Costs.--
(1) Permanent tier placement.--After a defendant
participant or affiliated group is assigned to a tier and
subtier under section 204(i)(6), the participant or
affiliated group shall remain in that tier and subtier
throughout the life of the Fund, regardless of subsequent
events, including--
(A) the filing of a petition under a chapter of title 11,
United States Code;
(B) a discharge of debt in bankruptcy;
(C) the confirmation of a plan of reorganization; or
(D) the sale or transfer of assets to any other person or
affiliated group, unless the Administrator finds that the
information submitted by the participant or affiliated group
to support its inclusion in that tier was inaccurate.
(2) Costs.--Payments to the Fund by all persons that are
the subject of a case under a chapter of title 11, United
States Code, after the date of enactment of this Act--
(A) shall constitute costs and expenses of administration
of the case under section 503 of title 11, United States
Code, and shall be payable in accordance with the payment
provisions under this subtitle notwithstanding the pendency
of the case under that title 11;
(B) shall not be stayed or affected as to enforcement or
collection by any stay or injunction power of any court; and
(C) shall not be impaired or discharged in any current or
future case under title 11, United States Code.
(f) Superseding Provisions.--
(1) In general.--All of the following shall be superseded
in their entireties by this Act:
(A) The treatment of any asbestos claim in any plan of
reorganization with respect to any debtor included in Tier I.
(B) Any asbestos claim against any debtor included in Tier
I.
(C) Any agreement, understanding, or undertaking by any
such debtor or any third party with respect to the treatment
of any asbestos claim filed in a debtor's bankruptcy case or
with respect to a debtor before the date of enactment of this
Act, whenever such debtor's case is either still pending, if
such case is pending under a chapter other than chapter 11 of
title 11, United States Code, or subject to confirmation or
substantial consummation of a plan of reorganization under
chapter 11 of title 11, United States Code.
(2) Prior agreements of no effect.--Notwithstanding section
403(c)(3), any plan of reorganization, agreement,
understanding, or undertaking by any debtor (including any
pre-petition agreement, understanding, or undertaking that
requires future performance) or any third party under
paragraph (1), and any agreement, understanding, or
undertaking entered into in anticipation, contemplation, or
furtherance of a plan of reorganization, to the extent it
relates to any asbestos claim, shall be of no force or
effect, and no person shall have any right or claim with
respect to any such agreement, understanding, or undertaking.
SEC. 203. SUBTIERS.
(a) In General.--
(1) Subtier liability.--Except as otherwise provided under
subsections (b), (d), and (l) of section 204, persons or
affiliated groups shall be included within Tiers I through
VII and shall pay amounts to the Fund in accordance with this
section.
(2) Revenues.--
(A) In general.--For purposes of this section, revenues
shall be determined in accordance with generally accepted
accounting principles, consistently applied, using the amount
reported as revenues in the annual report filed with the
Securities and Exchange Commission in accordance with the
Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) for
the most recent fiscal year ending on or before December 31,
2002. If the defendant participant or affiliated group does
not file reports with the Securities and Exchange Commission,
revenues shall be the amount that the defendant participant
or affiliated group would have reported as revenues under the
rules of the Securities and Exchange Commission in the event
that it had been required to file.
(B) Insurance premiums.--Any portion of revenues of a
defendant participant that is derived from insurance premiums
shall not be used to calculate the payment obligation of that
defendant participant under this subtitle.
(C) Debtors.--Each debtor's revenues shall include the
revenues of the debtor and all of the direct or indirect
majority-owned subsidiaries of that debtor, except that the
pro forma revenues of a person that is included in Subtier 2
of Tier I shall not be included in calculating the revenues
of any debtor that is a direct or indirect majority owner of
such Subtier 2 person. If a debtor or affiliated group
includes a person in respect of whose liabilities for
asbestos claims a class action trust has been established,
there shall be excluded from the 2002 revenues of such debtor
or affiliated group--
(i) all revenues of the person in respect of whose
liabilities for asbestos claims the class action trust was
established; and
(ii) all revenues of the debtor and affiliated group
attributable to the historical business operations or assets
of such person, regardless of whether such business
operations or assets were owned or conducted during the year
2002 by such person or by any other person included within
such debtor and affiliated group.
(b) Tier I Subtiers.--
(1) In general.--Each debtor in Tier I shall be included in
subtiers and shall pay amounts to the Fund as provided under
this section.
(2) Subtier 1.--
(A) In general.--All persons that are debtors with prior
asbestos expenditures of $1,000,000 or greater, shall be
included in Subtier 1.
(B) Payment.--Each debtor included in Subtier 1 shall pay
on an annual basis 1.67024 percent of the debtor's 2002
revenues.
(C) Other assets.--The Administrator, at the sole
discretion of the Administrator, may allow a Subtier 1 debtor
to satisfy its funding obligation under this paragraph with
assets other than cash if the Administrator determines that
requiring an all-cash payment of the debtor's funding
obligation would render the debtor's reorganization
infeasible.
(D) Liability.--
(i) In general.--If a person who is subject to a case
pending under a chapter of title 11, United States Code, as
defined in section 201(3)(A)(i), does not pay when due any
payment obligation for the debtor, the Administrator shall
have the right to seek payment of all or any portion of the
entire amount due (as well as any other amount for which the
debtor may be liable under sections 223 and 224) from any of
the direct or indirect majority-owned subsidiaries under
section 201(3)(A)(ii).
(ii) Cause of action.--Notwithstanding section 221(e), this
Act shall not preclude actions among persons within a debtor
under section 201(3)(A) (i) and (ii) with respect to the
payment obligations under this Act.
(iii) Right of contribution.--
(I) In general.--Notwithstanding any other provision of
this Act, if a direct or indirect majority-owned foreign
subsidiary of a debtor participant (with such relationship to
the debtor participant as determined on the date of enactment
of this Act) is or becomes subject to any foreign insolvency
proceedings, and such foreign direct or indirect-majority
owned subsidiary is liquidated in connection with such
foreign insolvency proceedings (or if the debtor
participant's interest in such foreign subsidiary is
otherwise
[[Page S3921]]
canceled or terminated in connection with such foreign
insolvency proceedings), the debtor participant shall have a
claim against such foreign subsidiary or the estate of such
foreign subsidiary in an amount equal to the greater of--
(aa) the estimated amount of all current and future
asbestos liabilities against such foreign subsidiary; or
(bb) the foreign subsidiary's allocable share of the debtor
participant's funding obligations to the Fund as determined
by such foreign subsidiary's allocable share of the debtor
participant's 2002 gross revenue.
(II) Determination of claim amount.--The claim amount under
subclause (I) (aa) or (bb) shall be determined by a court of
competent jurisdiction in the United States.
(III) Effect on payment obligation.--The right to, or
recovery under, any such claim shall not reduce, limit,
delay, or otherwise affect the debtor participant's payment
obligations under this Act.
(iv) Maximum annual payment obligation.--Subject to any
payments under sections 204(l) and 222(d), and paragraphs
(3), (4), and (5) of this subsection, the annual payment
obligation by a debtor under subparagraph (B) of this
paragraph shall not exceed $80,000,000.
(3) Subtier 2.--
(A) In general.--Notwithstanding paragraph (2), all persons
that are debtors that have no material continuing business
operations but hold cash or other assets that have been
allocated or earmarked for the settlement of asbestos claims
shall be included in Subtier 2.
(B) Assignment of assets.--Not later than 90 days after the
date of enactment of this Act, each person included in
Subtier 2 shall assign all of its assets to the Fund.
(4) Subtier 3.--
(A) In general.--Notwithstanding paragraph (2), all persons
that are debtors other than those included in Subtier 2,
which have no material continuing business operations and no
cash or other assets allocated or earmarked for the
settlement of any asbestos claim, shall be included in
Subtier 3.
(B) Assignment of unencumbered assets.--Not later than 90
days after the date of enactment of this Act, each person
included in Subtier 3 shall contribute an amount equal to 50
percent of its total unencumbered assets.
(C) Calculation of unencumbered assets.--Unencumbered
assets shall be calculated as the Subtier 3 person's total
assets, excluding insurance-related assets, less--
(i) all allowable administrative expenses;
(ii) allowable priority claims under section 507 of title
11, United States Code; and
(iii) allowable secured claims.
(5) Class action trust.--The assets of any class action
trust that has been established in respect of the liabilities
for asbestos claims of any person included within a debtor
and affiliated group that has been included in Tier I
(exclusive of any assets needed to pay previously incurred
expenses and asbestos claims within the meaning of section
403(d)(1), before the date of enactment of this Act) shall be
transferred to the Fund not later than 6 months after the
date of enactment of this Act.
(c) Tier II Subtiers.--
(1) In general.--Each person or affiliated group in Tier II
shall be included in 1 of the 5 subtiers of Tier II, based on
the person's or affiliated group's revenues. Such subtiers
shall each contain as close to an equal number of total
persons and affiliated groups as possible, with--
(A) those persons or affiliated groups with the highest
revenues included in Subtier 1;
(B) those persons or affiliated groups with the next
highest revenues included in Subtier 2;
(C) those persons or affiliated groups with the lowest
revenues included in Subtier 5;
(D) those persons or affiliated groups with the next lowest
revenues included in Subtier 4; and
(E) those persons or affiliated groups remaining included
in Subtier 3.
(2) Payments.--Each person or affiliated group within each
subtier shall pay, on an annual basis, the following:
(A) Subtier 1: $27,500,000.
(B) Subtier 2: $24,750,000.
(C) Subtier 3: $22,000,000.
(D) Subtier 4: $19,250,000.
(E) Subtier 5: $16,500,000.
(d) Tier III Subtiers.--
(1) In general.--Each person or affiliated group in Tier
III shall be included in 1 of the 5 subtiers of Tier III,
based on the person's or affiliated group's revenues. Such
subtiers shall each contain as close to an equal number of
total persons and affiliated groups as possible, with--
(A) those persons or affiliated groups with the highest
revenues included in Subtier 1;
(B) those persons or affiliated groups with the next
highest revenues included in Subtier 2;
(C) those persons or affiliated groups with the lowest
revenues included in Subtier 5;
(D) those persons or affiliated groups with the next lowest
revenues included in Subtier 4; and
(E) those persons or affiliated groups remaining included
in Subtier 3.
(2) Payments.--Each person or affiliated group within each
subtier shall pay, on an annual basis, the following:
(A) Subtier 1: $16,500,000.
(B) Subtier 2: $13,750,000.
(C) Subtier 3: $11,000,000.
(D) Subtier 4: $8,250,000.
(E) Subtier 5: $5,500,000.
(e) Tier IV Subtiers.--
(1) In general.--Each person or affiliated group in Tier IV
shall be included in 1 of the 4 subtiers of Tier IV, based on
the person's or affiliated group's revenues. Such subtiers
shall each contain as close to an equal number of total
persons and affiliated groups as possible, with those persons
or affiliated groups with the highest revenues in Subtier 1,
those with the lowest revenues in Subtier 4. Those persons or
affiliated groups with the highest revenues among those
remaining will be included in Subtier 2 and the rest in
Subtier 3.
(2) Payment.--Each person or affiliated group within each
subtier shall pay, on an annual basis, the following:
(A) Subtier 1: $3,850,000.
(B) Subtier 2: $2,475,000.
(C) Subtier 3: $1,650,000.
(D) Subtier 4: $550,000.
(f) Tier V Subtiers.--
(1) In general.--Each person or affiliated group in Tier V
shall be included in 1 of the 3 subtiers of Tier V, based on
the person's or affiliated group's revenues. Such subtiers
shall each contain as close to an equal number of total
persons and affiliated groups as possible, with those persons
or affiliated groups with the highest revenues in Subtier 1,
those with the lowest revenues in Subtier 3, and those
remaining in Subtier 2.
(2) Payment.--Each person or affiliated group within each
subtier shall pay, on an annual basis, the following:
(A) Subtier 1: $1,000,000.
(B) Subtier 2: $500,000.
(C) Subtier 3: $200,000.
(g) Tier VI Subtiers.--
(1) In general.--Each person or affiliated group in Tier VI
shall be included in 1 of the 3 subtiers of Tier VI, based on
the person's or affiliated group's revenues. Such subtiers
shall each contain as close to an equal number of total
persons and affiliated groups as possible, with those persons
or affiliated groups with the highest revenues in Subtier 1,
those with the lowest revenues in Subtier 3, and those
remaining in Subtier 2.
(2) Payment.--Each person or affiliated group within each
subtier shall pay, on an annual basis, the following:
(A) Subtier 1: $500,000.
(B) Subtier 2: $250,000.
(C) Subtier 3: $100,000.
(h) Tier VII.--
(1) In general.--Notwithstanding prior asbestos
expenditures that might qualify a person or affiliated group
to be included in Tiers II, III, IV, V, or VI, a person or
affiliated group shall also be included in Tier VII, if the
person or affiliated group--
(A) is or has at any time been subject to asbestos claims
brought under the Act of April 22, 1908 (45 U.S.C. 51 et
seq.), commonly known as the Employers' Liability Act, as a
result of operations as a common carrier by railroad; and
(B) has paid (including any payments made by others on
behalf of such person or affiliated group) not less than
$5,000,000 in settlement, judgment, defense, or indemnity
costs relating to such claims.
(2) Additional amount.--The payment requirement for persons
or affiliated groups included in Tier VII shall be in
addition to any payment requirement applicable to such person
or affiliated group under Tiers II through VI.
(3) Subtier 1.--Each person or affiliated group in Tier VII
with revenues of $6,000,000,000 or more is included in
Subtier 1 and shall make annual payments of $11,000,000 to
the Fund.
(4) Subtier 2.--Each person or affiliated group in Tier VII
with revenues of less than $6,000,000,000, but not less than
$4,000,000,000 is included in Subtier 2 and shall make annual
payments of $5,500,000 to the Fund.
(5) Subtier 3.--Each person or affiliated group in Tier VII
with revenues of less than $4,000,000,000, but not less than
$500,000,000 is included in Subtier 3 and shall make annual
payments of $550,000 to the Fund.
(6) Joint venture revenues and liability.--
(A) Revenues.--For purposes of this subsection, the
revenues of a joint venture shall be included on a pro rata
basis reflecting relative joint ownership to calculate the
revenues of the parents of that joint venture. The joint
venture shall not be responsible for a contribution amount
under this subsection.
(B) Liability.--For purposes of this subsection, the
liability under the Act of April 22, 1908 (45 U.S.C. 51 et
seq.), commonly known as the Employers' Liability Act, shall
be attributed to the parent owners of the joint venture on a
pro rata basis, reflecting their relative share of ownership.
The joint venture shall not be responsible for a payment
amount under this provision.
SEC. 204. ASSESSMENT ADMINISTRATION.
(a) In General.--Each defendant participant or affiliated
group shall pay to the Fund in the amounts provided under
this subtitle as appropriate for its tier and subtier each
year until the earlier to occur of the following:
(1) The participant or affiliated group has satisfied its
obligations under this subtitle during the 30 annual payment
cycles of the operation of the Fund.
(2) The amount received by the Fund from defendant
participants, excluding any amounts rebated to defendant
participants under subsection (d), equals the maximum
aggregate payment obligation of section 202(a)(2).
[[Page S3922]]
(b) Small Business Exemption.--Notwithstanding any other
provision of this subtitle, a person or affiliated group that
is a small business concern (as defined under section 3 of
the Small Business Act (15 U.S.C. 632)), on December 31,
2002, is exempt from any payment requirement under this
subtitle and shall not be included in the subtier allocations
under section 203.
(c) Procedures.--The Administrator shall prescribe
procedures on how amounts payable under this subtitle are to
be paid, including, to the extent the Administrator
determines appropriate, procedures relating to payment in
installments.
(d) Adjustments.--
(1) In general.--Under expedited procedures established by
the Administrator, a defendant participant may seek
adjustment of the amount of its payment obligation based on
severe financial hardship or demonstrated inequity. The
Administrator may determine whether to grant an adjustment
and the size of any such adjustment, in accordance with this
subsection. A defendant participant has a right to obtain a
rehearing of the Administrator's determination under this
subsection under the procedures prescribed in subsection
(i)(10). The Administrator may adjust a defendant
participant's payment obligations under this subsection,
either by forgiving the relevant portion of the otherwise
applicable payment obligation or by providing relevant
rebates from the defendant hardship and inequity adjustment
account created under subsection (j) after payment of the
otherwise applicable payment obligation, at the discretion of
the Administrator.
(2) Financial hardship adjustments.--
(A) In general.--A defendant participant may apply for an
adjustment based on financial hardship at any time during the
period in which a payment obligation to the Fund remains
outstanding and may qualify for such adjustment by
demonstrating that the amount of its payment obligation under
the statutory allocation would constitute a severe financial
hardship.
(B) Term.--Subject to the annual availability of funds in
the defendant hardship and inequity adjustment account
established under subsection (j), a financial hardship
adjustment under this subsection shall have a term of 3
years.
(C) Renewal.--After an initial hardship adjustment is
granted under this paragraph, a defendant participant may
renew its hardship adjustment by demonstrating that it
remains justified.
(D) Reinstatement.--Following the expiration of the
hardship adjustment period provided for under this section
and during the funding period prescribed under subsection
(a), the Administrator shall annually determine whether there
has been a material change in the financial condition of the
defendant participant such that the Administrator may,
consistent with the policies and legislative intent
underlying this Act, reinstate under terms and conditions
established by the Administrator any part or all of the
defendant participant's payment obligation under the
statutory allocation that was not paid during the hardship
adjustment term.
(3) Inequity adjustments.--
(A) In general.--A defendant participant--
(i) may qualify for an adjustment based on inequity by
demonstrating that the amount of its payment obligation under
the statutory allocation is exceptionally inequitable--
(I) when measured against the amount of the likely cost to
the defendant participant net of insurance of its future
liability in the tort system in the absence of the Fund;
(II) when compared to the median payment rate for all
defendant participants in the same tier; or
(III) when measured against the percentage of the prior
asbestos expenditures of the defendant that were incurred
with respect to claims that neither resulted in an adverse
judgment against the defendant, nor were the subject of a
settlement that required a payment to a plaintiff by or on
behalf of that defendant;
(ii) shall qualify for a two-tier main tier and a two-tier
subtier adjustment reducing the defendant participant's
payment obligation based on inequity by demonstrating that
not less than 95 percent of such person's prior asbestos
expenditures arose from claims related to the manufacture and
sale of railroad locomotives and related products, so long as
such person's manufacture and sale of railroad locomotives
and related products is temporally and causally remote, and
for purposes of this clause, a person's manufacture and sale
of railroad locomotives and related products shall be deemed
to be temporally and causally remote if the asbestos claims
historically and generally filed against such person relate
to the manufacture and sale of railroad locomotives and
related products by an entity dissolved more than 25 years
before the date of enactment of this Act; and
(iii) shall be granted a two-tier adjustment reducing the
defendant participant's payment obligation based on inequity
by demonstrating that not less than 95 percent of such
participant's prior asbestos expenditures arose from asbestos
claims based on successor liability arising from a merger to
which the participant or its predecessor was a party that
occurred at least 30 years before the date of enactment of
this Act, and that such prior asbestos expenditures exceed
the inflation-adjusted value of the assets of the company
from which such liability was derived in such merger, and
upon such demonstration the Administrator shall grant such
adjustment for the life of the Fund and amounts paid by such
defendant participant prior to such adjustment in excess of
its adjusted payment obligation under this clause shall be
credited against next succeeding required payment
obligations.
(B) Payment rate.--For purposes of subparagraph (A), the
payment rate of a defendant participant is the payment amount
of the defendant participant as a percentage of such
defendant participant's gross revenues for the year ending
December 31, 2002.
(C) Term.--Subject to the annual availability of funds in
the defendant hardship and inequity adjustment account
established under subsection (j), an inequity adjustment
under this subsection shall have a term of 3 years.
(D) Renewal.--A defendant participant may renew an inequity
adjustment every 3 years by demonstrating that the adjustment
remains justified.
(E) Reinstatement.--
(i) In general.--Following the termination of an inequity
adjustment under subparagraph (A), and during the funding
period prescribed under subsection (a), the Administrator
shall annually determine whether there has been a material
change in conditions which would support a finding that the
amount of the defendant participant's payment under the
statutory allocation was not inequitable. Based on this
determination, the Administrator may, consistent with the
policies and legislative intent underlying this Act,
reinstate any or all of the payment obligations of the
defendant participant as if the inequity adjustment had not
been granted for that 3-year period.
(ii) Terms and conditions.--In the event of a reinstatement
under clause (i), the Administrator may require the defendant
participant to pay any part or all of amounts not paid due to
the inequity adjustment on such terms and conditions as
established by the Administrator.
(4) Limitation on adjustments.--The aggregate total of
financial hardship adjustments under paragraph (2) and
inequity adjustments under paragraph (3) in effect in any
given year shall not exceed $300,000,000, except to the
extent additional monies are available for such adjustments
as a result of carryover of prior years' funds under
subsection (j)(3) or as a result of monies being made
available in that year under subsection (k)(1)(A).
(5) Advisory panels.--
(A) Appointment.--The Administrator shall appoint a
Financial Hardship Adjustment Panel and an Inequity
Adjustment Panel to advise the Administrator in carrying out
this subsection.
(B) Membership.--The membership of the panels appointed
under subparagraph (A) may overlap.
(C) Coordination.--The panels appointed under subparagraph
(A) shall coordinate their deliberations and advice.
(e) Limitation on Liability.--The liability of each
defendant participant to pay to the Fund shall be limited to
the payment obligations under this Act, and, except as
provided in subsection (f) and section 203(b)(2)(D), no
defendant participant shall have any liability for the
payment obligations of any other defendant participant.
(f) Consolidation of Payments.--
(1) In general.--For purposes of determining the payment
levels of defendant participants, any affiliated group
including 1 or more defendant participants may irrevocably
elect, as part of the submissions to be made under paragraphs
(1) and (3) of subsection (i), to report on a consolidated
basis all of the information necessary to determine the
payment level under this subtitle and pay to the Fund on a
consolidated basis.
(2) Election.--If an affiliated group elects consolidation
as provided in this subsection--
(A) for purposes of this Act other than this subsection,
the affiliated group shall be treated as if it were a single
participant, including with respect to the assessment of a
single annual payment under this subtitle for the entire
affiliated group;
(B) the ultimate parent of the affiliated group shall
prepare and submit each submission to be made under
subsection (i) on behalf of the entire affiliated group and
shall be solely liable, as between the Administrator and the
affiliated group only, for the payment of the annual amount
due from the affiliated group under this subtitle, except
that, if the ultimate parent does not pay when due any
payment obligation for the affiliated group, the
Administrator shall have the right to seek payment of all or
any portion of the entire amount due (as well as any other
amount for which the affiliated group may be liable under
sections 223 and 224) from any member of the affiliated
group;
(C) all members of the affiliated group shall be identified
in the submission under subsection (i) and shall certify
compliance with this subsection and the Administrator's
regulations implementing this subsection; and
(D) the obligations under this subtitle shall not change
even if, after the date of enactment of this Act, the
beneficial ownership interest between any members of the
affiliated group shall change.
(3) Cause of action.--Notwithstanding section 221(e), this
Act shall not preclude actions among persons within an
affiliated group with respect to the payment obligations
under this Act.
(g) Determination of Prior Asbestos Expenditures.--
[[Page S3923]]
(1) In general.--For purposes of determining a defendant
participant's prior asbestos expenditures, the Administrator
shall prescribe such rules as may be necessary or appropriate
to assure that payments by indemnitors before December 31,
2002, shall be counted as part of the indemnitor's prior
asbestos expenditures, rather than the indemnitee's prior
asbestos expenditures, in accordance with this subsection.
(2) Indemnifiable costs.--If an indemnitor has paid or
reimbursed to an indemnitee any indemnifiable cost or
otherwise made a payment on behalf of or for the benefit of
an indemnitee to a third party for an indemnifiable cost
before December 31, 2002, the amount of such indemnifiable
cost shall be solely for the account of the indemnitor for
purposes under this Act.
(3) Insurance payments.--When computing the prior asbestos
expenditures with respect to an asbestos claim, any amount
paid or reimbursed by insurance shall be solely for the
account of the indemnitor, even if the indemnitor would have
no direct right to the benefit of the insurance, if--
(A) such insurance has been paid or reimbursed to the
indemnitor or the indemnitee, or paid on behalf of or for the
benefit of the indemnitee; and
(B) the indemnitor has either, with respect to such
asbestos claim or any similar asbestos claim, paid or
reimbursed to its indemnitee any indemnifiable cost or paid
to any third party on behalf of or for the benefit of the
indemnitee any indemnifiable cost.
(4) Treatment of certain expenditures.--Notwithstanding any
other provision of this Act, where--
(A) an indemnitor entered into a stock purchase agreement
in 1988 that involved the sale of the stock of businesses
that produced friction and other products; and
(B) the stock purchase agreement provided that the
indemnitor indemnified the indemnitee and its affiliates for
losses arising from various matters, including asbestos
claims--
(i) asserted before the date of the agreement; and
(ii) filed after the date of the agreement and prior to the
10-year anniversary of the stock sale,
then the prior asbestos expenditures arising from the
asbestos claims described in clauses (i) and (ii) shall not
be for the account of either the indemnitor or indemnitee.
(h) Minimum Annual Payments.--
(1) In general.--The aggregate annual payments of defendant
participants to the Fund shall be at least $3,000,000,000 for
each calendar year in the first 30 years of the Fund, or
until such shorter time as the condition set forth in
subsection (a)(2) is attained.
(2) Guaranteed payment account.--To the extent payments in
accordance with sections 202 and 203 (as modified by
subsections (b), (d), (f) and (g) of this section) fail in
any year to raise at least $3,000,000,000 net of any
adjustments under subsection (d), the balance needed to meet
this required minimum aggregate annual payment shall be
obtained from the defendant guaranteed payment account
established under subsection (k).
(3) Guaranteed payment surcharge.--To the extent the
procedure set forth in paragraph (2) is insufficient to
satisfy the required minimum aggregate annual payment net of
any adjustments under subsection (d), the Administrator may
assess a guaranteed payment surcharge under subsection (l).
(i) Procedures for Making Payments.--
(1) Initial year: tiers ii-vi.--
(A) In general.--Not later than 120 days after enactment of
this Act, each defendant participant that is included in
Tiers II, III, IV, V, or VI shall file with the
Administrator--
(i) a statement of whether the defendant participant
irrevocably elects to report on a consolidated basis under
subsection (f);
(ii) a good-faith estimate of its prior asbestos
expenditures;
(iii) a statement of its 2002 revenues, determined in
accordance with section 203(a)(2); and
(iv) payment in the amount specified in section 203 for the
lowest subtier of the tier within which the defendant
participant falls, except that if the defendant participant,
or the affiliated group including the defendant participant,
had 2002 revenues exceeding $3,000,000,000, it or its
affiliated group shall pay the amount specified for Subtier 3
of Tiers II, III, or IV or Subtier 2 of Tiers V or VI,
depending on the applicable Tier.
(B) Relief.--
(i) In general.--The Administrator shall establish
procedures to grant a defendant participant relief from its
initial payment obligation if the participant shows that--
(I) the participant is likely to qualify for a financial
hardship adjustment; and
(II) failure to provide interim relief would cause severe
irreparable harm.
(ii) Judicial relief.--The Administrator's refusal to grant
relief under clause (i) is subject to immediate judicial
review under section 303.
(2) Initial year: tier i.--Not later than 60 days after
enactment of this Act, each debtor shall file with the
Administrator--
(A) a statement identifying the bankruptcy case(s)
associated with the debtor;
(B) a statement whether its prior asbestos expenditures
exceed $1,000,000;
(C) a statement whether it has material continuing business
operations and, if not, whether it holds cash or other assets
that have been allocated or earmarked for asbestos
settlements;
(D) in the case of debtors falling within Subtier 1 of Tier
I, a statement of the debtor's 2002 revenues, determined in
accordance with section 203(a)(2), and a payment under
section 203(b)(2)(B);
(E) in the case of debtors falling within Subtier 2 of Tier
I, an assignment of its assets under section 203(b)(3)(B);
and
(F) in the case of debtors falling within Subtier 3 of Tier
I, a payment under section 203(b)(4)(B), and a statement of
how such payment was calculated.
(3) Initial year: tier vii.--Not later than 90 days after
enactment of this Act, each defendant participant in Tier VII
shall file with the Administrator--
(A) a good-faith estimate of all payments of the type
described in section 203(h)(1) (as modified by section
203(h)(6));
(B) a statement of revenues calculated in accordance with
sections 203(a)(2) and 203(h); and
(C) payment in the amount specified in section 203(h).
(4) Notice to participants.--Not later than 240 days after
enactment of this Act, the Administrator shall--
(A) directly notify all reasonably identifiable defendant
participants of the requirement to submit information
necessary to calculate the amount of any required payment to
the Fund; and
(B) publish in the Federal Register a notice--
(i) setting forth the criteria in this Act, and as
prescribed by the Administrator in accordance with this Act,
for paying under this subtitle as a defendant participant and
requiring any person who may be a defendant participant to
submit such information; and
(ii) that includes a list of all defendant participants
notified by the Administrator under subparagraph (A), and
provides for 30 days for the submission by the public of
comments or information regarding the completeness and
accuracy of the list of identified defendant participants.
(5) Response required.--
(A) In general.--Any person who receives notice under
paragraph (4)(A), and any other person meeting the criteria
specified in the notice published under paragraph (4)(B),
shall provide the Administrator with an address to send any
notice from the Administrator in accordance with this Act and
all the information required by the Administrator in
accordance with this subsection no later than the earlier
of--
(i) 30 days after the receipt of direct notice; or
(ii) 30 days after the publication of notice in the Federal
Register.
(B) Certification.--The response submitted under
subparagraph (A) shall be signed by a responsible corporate
officer, general partner, proprietor, or individual of
similar authority, who shall certify under penalty of law the
completeness and accuracy of the information submitted.
(C) Consent to audit authority.--The response submitted
under subparagraph (A) shall include, on behalf of the
defendant participant or affiliated group, a consent to the
Administrator's audit authority under section 221(d).
(6) Notice of initial determination.--
(A) In general.--
(i) Notice to individual.--Not later than 60 days after
receiving a response under paragraph (5), the Administrator
shall send the person a notice of initial determination
identifying the tier and subtier, if any, into which the
person falls and the annual payment obligation, if any, to
the Fund, which determination shall be based on the
information received from the person under this subsection
and any other pertinent information available to the
Administrator and identified to the defendant participant.
(ii) Public notice.--Not later than 7 days after sending
the notification of initial determination to defendant
participants, the Administrator shall publish in the Federal
Register a notice listing the defendant participants that
have been sent such notification, and the initial
determination identifying the tier and subtier assignment and
annual payment obligation of each identified participant.
(B) No response; incomplete response.--If no response in
accordance with paragraph (5) is received from a defendant
participant, or if the response is incomplete, the initial
determination shall be based on the best information
available to the Administrator.
(C) Payments.--Within 30 days of receiving a notice of
initial determination requiring payment, the defendant
participant shall pay the Administrator the amount required
by the notice, after deducting any previous payment made by
the participant under this subsection. If the amount that the
defendant participant is required to pay is less than any
previous payment made by the participant under this
subsection, the Administrator shall credit any excess payment
against the future payment obligations of that defendant
participant. The pendency of a petition for rehearing under
paragraph (10) shall not stay the obligation of the
participant to make the payment specified in the
Administrator's notice.
(7) Exemptions for information required.--
(A) Prior asbestos expenditures.--In lieu of submitting
information related to prior asbestos expenditures as may be
required for purposes of this subtitle, a non-debtor
defendant participant may consent to be assigned to Tier II.
[[Page S3924]]
(B) Revenues.--In lieu of submitting information related to
revenues as may be required for purposes of this subtitle, a
non-debtor defendant participant may consent to be assigned
to Subtier 1 of the defendant participant's applicable tier.
(8) New information.--
(A) Existing participant.--The Administrator shall adopt
procedures for requiring additional payment, or refunding
amounts already paid, based on new information received.
(B) Additional participant.--If the Administrator, at any
time, receives information that an additional person may
qualify as a defendant participant, the Administrator shall
require such person to submit information necessary to
determine whether that person is required to make payments,
and in what amount, under this subtitle and shall make any
determination or take any other act consistent with this Act
based on such information or any other information available
to the Administrator with respect to such person.
(9) Subpoenas.--The Administrator may request the Attorney
General to subpoena persons to compel testimony, records, and
other information relevant to its responsibilities under this
section. The Attorney General may enforce such subpoena in
appropriate proceedings in the United States district court
for the district in which the person to whom the subpoena was
addressed resides, was served, or transacts business.
(10) Rehearing.--A defendant participant has a right to
obtain rehearing of the Administrator's determination under
this subsection of the applicable tier or subtier and of the
Administrator's determination under subsection (d) of a
financial hardship or inequity adjustment, if the request for
rehearing is filed within 30 days after the defendant
participant's receipt of notice from the Administrator of the
determination. A defendant participant may not file an action
under section 303 unless the defendant participant requests a
rehearing under this paragraph. The Administrator shall
publish a notice in the Federal Register of any change in a
defendant participant's tier or subtier assignment or payment
obligation as a result of a rehearing.
(j) Defendant Hardship and Inequity Adjustment Account.--
(1) In general.--To the extent the total payments by
defendant participants in any given year exceed the minimum
aggregate annual payments under subsection (h), excess monies
up to a maximum of $300,000,000 in any such year shall be
placed in a defendant hardship and inequity adjustment
account established within the Fund by the Administrator.
(2) Use of account monies.--Monies from the defendant
hardship and inequity adjustment account shall be preserved
and administered like the remainder of the Fund, but shall be
reserved and may be used only--
(A) to make up for any relief granted to a defendant
participant for severe financial hardship or demonstrated
inequity under subsection (d) or to reimburse any defendant
participant granted such relief after its payment of the
amount otherwise due; and
(B) if the condition set forth in subsection (a)(2) is met,
for any purpose that the Fund may serve under this Act.
(3) Carryover of unused funds.--To the extent the
Administrator does not, in any given year, use all of the
funds allocated to the account under paragraph (1) for
adjustments granted under subsection (d), remaining funds in
the account shall be carried forward for use by the
Administrator for adjustments in subsequent years.
(k) Defendant Guaranteed Payment Account.--
(1) In general.--Subject to subsections (h) and (j), if
there are excess monies paid by defendant participants in any
given year, including any bankruptcy trust credits that may
be due under section 222(e), such monies--
(A) at the discretion of the Administrator, may be used to
provide additional adjustments under subsection (d), up to a
maximum aggregate of $50,000,000 in such year; and
(B) to the extent not used under subparagraph (A), shall be
placed in a defendant guaranteed payment account established
within the Fund by the Administrator.
(2) Use of account monies.--Monies from the defendant
guaranteed payment account shall be preserved and
administered like the remainder of the Fund, but shall be
reserved and may be used only--
(A) to ensure the minimum aggregate annual payment set
forth in subsection (h) net of any adjustments under
subsection (d) is reached each year; and
(B) if the condition set forth in subsection (a)(2) is met,
for any purpose that the Fund may serve under this Act.
(l) Guaranteed Payment Surcharge.--
(1) In general.--To the extent there are insufficient
monies in the defendant guaranteed payment account
established in subsection (k) to attain the minimum aggregate
annual payment net of any adjustments under subsection (d) in
any given year, the Administrator may impose on each
defendant participant a surcharge as necessary to raise the
balance required to attain the minimum aggregate annual
payment net of any adjustments under subsection (d), as
provided in this subsection. Any such surcharge shall be
imposed on a pro rata basis, in accordance with each
defendant participant's relative annual liability under
sections 202 and 203 (as modified by subsections (b), (d),
(f), and (g) of this section).
(2) Certification.--
(A) In general.--Before imposing a guaranteed payment
surcharge under this subsection, the Administrator shall
certify that he or she has used all reasonable efforts to
collect mandatory payments for all defendant participants,
including by using the authority in subsection (i)(9) of this
section and section 223.
(B) Notice and comment.--Before making a final
certification under subparagraph (C), the Administrator shall
publish a notice in the Federal Register of a proposed
certification and provide in such notice for a public comment
period of 30 days.
(C) Final certification.--
(i) In general.--The Administrator shall publish a notice
of the final certification in the Federal Register after
consideration of all comments submitted under subparagraph
(B).
(ii) Written notice.--Not later than 30 days after
publishing any final certification under clause (i), the
Administrator shall provide each defendant participant with
written notice of that defendant participant's payment,
including the amount of any surcharge.
SEC. 205. STEPDOWNS AND FUNDING HOLIDAYS.
(a) Stepdowns.--
(1) In general.--Subject to paragraph (2), the minimum
aggregate annual funding obligation under section 204(h)
shall be reduced by 10 percent of the initial minimum
aggregate funding obligation at the end of the tenth,
fifteenth, twentieth, and twenty-fifth years after the date
of enactment of this Act. The reductions under this paragraph
shall be applied on an equal pro rata basis to the funding
obligations of all defendant participants, except with
respect to defendant participants in Tier 1, Subtiers 2 and
3, and class action trusts.
(2) Limitation.--The Administrator shall suspend, cancel,
reduce, or delay any reduction under paragraph (1) if at any
time the Administrator finds, in accordance with subsection
(c), that such action is necessary and appropriate to ensure
that the assets of the Fund and expected future payments
remain sufficient to satisfy the Fund's anticipated
obligations.
(b) Funding Holidays.--
(1) In general.--If the Administrator determines, at any
time after 10 years following the date of enactment of this
Act, that the assets of the Fund at the time of such
determination and expected future payments, taking into
consideration any reductions under subsection (a), are
sufficient to satisfy the Fund's anticipated obligations
without the need for all, or any portion of, that year's
payment otherwise required under this subtitle, the
Administrator shall reduce or waive all or any part of the
payments required from defendant participants for that year.
(2) Annual review.--The Administrator shall undertake the
review required by this subsection and make the necessary
determination under paragraph (1) every year.
(3) Limitations on funding holidays.--Any reduction or
waiver of the defendant participants' funding obligations
shall--
(A) be made only to the extent the Administrator determines
that the Fund will still be able to satisfy all of its
anticipated obligations; and
(B) be applied on an equal pro rata basis to the funding
obligations of all defendant participants, except with
respect to defendant participants in Subtiers 2 and 3 of Tier
I and class action trusts, for that year.
(4) New information.--If at any time the Administrator
determines that a reduction or waiver under this section may
cause the assets of the Fund and expected future payments to
decrease to a level at which the Fund may not be able to
satisfy all of its anticipated obligations, the Administrator
shall revoke all or any part of such reduction or waiver to
the extent necessary to ensure that the Fund's obligations
are met. Such revocations shall be applied on an equal pro
rata basis to the funding obligations of all defendant
participants, except defendant participants in Subtiers 2 and
3 of Tier I and class action trusts, for that year.
(c) Certification.--
(1) In general.--Before suspending, canceling, reducing, or
delaying any reduction under subsection (a) or granting or
revoking a reduction or waiver under subsection (b), the
Administrator shall certify that the requirements of this
section are satisfied.
(2) Notice and comment.--Before making a final
certification under this subsection, the Administrator shall
publish a notice in the Federal Register of a proposed
certification and a statement of the basis therefor and
provide in such notice for a public comment period of 30
days.
(3) Final certification.--
(A) In general.--The Administrator shall publish a notice
of the final certification in the Federal Register after
consideration of all comments submitted under paragraph (2).
(B) Written notice.--Not later than 30 days after
publishing any final certification under subparagraph (A),
the Administrator shall provide each defendant participant
with written notice of that defendant's funding obligation
for that year.
Subtitle B--Asbestos Insurers Commission
SEC. 210. DEFINITION.
In this subtitle, the term ``captive insurance company''
means a company--
(1) whose entire beneficial interest is owned on the date
of enactment of this Act,
[[Page S3925]]
directly or indirectly, by a defendant participant or by the
ultimate parent or the affiliated group of a defendant
participant;
(2) whose primary commercial business during the period
from calendar years 1940 through 1986 was to provide
insurance to its ultimate parent or affiliated group, or any
portion of the affiliated group or a combination thereof; and
(3) that was incorporated or operating no later than
December 31, 2003.
SEC. 211. ESTABLISHMENT OF ASBESTOS INSURERS COMMISSION.
(a) Establishment.--There is established the Asbestos
Insurers Commission (referred to in this subtitle as the
``Commission'') to carry out the duties described in section
212.
(b) Membership.--
(1) Appointment.--The Commission shall be composed of 5
members who shall be appointed by the President, by and with
the advice and consent of the Senate.
(2) Qualifications.--
(A) Expertise.--Members of the Commission shall have
sufficient expertise to fulfill their responsibilities under
this subtitle.
(B) Conflict of interest.--
(i) In general.--No member of the Commission appointed
under paragraph (1) may be an employee or immediate family
member of an employee of an insurer participant. No member of
the Commission shall be a shareholder of any insurer
participant. No member of the Commission shall be a former
officer or director, or a former employee or former
shareholder of any insurer participant who was such an
employee, shareholder, officer, or director at any time
during the 2-year period ending on the date of the
appointment, unless that is fully disclosed before
consideration in the Senate of the nomination for appointment
to the Commission.
(ii) Definition.--In clause (i), the term ``shareholder''
shall not include a broadly based mutual fund that includes
the stocks of insurer participants as a portion of its
overall holdings.
(C) Federal employment.--A member of the Commission may not
be an officer or employee of the Federal Government, except
by reason of membership on the Commission.
(3) Period of appointment.--Members shall be appointed for
the life of the Commission.
(4) Vacancies.--Any vacancy in the Commission shall be
filled in the same manner as the original appointment.
(5) Chairman.--The President shall select a Chairman from
among the members of the Commission.
(c) Meetings.--
(1) Initial meeting.--Not later than 30 days after the date
on which all members of the Commission have been appointed,
the Commission shall hold its first meeting.
(2) Subsequent meetings.--The Commission shall meet at the
call of the Chairman, as necessary to accomplish the duties
under section 212.
(3) Quorum.--No business may be conducted or hearings held
without the participation of a majority of the members of the
Commission.
SEC. 212. DUTIES OF ASBESTOS INSURERS COMMISSION.
(a) Determination of Insurer Payment Obligations.--
(1) In general.--
(A) Definitions.--For the purposes of this Act, the terms
``insurer'' and ``insurer participant'' shall, unless stated
otherwise, include direct insurers and reinsurers, as well as
any run-off entity established, in whole or in part, to
review and pay asbestos claims.
(B) Procedures for determining insurer payments.--The
Commission shall determine the amount that each insurer
participant shall be required to pay into the Fund under the
procedures described in this section. The Commission shall
make this determination by first promulgating a rule
establishing a methodology for allocation of payments among
insurer participants and then applying such methodology to
determine the individual payment for each insurer
participant. The methodology may include 1 or more allocation
formulas to be applied to all insurer participants or groups
of similarly situated participants. The Commission's rule
shall include a methodology for adjusting payments by insurer
participants to make up, during any applicable payment year,
any amount by which aggregate insurer payments fall below the
level required in paragraph (3)(C). The Commission shall
conduct a thorough study (within the time limitations under
this subparagraph) of the accuracy of the reserve allocation
of each insurer participant, and may request information from
the Securities and Exchange Commission or any State
regulatory agency. Under this procedure, not later than 120
days after the initial meeting of the Commission, the
Commission shall commence a rulemaking proceeding under
section 213(a) to propose and adopt a methodology for
allocating payments among insurer participants. In proposing
an allocation methodology, the Commission may consult with
such actuaries and other experts as it deems appropriate.
After hearings and public comment on the proposed allocation
methodology, the Commission shall as promptly as possible
promulgate a final rule establishing such methodology. After
promulgation of the final rule, the Commission shall
determine the individual payment of each insurer participant
under the procedures set forth in subsection (b).
(C) Scope.--Every insurer, reinsurer, and runoff entity
with asbestos-related obligations in the United States shall
be subject to the Commission's and Administrator's authority
under this Act, including allocation determinations, and
shall be required to fulfill its payment obligation without
regard as to whether it is licensed in the United States.
Every insurer participant not licensed or domiciled in the
United States shall, upon the first payment to the Fund,
submit a written consent to the Commission's and
Administrator's authority under this Act, and to the
jurisdiction of the courts of the United States for purposes
of enforcing this Act, in a form determined by the
Administrator. Any insurer participant refusing to provide a
written consent shall be subject to fines and penalties as
provided in section 223.
(D) Issuers of finite risk policies.--
(i) In general.--The issuer of any policy of reinsurance
purchased by an insurer participant or its affiliate after
1990 that provides for a loss transfer to insure for incurred
asbestos losses and other losses (both known and unknown),
including those policies commonly referred to as ``finite
risk'', ``aggregate stop loss'', ``aggregate excess of
loss'', or ``loss portfolio transfer'' policies, shall be
obligated to make payments required under this Act directly
to the Fund on behalf of the insurer participant who is the
beneficiary of such policy, subject to the underlying
retention and the limits of liability applicable to such
policy.
(ii) Payments.--Payments to the Fund required under this
Act shall be treated as loss payments for asbestos bodily
injury (as if such payments were incurred as liabilities
imposed in the tort system) and shall not be subject to
exclusion under policies described under clause (i) as a
liability with respect to tax or assessment. Within 90 days
after the scheduled date to make an annual payment to the
Fund, the insurer participant shall, at its discretion,
direct the reinsurer issuing such policy to pay all or a
portion of the annual payment directly to the Fund up to the
full applicable limits of liability under the policy. The
reinsurer issuing such policy shall be obligated to make such
payments directly to the Fund and shall be subject to the
enforcement provisions under section 223. The insurer
participant shall remain obligated to make payment to the
Fund of that portion of the annual payment not directed to
the issuer of such reinsurance policy.
(2) Amount of payments.--
(A) Aggregate payment obligation.--The total payment
required of all insurer participants over the life of the
Fund shall be equal to $46,025,000,000.
(B) Accounting standards.--In determining the payment
obligations of participants that are not licensed or
domiciled in the United States or that are runoff entities,
the Commission shall use accounting standards required for
United States licensed direct insurers.
(C) Captive insurance companies.--No payment to the Fund
shall be required from a captive insurance company, unless
and only to the extent a captive insurance company, on the
date of enactment of this Act, has liability, directly or
indirectly, for any asbestos claim of a person or persons
other than and unaffiliated with its ultimate parent or
affiliated group or pool in which the ultimate parent
participates or participated, or unaffiliated with a person
that was its ultimate parent or a member of its affiliated
group or pool at the time the relevant insurance or
reinsurance was issued by the captive insurance company.
(D) Several liability.--Unless otherwise provided under
this Act, each insurer participant's obligation to make
payments to the Fund is several. Unless otherwise provided
under this Act, there is no joint liability, and the future
insolvency by any insurer participant shall not affect the
payment required of any other insurer participant.
(3) Payment of criteria.--
(A) Inclusion in insurer participant category.--
(i) In general.--Insurers that have paid, or been assessed
by a legal judgment or settlement, at least $1,000,000 in
defense and indemnity costs before the date of enactment of
this Act in response to claims for compensation for asbestos
injuries arising from a policy of liability insurance or
contract of liability reinsurance or retrocessional
reinsurance shall be insurer participants in the Fund. Other
insurers shall be exempt from mandatory payments.
(ii) Inapplicability of section 202.--Since insurers may be
subject in certain jurisdictions to direct action suits, and
it is not the intent of this Act to impose upon an insurer,
due to its operation as an insurer, payment obligations to
the Fund in situations where the insurer is the subject of a
direct action, no insurer subject to mandatory payments under
section 212 shall also be liable for payments to the Fund as
a defendant participant under section 202.
(B) Insurer participant allocation methodology.--
(i) In general.--The Commission shall establish the payment
obligations of individual insurer participants to reflect, on
an equitable basis, the relative tort system liability of the
participating insurers in the absence of this Act,
considering and weighting, as appropriate (but exclusive of
workers' compensation), such factors as--
(I) historic premium for lines of insurance associated with
asbestos exposure over relevant periods of time;
(II) recent loss experience for asbestos liability;
(III) amounts reserved for asbestos liability;
[[Page S3926]]
(IV) the likely cost to each insurer participant of its
future liabilities under applicable insurance policies; and
(V) any other factor the Commission may determine is
relevant and appropriate.
(ii) Determination of reserves.--The Commission may
establish procedures and standards for determination of the
asbestos reserves of insurer participants. The reserves of a
United States licensed reinsurer that is wholly owned by, or
under common control of, a United States licensed direct
insurer shall be included as part of the direct insurer's
reserves when the reinsurer's financial results are included
as part of the direct insurer's United States operations, as
reflected in footnote 33 of its filings with the National
Association of Insurance Commissioners or in published
financial statements prepared in accordance with generally
accepted accounting principles.
(C) Payment schedule.--The aggregate annual amount of
payments by insurer participants over the life of the Fund
shall be as follows:
(i) For years 1 and 2, $2,700,000,000 annually.
(ii) For years 3 through 5, $5,075,000,000 annually.
(iii) For years 6 through 27, $1,147,000,000 annually.
(iv) For year 28, $166,000,000.
(D) Certain runoff entities.--
(i) In general.--Whenever the Commission requires payments
by a runoff entity that has assumed asbestos-related
liabilities from a Lloyd's syndicate or names that are
members of such a syndicate, the Commission shall not require
payments from such syndicates and names to the extent that
the runoff entity makes its required payments. In addition,
such syndicates and names shall be required to make payments
to the Fund in the amount of any adjustment granted to the
runoff entity for severe financial hardship or exceptional
circumstances.
(ii) Included runoff entities.--Subject to clause (i), a
runoff entity shall include any direct insurer or reinsurer
whose asbestos liability reserves have been transferred,
directly or indirectly, to the runoff entity and on whose
behalf the runoff entity handles or adjusts and, where
appropriate, pays asbestos claims.
(E) Financial hardship and exceptional circumstance
adjustments.--
(i) In general.--Under the procedures established in
subsection (b), an insurer participant may seek adjustment of
the amount of its payments based on exceptional circumstances
or severe financial hardship.
(ii) Financial adjustments.--An insurer participant may
qualify for an adjustment based on severe financial hardship
by demonstrating that payment of the amounts required by the
Commission's methodology would jeopardize the solvency of
such participant.
(iii) Exceptional circumstance adjustment.--An insurer
participant may qualify for an adjustment based on
exceptional circumstances by demonstrating--
(I) that the amount of its payments under the Commission's
allocation methodology is exceptionally inequitable when
measured against the amount of the likely cost to the
participant of its future liability in the tort system in the
absence of the Fund;
(II) an offset credit as described in subparagraphs (A) and
(C) of subsection (b)(4); or
(III) other exceptional circumstances.
The Commission may determine whether to grant an adjustment
and the size of any such adjustment, but adjustments shall
not reduce the aggregate payment obligations of insurer
participants specified in paragraph (2)(A) and subparagraph
(C) of this paragraph.
(iv) Time period of adjustment.--Except for adjustments for
offset credits, adjustments granted under this subsection
shall have a term not to exceed 3 years. An insurer
participant may renew its adjustment by demonstrating to the
Administrator that it remains justified.
(b) Procedure for Notifying Insurer Participants of
Individual Payment Obligations.--
(1) Notice to participants.--Not later than 30 days after
promulgation of the final rule establishing an allocation
methodology under subsection (a)(1), the Commission shall--
(A) directly notify all reasonably identifiable insurer
participants of the requirement to submit information
necessary to calculate the amount of any required payment to
the Fund under the allocation methodology; and
(B) publish in the Federal Register a notice--
(i) requiring any person who may be an insurer participant
(as determined by criteria outlined in the notice) to submit
such information; and
(ii) that includes a list of all insurer participants
notified by the Commission under subparagraph (A), and
provides for 30 days for the submission of comments or
information regarding the completeness and accuracy of the
list of identified insurer participants.
(2) Response required by individual insurer participants.--
(A) In general.--Any person who receives notice under
paragraph (1)(A), and any other person meeting the criteria
specified in the notice published under paragraph (1)(B),
shall respond by providing the Commission with all the
information requested in the notice under a schedule or by a
date established by the Commission.
(B) Certification.--The response submitted under
subparagraph (A) shall be signed by a responsible corporate
officer, general partner, proprietor, or individual of
similar authority, who shall certify under penalty of law the
completeness and accuracy of the information submitted.
(3) Notice to insurer participants of initial payment
determination.--
(A) In general.--
(i) Notice to insurers.--Not later than 120 days after
receipt of the information required by paragraph (2), the
Commission shall send each insurer participant a notice of
initial determination requiring payments to the Fund, which
shall be based on the information received from the
participant in response to the Commission's request for
information. An insurer participant's payments shall be
payable over the schedule established in subsection
(a)(3)(C), in annual amounts proportionate to the aggregate
annual amount of payments for all insurer participants for
the applicable year.
(ii) Public notice.--Not later than 7 days after sending
the notification of initial determination to insurer
participants, the Commission shall publish in the Federal
Register a notice listing the insurer participants that have
been sent such notification, and the initial determination on
the payment obligation of each identified participant.
(B) No response; incomplete response.--If no response is
received from an insurer participant, or if the response is
incomplete, the initial determination requiring a payment
from the insurer participant shall be based on the best
information available to the Commission.
(4) Commission review, revision, and finalization of
initial payment determinations.--
(A) Comments from insurer participants.--Not later than 30
days after receiving a notice of initial determination from
the Commission, an insurer participant may provide the
Commission with additional information to support adjustments
to the required payments to reflect severe financial hardship
or exceptional circumstances, including the provision of an
offset credit for an insurer participant for the amount of
any asbestos-related payments it made or was legally
obligated to make, including payments released from an
escrow, as the result of a bankruptcy judicially confirmed
after May 22, 2003, but before the date of enactment of this
Act.
(B) Additional participants.--If, before the final
determination of the Commission, the Commission receives
information that an additional person may qualify as an
insurer participant, the Commission shall require such person
to submit information necessary to determine whether payments
from that person should be required, in accordance with the
requirements of this subsection.
(C) Revision procedures.--The Commission shall adopt
procedures for revising initial payments based on information
received under subparagraphs (A) and (B), including a
provision requiring an offset credit for an insurer
participant for the amount of any asbestos-related payments
it made or was legally obligated to make, including payments
released from an escrow, as the result of a bankruptcy
confirmed after May 22, 2003, but before the date of
enactment of this Act.
(5) Examinations and subpoenas.--
(A) Examinations.--The Commission may conduct examinations
of the books and records of insurer participants to determine
the completeness and accuracy of information submitted, or
required to be submitted, to the Commission for purposes of
determining participant payments.
(B) Subpoenas.--The Commission may request the Attorney
General to subpoena persons to compel testimony, records, and
other information relevant to its responsibilities under this
section. The Attorney General may enforce such subpoena in
appropriate proceedings in the United States district court
for the district in which the person to whom the subpoena was
addressed resides, was served, or transacts business.
(6) Escrow payments.--Without regard to an insurer
participant's payment obligation under this section, any
escrow or similar account established before the date of
enactment of this Act by an insurer participant in connection
with an asbestos trust fund that has not been judicially
confirmed by final order by the date of enactment of this Act
shall be the property of the insurer participant and returned
to that insurer participant.
(7) Notice to insurer participants of final payment
determinations.--Not later than 60 days after the notice of
initial determination is sent to the insurer participants,
the Commission shall send each insurer participant a notice
of final determination.
(c) Insurer Participants Voluntary Allocation Agreement.--
(1) In general.--Not later than 30 days after the
Commission proposes its rule establishing an allocation
methodology under subsection (a)(1), direct insurer
participants licensed or domiciled in the United States,
other direct insurer participants, reinsurer participants
licensed or domiciled in the United States, or other
reinsurer participants, may submit an allocation agreement,
approved by all of the participants in the applicable group,
to the Commission.
(2) Allocation agreement.--To the extent the participants
in any such applicable group voluntarily agree upon an
allocation arrangement, any such allocation agreement shall
only govern the allocation of payments
[[Page S3927]]
within that group and shall not determine the aggregate
amount due from that group.
(3) Certification.--The Commission shall determine whether
an allocation agreement submitted under subparagraph (A)
meets the requirements of this subtitle and, if so, shall
certify the agreement as establishing the allocation
methodology governing the individual payment obligations of
the participants who are parties to the agreement. The
authority of the Commission under this subtitle shall, with
respect to participants who are parties to a certified
allocation agreement, terminate on the day after the
Commission certifies such agreement. Under subsection (f),
the Administrator shall assume responsibility, if necessary,
for calculating the individual payment obligations of
participants who are parties to the certified agreement.
(d) Commission Report.--
(1) Recipients.--Until the work of the Commission has been
completed and the Commission terminated, the Commission shall
submit an annual report, containing the information described
under paragraph (2), to--
(A) the Committee on the Judiciary of the Senate;
(B) the Committee on the Judiciary of the House of
Representatives; and
(C) the Administrator.
(2) Contents.--The report under paragraph (1) shall state
the amount that each insurer participant is required to pay
to the Fund, including the payment schedule for such
payments.
(e) Interim Payments.--
(1) Authority of administrator.--During the period between
the date of enactment of this Act and the date when the
Commission issues its final determinations of payments, the
Administrator shall have the authority to require insurer
participants to make interim payments to the Fund to assure
adequate funding by insurer participants during such period.
(2) Amount of interim payments.--During any applicable
year, the Administrator may require insurer participants to
make aggregate interim payments not to exceed the annual
aggregate amount specified in subsection (a)(3)(C).
(3) Allocation of payments.--Interim payments shall be
allocated among individual insurer participants on an
equitable basis as determined by the Administrator. All
payments required under this subparagraph shall be credited
against the participant's ultimate payment obligation to the
Fund established by the Commission. If an interim payment
exceeds the ultimate payment, the Fund shall pay interest on
the amount of the overpayment at a rate determined by the
Administrator. If the ultimate payment exceeds the interim
payment, the participant shall pay interest on the amount of
the underpayment at the same rate. Any participant may seek
an exemption from or reduction in any payment required under
this subsection under the financial hardship and exceptional
circumstance standards established in subsection (a)(3)(D).
(4) Appeal of interim payment decisions.--A decision by the
Administrator to establish an interim payment obligation
shall be considered final agency action and reviewable under
section 303, except that the reviewing court may not stay an
interim payment during the pendency of the appeal.
(f) Transfer of Authority From the Commission to the
Administrator.--
(1) In general.--Upon termination of the Commission under
section 215, the Administrator shall assume all the
responsibilities and authority of the Commission, except that
the Administrator shall not have the power to modify the
allocation methodology established by the Commission or by
certified agreement or to promulgate a rule establishing any
such methodology.
(2) Financial hardship and exceptional circumstance
adjustments.--Upon termination of the Commission under
section 215, the Administrator shall have the authority, upon
application by any insurer participant, to make adjustments
to annual payments upon the same grounds as provided in
subsection (a)(3)(D). Adjustments granted under this
subsection shall have a term not to exceed 3 years. An
insurer participant may renew its adjustment by demonstrating
that it remains justified. Upon the grant of any adjustment,
the Administrator shall increase the payments required of all
other insurer participants so that there is no reduction in
the aggregate payment required of all insurer participants
for the applicable years. The increase in an insurer
participant's required payment shall be in proportion to such
participant's share of the aggregate payment obligation of
all insurer participants.
(3) Financial security requirements.--Whenever an insurer
participant's A.M. Best's claims payment rating or Standard
and Poor's financial strength rating falls below A-, and
until such time as either the insurer participant's A.M.
Best's Rating or Standard and Poor's rating is equal to or
greater than A-, the Administrator shall have the authority
to require that the participating insurer either--
(A) pay the present value of its remaining Fund payments at
a discount rate determined by the Administrator; or
(B) provide an evergreen letter of credit or financial
guarantee for future payments issued by an institution with
an A.M. Best's claims payment rating or Standard & Poor's
financial strength rating of at least A+.
(g) Judicial Review.--The Commission's rule establishing an
allocation methodology, its final determinations of payment
obligations and other final action shall be judicially
reviewable as provided in title III.
SEC. 213. POWERS OF ASBESTOS INSURERS COMMISSION.
(a) Rulemaking.--The Commission shall promulgate such rules
and regulations as necessary to implement its authority under
this Act, including regulations governing an allocation
methodology. Such rules and regulations shall be promulgated
after providing interested parties with the opportunity for
notice and comment.
(b) Hearings.--The Commission may hold such hearings, sit
and act at such times and places, take such testimony, and
receive such evidence as the Commission considers advisable
to carry out this Act. The Commission shall also hold a
hearing on any proposed regulation establishing an allocation
methodology, before the Commission's adoption of a final
regulation.
(c) Information From Federal and State Agencies.--The
Commission may secure directly from any Federal or State
department or agency such information as the Commission
considers necessary to carry out this Act. Upon request of
the Chairman of the Commission, the head of such department
or agency shall furnish such information to the Commission.
(d) Postal Services.--The Commission may use the United
States mails in the same manner and under the same conditions
as other departments and agencies of the Federal Government.
(e) Gifts.--The Commission may not accept, use, or dispose
of gifts or donations of services or property.
(f) Expert Advice.--In carrying out its responsibilities,
the Commission may enter into such contracts and agreements
as the Commission determines necessary to obtain expert
advice and analysis.
SEC. 214. PERSONNEL MATTERS.
(a) Compensation of Members.--Each member of the Commission
shall be compensated at a rate equal to the daily equivalent
of the annual rate of basic pay prescribed for level IV of
the Executive Schedule under section 5315 of title 5, United
States Code, for each day (including travel time) during
which such member is engaged in the performance of the duties
of the Commission.
(b) Travel Expenses.--The members of the Commission shall
be allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of
business in the performance of services for the Commission.
(c) Staff.--
(1) In general.--The Chairman of the Commission may,
without regard to the civil service laws and regulations,
appoint and terminate an executive director and such other
additional personnel as may be necessary to enable the
Commission to perform its duties. The employment of an
executive director shall be subject to confirmation by the
Commission.
(2) Compensation.--The Chairman of the Commission may fix
the compensation of the executive director and other
personnel without regard to chapter 51 and subchapter III of
chapter 53 of title 5, United States Code, relating to
classification of positions and General Schedule pay rates,
except that the rate of pay for the executive director and
other personnel may not exceed the rate payable for level V
of the Executive Schedule under section 5316 of such title.
(d) Detail of Government Employees.--Any Federal Government
employee may be detailed to the Commission without
reimbursement, and such detail shall be without interruption
or loss of civil service status or privilege.
(e) Procurement of Temporary and Intermittent Services.--
The Chairman of the Commission may procure temporary and
intermittent services under section 3109(b) of title 5,
United States Code, at rates for individuals which do not
exceed the daily equivalent of the annual rate of basic pay
prescribed for level V of the Executive Schedule under
section 5316 of such title.
SEC. 215. TERMINATION OF ASBESTOS INSURERS COMMISSION.
The Commission shall terminate 90 days after the last date
on which the Commission makes a final determination of
contribution under section 212(b) or 90 days after the last
appeal of any final action by the Commission is exhausted,
whichever occurs later.
SEC. 216. EXPENSES AND COSTS OF COMMISSION.
All expenses of the Commission shall be paid from the Fund.
Subtitle C--Asbestos Injury Claims Resolution Fund
SEC. 221. ESTABLISHMENT OF ASBESTOS INJURY CLAIMS RESOLUTION
FUND.
(a) Establishment.--There is established in the Office of
Asbestos Disease Compensation the Asbestos Injury Claims
Resolution Fund, which shall be available to pay--
(1) claims for awards for an eligible disease or condition
determined under title I;
(2) claims for reimbursement for medical monitoring
determined under title I;
(3) principal and interest on borrowings under subsection
(b);
(4) the remaining obligations to the asbestos trust of a
debtor and the class action trust under section 405(f)(8);
and
(5) administrative expenses to carry out the provisions of
this Act.
(b) Borrowing Authority.--
[[Page S3928]]
(1) In general.--The Administrator is authorized to borrow
from time to time amounts as set forth in this subsection,
for purposes of enhancing liquidity available to the Fund for
carrying out the obligations of the Fund under this Act. The
Administrator may authorize borrowing in such form, over such
term, with such necessary disclosure to its lenders as will
most efficiently enhance the Fund's liquidity.
(2) Federal financing bank.--In addition to the general
authority in paragraph (1), the Administrator may borrow from
the Federal Financing Bank in accordance with section 6 of
the Federal Financing Bank Act of 1973 (12 U.S.C. 2285), as
needed for performance of the Administrator's duties under
this Act for the first 5 years.
(3) Borrowing capacity.--The maximum amount that may be
borrowed under this subsection at any given time is the
amount that, taking into account all payment obligations
related to all previous amounts borrowed in accordance with
this subsection and all committed obligations of the Fund at
the time of borrowing, can be repaid in full (with interest)
in a timely fashion from--
(A) the available assets of the Fund as of the time of
borrowing; and
(B) all amounts expected to be paid by participants during
the subsequent 10 years.
(4) Repayment obligations.--Repayment of monies borrowed by
the Administrator under this subsection is limited solely to
amounts available in the Asbestos Injury Claims Resolution
Fund established under this section.
(c) Lockbox for Severe Asbestos-Related Injury Claimants.--
(1) In general.--Within the Fund, the Administrator shall
establish the following accounts:
(A) A Mesothelioma Account, which shall be used solely to
make payments to claimants eligible for an award under the
criteria of Level IX.
(B) A Lung Cancer Account, which shall be used solely to
make payments to claimants eligible for an award under the
criteria of Level VIII.
(C) A Severe Asbestosis Account, which shall be used solely
to make payments to claimants eligible for an award under the
criteria of Level V.
(D) A Moderate Asbestosis Account, which shall be used
solely to make payments to claimants eligible for an award
under the criteria of Level IV.
(2) Allocation.--The Administrator shall allocate to each
of the 4 accounts established under paragraph (1) a portion
of payments made to the Fund adequate to compensate all
anticipated claimants for each account. Within 60 days after
the date of enactment of this Act, and periodically during
the life of the Fund, the Administrator shall determine an
appropriate amount to allocate to each account after
consulting appropriate epidemiological and statistical
studies.
(d) Audit Authority.--
(1) In general.--For the purpose of ascertaining the
correctness of any information provided or payments made to
the Fund, or determining whether a person who has not made a
payment to the Fund was required to do so, or determining the
liability of any person for a payment to the Fund, or
collecting any such liability, or inquiring into any offense
connected with the administration or enforcement of this
title, the Administrator is authorized--
(A) to examine any books, papers, records, or other data
which may be relevant or material to such inquiry;
(B) to summon the person liable for a payment under this
title, or officer or employee of such person, or any person
having possession, custody, or care of books of account
containing entries relating to the business of the person
liable or any other person the Administrator may deem proper,
to appear before the Administrator at a time and place named
in the summons and to produce such books, papers, records, or
other data, and to give such testimony, under oath, as may be
relevant or material to such inquiry; and
(C) to take such testimony of the person concerned, under
oath, as may be relevant or material to such inquiry.
(2) False, fraudulent, or fictitious statements or
practices.--If the Administrator determines that materially
false, fraudulent, or fictitious statements or practices have
been submitted or engaged in by persons submitting
information to the Administrator or to the Asbestos Insurers
Commission or any other person who provides evidence in
support of such submissions for purposes of determining
payment obligations under this Act, the Administrator may
impose a civil penalty not to exceed $10,000 on any person
found to have submitted or engaged in a materially false,
fraudulent, or fictitious statement or practice under this
Act. The Administrator shall promulgate appropriate
regulations to implement this paragraph.
(e) Identity of Certain Defendant Participants;
Transparency.--
(1) Submission of information.--Not later than 60 days
after the date of enactment of this Act, any person who,
acting in good faith, has knowledge that such person or such
person's affiliated group has prior asbestos expenditures of
$1,000,000 or greater, shall submit to the Administrator--
(A) either the name of such person, or such person's
ultimate parent; and
(B) the likely tier to which such person or affiliated
group may be assigned under this Act.
(2) Publication.--Not later than 20 days after the end of
the 60-day period referred to in paragraph (1), the
Administrator or Interim Administrator, if the Administrator
is not yet appointed, shall publish in the Federal Register a
list of submissions required by this subsection, including
the name of such persons or ultimate parents and the likely
tier to which such persons or affiliated groups may be
assigned. After publication of such list, any person who,
acting in good faith, has knowledge that any other person has
prior asbestos expenditures of $1,000,000 or greater may
submit to the Administrator or Interim Administrator
information on the identity of that person and the person's
prior asbestos expenditures.
(f) No Private Right of Action.--Except as provided in
sections 203(b)(2)(D)(ii) and 204(f)(3), there shall be no
private right of action under any Federal or State law
against any participant based on a claim of compliance or
noncompliance with this Act or the involvement of any
participant in the enactment of this Act.
SEC. 222. MANAGEMENT OF THE FUND.
(a) In General.--Amounts in the Fund shall be held for the
exclusive purpose of providing benefits to asbestos claimants
and their beneficiaries, including those provided in
subsection (c), and to otherwise defray the reasonable
expenses of administering the Fund.
(b) Investments.--
(1) In general.--Amounts in the Fund shall be administered
and invested with the care, skill, prudence, and diligence,
under the circumstances prevailing at the time of such
investment, that a prudent person acting in a like capacity
and manner would use.
(2) Strategy.--The Administrator shall invest amounts in
the Fund in a manner that enables the Fund to make current
and future distributions to or for the benefit of asbestos
claimants. In pursuing an investment strategy under this
subparagraph, the Administrator shall consider, to the extent
relevant to an investment decision or action--
(A) the size of the Fund;
(B) the nature and estimated duration of the Fund;
(C) the liquidity and distribution requirements of the
Fund;
(D) general economic conditions at the time of the
investment;
(E) the possible effect of inflation or deflation on Fund
assets;
(F) the role that each investment or course of action plays
with respect to the overall assets of the Fund;
(G) the expected amount to be earned (including both income
and appreciation of capital) through investment of amounts in
the Fund; and
(H) the needs of asbestos claimants for current and future
distributions authorized under this Act.
(c) Mesothelioma Research and Treatment Centers.--
(1) In general.--The Administrator shall provide $1,000,000
from the Fund for each of fiscal years 2005 through 2009 for
each of up to 10 mesothelioma disease research and treatment
centers.
(2) Requirements.--The Centers shall--
(A) be chosen by the Director of the National Institutes of
Health;
(B) be chosen through competitive peer review;
(C) be geographically distributed throughout the United
States with special consideration given to areas of high
incidence of mesothelioma disease;
(D) be closely associated with Department of Veterans
Affairs medical centers to provide research benefits and care
to veterans who have suffered excessively from mesothelioma;
(E) be engaged in research to provide mechanisms for
detection and prevention of mesothelioma, particularly in the
areas of pain management and cures;
(F) be engaged in public education about mesothelioma and
prevention, screening, and treatment;
(G) be participants in the National Mesothelioma Registry;
and
(H) be coordinated in their research and treatment efforts
with other Centers and institutions involved in exemplary
mesothelioma research.
(d) Bankruptcy Trust Guarantee.--
(1) In general.--Notwithstanding any other provision of
this Act, the Administrator shall have the authority to
impose a pro rata surcharge on all participants under this
subsection to ensure the liquidity of the Fund, if--
(A) the declared assets from 1 or more bankruptcy trusts
established under a plan of reorganization confirmed and
substantially consummated on or before July 31, 2004, are not
available to the Fund because a final judgment that has been
entered by a court and is no longer subject to any appeal or
review has enjoined the transfer of assets required under
section 524(j)(2) of title 11, United States Code (as amended
by section 402(f) of this Act); and
(B) borrowing is insufficient to assure the Fund's ability
to meet its obligations under this Act such that the required
borrowed amount is likely to increase the risk of termination
of this Act under section 405 based on reasonable claims
projections.
(2) Allocation.--Any surcharge imposed under this
subsection shall be imposed over a period of 5 years on a pro
rata basis upon all participants, in accordance with each
participant's relative annual liability under this subtitle
and subtitle B for those 5 years.
(3) Certification.--
[[Page S3929]]
(A) In general.--Before imposing a surcharge under this
subsection, the Administrator shall publish a notice in the
Federal Register and provide in such notice for a public
comment period of 30 days.
(B) Contents of notice.--The notice required under
subparagraph (A) shall include--
(i) information explaining the circumstances that make a
surcharge necessary and a certification that the requirements
under paragraph (1) are met;
(ii) the amount of the declared assets from any trust
established under a plan of reorganization confirmed and
substantially consummated on or before July 31, 2004, that
was not made, or is no longer, available to the Fund;
(iii) the total aggregate amount of the necessary
surcharge; and
(iv) the surcharge amount for each tier and subtier of
defendant participants and for each insurer participant.
(C) Final notice.--The Administrator shall publish a final
notice in the Federal Register and provide each participant
with written notice of that participant's schedule of
payments under this subsection. In no event shall any
required surcharge under this subsection be due before 60
days after the Administrator publishes the final notice in
the Federal Register and provides each participant with
written notice of its schedule of payments.
(4) Maximum amount.--In no event shall the total aggregate
surcharge imposed by the Administrator exceed the lesser of--
(A) the total aggregate amount of the declared assets of
the trusts established under a plan of reorganization
confirmed and substantially consummated prior to July 31,
2004, that are no longer available to the Fund; or
(B) $4,000,000,000.
(5) Declared assets.--
(A) In general.--In this subsection, the term ``declared
assets'' means--
(i) the amount of assets transferred by any trust
established under a plan of reorganization confirmed and
substantially consummated on or before July 31, 2004, to the
Fund that is required to be returned to that trust under the
final judgment described in paragraph (1)(A); or
(ii) if no assets were transferred by the trust to the
Fund, the amount of assets the Administrator determines would
have been available for transfer to the Fund from that trust
under section 402(f).
(B) Determination.--In making a determination under
subparagraph (A)(ii), the Administrator may rely on any
information reasonably available, and may request, and use
subpoena authority of the Administrator if necessary to
obtain, relevant information from any such trust or its
trustees.
(e) Bankruptcy Trust Credits.--
(1) In general.--Notwithstanding any other provision of
this Act, but subject to paragraph (2) of this subsection,
the Administrator shall provide a credit toward the aggregate
payment obligations under sections 202(a)(2) and 212(a)(2)(A)
for assets received by the Fund from any bankruptcy trust
established under a plan of reorganization confirmed and
substantially consummated after July 31, 2004.
(2) Allocation of credits.--The Administrator shall
allocate, for each such bankruptcy trust, the credits for
such assets between the defendant and insurer aggregate
payment obligations as follows:
(A) Defendant participants.--The aggregate amount that all
persons other than insurers contributing to the bankruptcy
trust would have been required to pay as Tier I defendants
under section 203(b) if the plan of reorganization under
which the bankruptcy trust was established had not been
confirmed and substantially consummated and the proceeding
under chapter 11 of title 11, United States Code, that
resulted in the establishment of the bankruptcy trust had
remained pending as of the date of enactment of this Act.
(B) Insurer participants.--The aggregate amount of all
credits to which insurers are entitled to under section
202(c)(4)(A) of the Act.
SEC. 223. ENFORCEMENT OF PAYMENT OBLIGATIONS.
(a) Default.--If any participant fails to make any payment
in the amount of and according to the schedule under this Act
or as prescribed by the Administrator, after demand and a 30-
day opportunity to cure the default, there shall be a lien in
favor of the United States for the amount of the delinquent
payment (including interest) upon all property and rights to
property, whether real or personal, belonging to such
participant.
(b) Bankruptcy.--In the case of a bankruptcy or insolvency
proceeding, the lien imposed under subsection (a) shall be
treated in the same manner as a lien for taxes due and owing
to the United States for purposes of the provisions of title
11, United States Code, or section 3713(a) of title 31,
United States Code. The United States Bankruptcy Court shall
have jurisdiction over any issue or controversy regarding
lien priority and lien perfection arising in a bankruptcy
case due to a lien imposed under subsection (a).
(c) Civil Action.--
(1) In general.--In any case in which there has been a
refusal or failure to pay any liability imposed under this
Act, the Administrator may bring a civil action in the United
States District Court for the District of Columbia, or any
other appropriate lawsuit or proceeding outside of the United
States--
(A) to enforce the liability and any lien of the United
States imposed under this section;
(B) to subject any property of the participant, including
any property in which the participant has any right, title,
or interest to the payment of such liability; or
(C) for temporary, preliminary, or permanent relief.
(2) Additional penalties.--In any action under paragraph
(1) in which the refusal or failure to pay was willful, the
Administrator may seek recovery--
(A) of punitive damages;
(B) of the costs of any civil action under this subsection,
including reasonable fees incurred for collection, expert
witnesses, and attorney's fees; and
(C) in addition to any other penalty, of a fine equal to
the total amount of the liability that has not been
collected.
(d) Enforcement Authority as to Insurer Participants.--
(1) In general.--In addition to or in lieu of the
enforcement remedies described in subsection (c), the
Administrator may seek to recover amounts in satisfaction of
a payment not timely paid by an insurer participant under the
procedures under this subsection.
(2) Subrogation.--To the extent required to establish
personal jurisdiction over nonpaying insurer participants,
the Administrator shall be deemed to be subrogated to the
contractual rights of participants to seek recovery from
nonpaying insuring participants that are domiciled outside
the United States under the policies of liability insurance
or contracts of liability reinsurance or retrocessional
reinsurance applicable to asbestos claims, and the
Administrator may bring an action or an arbitration against
the nonpaying insurer participants under the provisions of
such policies and contracts, provided that--
(A) any amounts collected under this subsection shall not
increase the amount of deemed erosion allocated to any policy
or contract under section 404, or otherwise reduce coverage
available to a participant; and
(B) subrogation under this subsection shall have no effect
on the validity of the insurance policies or reinsurance, and
any contrary State law is expressly preempted.
(3) Recoverability of contribution.--For purposes of this
subsection--
(A) all contributions to the Fund required of a participant
shall be deemed to be sums legally required to be paid for
bodily injury resulting from exposure to asbestos;
(B) all contributions to the Fund required of any
participant shall be deemed to be a single loss arising from
a single occurrence under each contract to which the
Administrator is subrogated; and
(C) with respect to reinsurance contracts, all
contributions to the Fund required of a participant shall be
deemed to be payments to a single claimant for a single loss.
(4) No credit or offset.--In any action brought under this
subsection, the nonpaying insurer or reinsurer shall be
entitled to no credit or offset for amounts collectible or
potentially collectible from any participant nor shall such
defaulting participant have any right to collect any sums
payable under this section from any participant.
(5) Cooperation.--Insureds and cedents shall cooperate with
the Administrator's reasonable requests for assistance in any
such proceeding. The positions taken or statements made by
the Administrator in any such proceeding shall not be binding
on or attributed to the insureds or cedents in any other
proceeding. The outcome of such a proceeding shall not have a
preclusive effect on the insureds or cedents in any other
proceeding and shall not be admissible against any subrogee
under this section. The Administrator shall have the
authority to settle or compromise any claims against a
nonpaying insurer participant under this subsection.
(e) Bar on United States Business.--If any direct insurer
or reinsurer refuses to furnish any information requested by
or to pay any contribution required by this Act, then, in
addition to any other penalties imposed by this Act, the
Administrator may issue an order barring such entity and its
affiliates from insuring risks located within the United
States or otherwise doing business within the United States.
Insurer participants or their affiliates seeking to obtain a
license from any State to write any type of insurance shall
be barred from obtaining any such license until payment of
all contributions required as of the date of license
application.
(f) Credit for Reinsurance.--If the Administrator
determines that an insurer participant that is a reinsurer is
in default in paying any required contribution or otherwise
not in compliance with this Act, the Administrator may issue
an order barring any direct insurer participant from
receiving credit for reinsurance purchased from the
defaulting reinsurer. Any State law governing credit for
reinsurance to the contrary is preempted.
(g) Defense Limitation.--In any proceeding under this
section, the participant shall be barred from bringing any
challenge to any determination of the Administrator or the
Asbestos Insurers Commission regarding its liability under
this Act, or to the constitutionality of this Act or any
provision thereof, if such challenge could have been made
during the review provided under section 204(i)(10), or in a
judicial review proceeding under section 303.
(h) Deposit of Funds.--
(1) In general.--Any funds collected under subsection
(c)(2) (A) or (C) shall be--
[[Page S3930]]
(A) deposited in the Fund; and
(B) used only to pay--
(i) claims for awards for an eligible disease or condition
determined under title I; or
(ii) claims for reimbursement for medical monitoring
determined under title I.
(2) No effect on other liabilities.--The imposition of a
fine under subsection (c)(2)(C) shall have no effect on--
(A) the assessment of contributions under subtitles A and
B; or
(B) any other provision of this Act.
(i) Property of the Estate.--Section 541(b) of title 11,
United States Code, is amended--
(1) in paragraph (4)(B)(ii), by striking ``or'' at the end;
(2) in paragraph (5), by striking ``prohibition.'' and
inserting ``prohibition; or''; and
(3) by inserting after paragraph (5) and before the last
undesignated sentence the following:
``(6) the value of any pending claim against or the amount
of an award granted from the Asbestos Injury Claims
Resolution Fund established under the Fairness in Asbestos
Injury Resolution Act of 2005.''.
SEC. 224. INTEREST ON UNDERPAYMENT OR NONPAYMENT.
If any amount of payment obligation under this title is not
paid on or before the last date prescribed for payment, the
liable party shall pay interest on such amount at the Federal
short-term rate determined under section 6621(b) of the
Internal Revenue Code of 1986, plus 5 percentage points, for
the period from such last date to the date paid.
SEC. 225. EDUCATION, CONSULTATION, SCREENING, AND MONITORING.
(a) In General.--The Administrator shall establish a
program for the education, consultation, medical screening,
and medical monitoring of persons with exposure to asbestos.
The program shall be funded by the Fund.
(b) Outreach and Education.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Administrator shall establish an
outreach and education program, including a website designed
to provide information about asbestos-related medical
conditions to members of populations at risk of developing
such conditions.
(2) Information.--The information provided under paragraph
(1) shall include information about--
(A) the signs and symptoms of asbestos-related medical
conditions;
(B) the value of appropriate medical screening programs;
and
(C) actions that the individuals can take to reduce their
future health risks related to asbestos exposure.
(3) Contracts.--Preference in any contract under this
subsection shall be given to providers that are existing
nonprofit organizations with a history and experience of
providing occupational health outreach and educational
programs for individuals exposed to asbestos.
(c) Medical Screening Program.--
(1) Establishment of program.--Not sooner than 18 months or
later than 24 months after the Administrator certifies that
the Fund is fully operational and processing claims at a
reasonable rate, the Administrator shall adopt guidelines
establishing a medical screening program for individuals at
high risk of asbestos-related disease resulting from an
asbestos-related disease. In promulgating such guidelines,
the Administrator shall consider the views of the Advisory
Committee on Asbestos Disease Compensation, the Medical
Advisory Committee, and the public.
(2) Eligibility criteria.--
(A) In general.--The guidelines promulgated under this
subsection shall establish criteria for participation in the
medical screening program.
(B) Considerations.--In promulgating eligibility criteria
the Administrator shall take into consideration all factors
relevant to the individual's effective cumulative exposure to
asbestos, including--
(i) any industry in which the individual worked;
(ii) the individual's occupation and work setting;
(iii) the historical period in which exposure took place;
(iv) the duration of the exposure;
(v) the intensity and duration of non-occupational
exposures; and
(vi) any other factors that the Administrator determines
relevant.
(3) Protocols.--The guidelines developed under this
subsection shall establish protocols for medical screening,
which shall include--
(A) administration of a health evaluation and work history
questionnaire;
(B) an evaluation of smoking history;
(C) a physical examination by a qualified physician with a
doctor-patient relationship with the individual;
(D) a chest x-ray read by a certified B-reader as defined
under section 121(a)(4); and
(E) pulmonary function testing as defined under section
121(a)(13).
(4) Frequency.--The Administrator shall establish the
frequency with which medical screening shall be provided or
be made available to eligible individuals, which shall be not
less than every 5 years.
(5) Provision of services.--The Administrator shall provide
medical screening to eligible individuals directly or by
contract with another agency of the Federal Government, with
State or local governments, or with private providers of
medical services. The Administrator shall establish strict
qualifications for the providers of such services, and shall
periodically audit the providers of services under this
subsection, to ensure their integrity, high degree of
competence, and compliance with all applicable technical and
professional standards. No provider of medical screening
services may have earned more than 15 percent of their income
from the provision of services of any kind in connection with
asbestos litigation in any of the 3 years preceding the date
of enactment of this Act. All contracts with providers of
medical screening services under this subsection shall
contain provisions allowing the Administrator to terminate
such contracts for cause if the Administrator determines that
the service provider fails to meet the qualifications
established under this subsection.
(6) Limitation of compensation for services.--The
compensation required to be paid to a provider of medical
screening services for such services furnished to an eligible
individual shall be limited to the amount that would be
reimbursed at the time of the furnishing of such services
under title XVIII of the Social Security Act (42 U.S.C. 1395
et seq.) for similar services if--
(A) the individual were entitled to benefits under part A
of such title and enrolled under part B of such title; and
(B) such services are covered under title XVIII of the
Social Security Act (42 U.S.C. 1395 et seq.).
(7) Funding; periodic review.--
(A) Funding.--The Administrator shall make such funds
available from the Fund to implement this section, but not
more than $30,000,000 each year in each of the 5 years
following the effective date of the medical screening
program. Notwithstanding the preceding sentence, the
Administrator shall suspend the operation of the program or
reduce its funding level if necessary to preserve the
solvency of the Fund and to prevent the sunset of the overall
program under section 405(f).
(B) Review.--The Administrator's first annual report under
section 405 following the close of the 4th year of operation
of the medical screening program shall include an analysis of
the usage of the program, its cost and effectiveness, its
medical value, and the need to continue that program for an
additional 5-year period. The Administrator shall also
recommend to Congress any improvements that may be required
to make the program more effective, efficient, and
economical, and shall recommend a funding level for the
program for the 5 years following the period of initial
funding referred to under subparagraph (A).
(d) Limitation.--In no event shall the total amount
allocated to the medical screening program established under
this subsection over the lifetime of the Fund exceed
$600,000,000.
(e) Medical Monitoring Program and Protocols.--
(1) In general.--The Administrator shall establish
procedures for a medical monitoring program for persons
exposed to asbestos who have been approved for level I
compensation under section 131.
(2) Procedures.--The procedures for medical monitoring
shall include--
(A) specific medical tests to be provided to eligible
individuals and the periodicity of those tests, which shall
initially be provided every 3 years and include--
(i) administration of a health evaluation and work history
questionnaire;
(ii) physical examinations, including blood pressure
measurement, chest examination, and examination for clubbing;
(iii) AP and lateral chest x-ray; and
(iv) spirometry performed according to ATS standards;
(B) qualifications of medical providers who are to provide
the tests required under subparagraph (A); and
(C) administrative provisions for reimbursement from the
Fund of the costs of monitoring eligible claimants, including
the costs associated with the visits of the claimants to
physicians in connection with medical monitoring, and with
the costs of performing and analyzing the tests.
(3) Preferences.--
(A) In general.--In administering the monitoring program
under this subsection, preference shall be given to medical
and program providers with--
(i) a demonstrated capacity for identifying, contacting,
and evaluating populations of workers or others previously
exposed to asbestos; and
(ii) experience in establishing networks of medical
providers to conduct medical screening and medical monitoring
examinations.
(B) Provision of lists.--Claimants that are eligible to
participate in the medical monitoring program shall be
provided with a list of approved providers in their
geographic area at the time such claimants become eligible to
receive medical monitoring.
(f) Contracts.--The Administrator may enter into contracts
with qualified program providers that would permit the
program providers to undertake large-scale medical screening
and medical monitoring programs by means of subcontracts with
a network of medical providers, or other health providers.
(g) Review.--Not later than 5 years after the date of
enactment of this Act, and every 5 years thereafter, the
Administrator shall review, and if necessary update, the
protocols and procedures established under this section.
[[Page S3931]]
TITLE III--JUDICIAL REVIEW
SEC. 301. JUDICIAL REVIEW OF RULES AND REGULATIONS.
(a) Exclusive Jurisdiction.--The United States Court of
Appeals for the District of Columbia Circuit shall have
exclusive jurisdiction over any action to review rules or
regulations promulgated by the Administrator or the Asbestos
Insurers Commission under this Act.
(b) Period for Filing Petition.--A petition for review
under this section shall be filed not later than 60 days
after the date notice of such promulgation appears in the
Federal Register.
(c) Expedited Procedures.--The United States Court of
Appeals for the District of Columbia shall provide for
expedited procedures for reviews under this section.
SEC. 302. JUDICIAL REVIEW OF AWARD DECISIONS.
(a) In General.--Any claimant adversely affected or
aggrieved by a final decision of the Administrator awarding
or denying compensation under title I may petition for
judicial review of such decision. Any petition for review
under this section shall be filed within 90 days of the
issuance of a final decision of the Administrator.
(b) Exclusive Jurisdiction.--A petition for review may only
be filed in the United States Court of Appeals for the
circuit in which the claimant resides at the time of the
issuance of the final order.
(c) Standard of Review.--The court shall uphold the
decision of the Administrator unless the court determines,
upon review of the record as a whole, that the decision is
not supported by substantial evidence, is contrary to law, or
is not in accordance with procedure required by law.
(d) Expedited Procedures.--The United States Court of
Appeals shall provide for expedited procedures for reviews
under this section.
SEC. 303. JUDICIAL REVIEW OF PARTICIPANTS' ASSESSMENTS.
(a) Exclusive Jurisdiction.--The United States Court of
Appeals for the District of Columbia Circuit shall have
exclusive jurisdiction over any action to review a final
determination by the Administrator or the Asbestos Insurers
Commission regarding the liability of any person to make a
payment to the Fund, including a notice of applicable subtier
assignment under section 204(i), a notice of financial
hardship or inequity determination under section 204(d), and
a notice of insurer participant obligation under section
212(b).
(b) Period for Filing Action.--A petition for review under
subsection (a) shall be filed not later than 60 days after a
final determination by the Administrator or the Commission
giving rise to the action. Any defendant participant who
receives a notice of its applicable subtier under section
204(i) or a notice of financial hardship or inequity
determination under section 204(d) shall commence any action
within 30 days after a decision on rehearing under section
204(i)(10), and any insurer participant who receives a notice
of a payment obligation under section 212(b) shall commence
any action within 30 days after receiving such notice. The
court shall give such action expedited consideration.
SEC. 304. OTHER JUDICIAL CHALLENGES.
(a) Exclusive Jurisdiction.--The United States District
Court for the District of Columbia shall have exclusive
jurisdiction over any action for declaratory or injunctive
relief challenging any provision of this Act. An action under
this section shall be filed not later than 60 days after the
date of enactment of this Act or 60 days after the final
action by the Administrator or the Commission giving rise to
the action, whichever is later.
(b) Direct Appeal.--A final decision in the action shall be
reviewable on appeal directly to the Supreme Court of the
United States. Such appeal shall be taken by the filing of a
notice of appeal within 30 days, and the filing of a
jurisdictional statement within 60 days, of the entry of the
final decision.
(c) Expedited Procedures.--It shall be the duty of the
United States District Court for the District of Columbia and
the Supreme Court of the United States to advance on the
docket and to expedite to the greatest possible extent the
disposition of the action and appeal.
SEC. 305. STAYS, EXCLUSIVITY, AND CONSTITUTIONAL REVIEW.
(a) No Stays.--No court may issue a stay of payment by any
party into the Fund pending its final judgment.
(b) Exclusivity of Review.--An action of the Administrator
or the Asbestos Insurers Commission for which review could
have been obtained under section 301, 302, or 303 shall not
be subject to judicial review in any other proceeding.
(c) Constitutional Review.--
(1) In general.--Notwithstanding any other provision of
law, any interlocutory or final judgment, decree, or order of
a Federal court holding this Act, or any provision or
application thereof, unconstitutional shall be reviewable as
a matter of right by direct appeal to the Supreme Court.
(2) Period for filing appeal.--Any such appeal shall be
filed not more than 30 days after entry of such judgment,
decree, or order.
(3) Repayment to asbestos trust and class action trust.--If
the transfer of the assets of any asbestos trust of a debtor
or any class action trust (or this Act as a whole) is held to
be unconstitutional or otherwise unlawful, the Fund shall
transfer the remaining balance of such assets (determined
under section 405(f)(1)(A)(iii)) back to the appropriate
asbestos trust or class action trust within 90 days after
final judicial action on the legal challenge, including the
exhaustion of all appeals.
TITLE IV--MISCELLANEOUS PROVISIONS
SEC. 401. FALSE INFORMATION.
(a) In General.--Chapter 63 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 1348. Fraud and false statements in connection with
participation in Asbestos Injury Claims Resolution Fund
``(a) Fraud Relating to Asbestos Injury Claims Resolution
Fund.--Whoever knowingly and willfully executes, or attempts
to execute, a scheme or artifice to defraud the Office of
Asbestos Disease Compensation or the Asbestos Insurers
Commission under title II of the Fairness in Asbestos Injury
Resolution Act of 2005 shall be fined under this title or
imprisoned not more than 20 years, or both.
``(b) False Statement Relating to Asbestos Injury Claims
Resolution Fund.--Whoever, in any matter involving the Office
of Asbestos Disease Compensation or the Asbestos Insurers
Commission, knowingly and willfully--
``(1) falsifies, conceals, or covers up by any trick,
scheme, or device a material fact;
``(2) makes any materially false, fictitious, or fraudulent
statements or representations; or
``(3) makes or uses any false writing or document knowing
the same to contain any materially false, fictitious, or
fraudulent statement or entry, in connection with the award
of a claim or the determination of a participant's payment
obligation under title I or II of the Fairness in Asbestos
Injury Resolution Act of 2005 shall be fined under this title
or imprisoned not more than 10 years, or both.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 63 of title 18, United States Code, is
amended by adding at the end the following:
``1348. Fraud and false statements in connection with participation in
Asbestos Injury Claims Resolution Fund.''.
SEC. 402. EFFECT ON BANKRUPTCY LAWS.
(a) No Automatic Stay.--Section 362(b) of title 11, United
States Code, is amended--
(1) in paragraph (17), by striking ``or'' at the end;
(2) in paragraph (18), by striking the period at the end
and inserting ``; or''; and
(3) by inserting after paragraph (18) the following:
``(19) under subsection (a) of this section of the
enforcement of any payment obligations under section 204 of
the Fairness in Asbestos Injury Resolution Act of 2005,
against a debtor, or the property of the estate of a debtor,
that is a participant (as that term is defined in section 3
of that Act).''.
(b) Assumption of Executory Contract.--Section 365 of title
11, United States Code, is amended by adding at the end the
following:
``(p) If a debtor is a participant (as that term is defined
in section 3 of the Fairness in Asbestos Injury Resolution
Act of 2005), the trustee shall be deemed to have assumed all
executory contracts entered into by the participant under
section 204 of that Act. The trustee may not reject any such
executory contract.''.
(c) Allowed Administrative Expenses.--Section 503 of title
11, United States Code, is amended by adding at the end the
following:
``(c)(1) Claims or expenses of the United States, the
Attorney General, or the Administrator (as that term is
defined in section 3 of the Fairness in Asbestos Injury
Resolution Act of 2005) based upon the asbestos payment
obligations of a debtor that is a Participant (as that term
is defined in section 3 of that Act), shall be paid as an
allowed administrative expense. The debtor shall not be
entitled to either notice or a hearing with respect to such
claims.
``(2) For purposes of paragraph (1), the term `asbestos
payment obligation' means any payment obligation under title
II of the Fairness in Asbestos Injury Resolution Act of
2005.''.
(d) No Discharge.--Section 523 of title 11, United States
Code, is amended by adding at the end the following:
``(f) A discharge under section 727, 1141, 1228, or 1328 of
this title does not discharge any debtor that is a
participant (as that term is defined in section 3 of the
Fairness in Asbestos Injury Resolution Act of 2005) of the
debtor's payment obligations assessed against the participant
under title II of that Act.''.
(e) Payment.--Section 524 of title 11, United States Code,
is amended by adding at the end the following:
``(i) Participant Debtors.--
``(1) In general.--Paragraphs (2) and (3) shall apply to a
debtor who--
``(A) is a participant that has made prior asbestos
expenditures (as such terms are defined in the Fairness in
Asbestos Injury Resolution Act of 2005); and
``(B) is subject to a case under this title that is
pending--
``(i) on the date of enactment of the Fairness in Asbestos
Injury Resolution Act of 2005; or
``(ii) at any time during the 1-year period preceding the
date of enactment of that Act.
``(2) Tier i debtors.--A debtor that has been assigned to
Tier I under section 202 of
[[Page S3932]]
the Fairness in Asbestos Injury Resolution Act of 2005, shall
make payments in accordance with sections 202 and 203 of that
Act.
``(3) Treatment of payment obligations.--All payment
obligations of a debtor under sections 202 and 203 of the
Fairness in Asbestos Injury Resolution Act of 2005 shall--
``(A) constitute costs and expenses of administration of a
case under section 503 of this title;
``(B) notwithstanding any case pending under this title, be
payable in accordance with section 202 of that Act;
``(C) not be stayed;
``(D) not be affected as to enforcement or collection by
any stay or injunction of any court; and
``(E) not be impaired or discharged in any current or
future case under this title.''.
(f) Treatment of Trusts.--Section 524 of title 11, United
States Code, as amended by this Act, is amended by adding at
the end the following:
``(j) Asbestos Trusts.--
``(1) In general.--A trust shall assign a portion of the
corpus of the trust to the Asbestos Injury Claims Resolution
Fund (referred to in this subsection as the `Fund') as
established under the Fairness in Asbestos Injury Resolution
Act of 2005 if the trust qualifies as a `trust' under section
201 of that Act.
``(2) Transfer of trust assets.--
``(A) In general.--
``(i) Except as provided under subparagraphs (B), (C), and
(E), the assets in any trust established to provide
compensation for asbestos claims (as defined in section 3 of
the Fairness in Asbestos Injury Resolution Act of 2005) shall
be transferred to the Fund not later than 6 months after the
date of enactment of the Fairness in Asbestos Injury
Resolution Act of 2005 or 30 days following funding of a
trust established under a reorganization plan subject to
section 202(c) of that Act. Except as provided under
subparagraph (B), the Administrator of the Fund shall accept
such assets and utilize them for any purposes of the Fund
under section 221 of such Act, including the payment of
claims for awards under such Act to beneficiaries of the
trust from which the assets were transferred.
``(ii) Notwithstanding any other provision of Federal or
State law, no liability of any kind may be imposed on a
trustee of a trust for transferring assets to the Fund in
accordance with clause (i).
``(B) Authority to refuse assets.--The Administrator of the
Fund may refuse to accept any asset that the Administrator
determines may create liability for the Fund in excess of the
value of the asset.
``(C) Allocation of trust assets.--If a trust under
subparagraph (A) has beneficiaries with claims that are not
asbestos claims, the assets transferred to the Fund under
subparagraph (A) shall not include assets allocable to such
beneficiaries. The trustees of any such trust shall determine
the amount of such trust assets to be reserved for the
continuing operation of the trust in processing and paying
claims that are not asbestos claims. The trustees shall
demonstrate to the satisfaction of the Administrator, or by
clear and convincing evidence in a proceeding brought before
the United States District Court for the District of Columbia
in accordance with paragraph (4), that the amount reserved is
properly allocable to claims other than asbestos claims.
``(D) Sale of fund assets.--The investment requirements
under section 222 of the Fairness in Asbestos Injury
Resolution Act of 2005 shall not be construed to require the
Administrator of the Fund to sell assets transferred to the
Fund under subparagraph (A).
``(E) Liquidated claims.--Except as specifically provided
in this subparagraph, all asbestos claims against a trust are
superseded and preempted as of the date of enactment of the
Fairness in Asbestos Injury Resolution Act of 2005, and a
trust shall not make any payment relating to asbestos claims
after that date. If, in the ordinary course and the normal
and usual administration of the trust consistent with past
practices, a trust had before the date of enactment of the
Fairness in Asbestos Injury Resolution Act of 2005, made all
determinations necessary to entitle an individual claimant to
a noncontingent cash payment from the trust, the trust shall
(i) make any lump-sum cash payment due to that claimant, and
(ii) make or provide for all remaining noncontingent payments
on any award being paid or scheduled to be paid on an
installment basis, in each case only to the same extent that
the trust would have made such cash payments in the ordinary
course and consistent with past practices before enactment of
that Act. A trust shall not make any payment in respect of
any alleged contingent right to recover any greater amount
than the trust had already paid, or had completed all
determinations necessary to pay, to a claimant in cash in
accordance with its ordinary distribution procedures in
effect as of June 1, 2003.
``(3) Injunction.--
``(A) In general.--Any injunction issued as part of the
formation of a trust described in paragraph (1) shall remain
in full force and effect. No court, Federal or State, may
enjoin the transfer of assets by a trust to the Fund in
accordance with this subsection pending resolution of any
litigation challenging such transfer or the validity of this
subsection or of any provision of the Fairness in Asbestos
Injury Resolution Act of 2005, and an interlocutory order
denying such relief shall not be subject to immediate appeal
under section 1291(a) of title 28.
``(B) Availability of fund assets.--Notwithstanding any
other provision of law, once such a transfer has been made,
the assets of the Fund shall be available to satisfy any
final judgment entered in such an action and such transfer
shall no longer be subject to any appeal or review--
``(i) declaring that the transfer effected a taking of a
right or property for which an individual is constitutionally
entitled to just compensation; or
``(ii) requiring the transfer back to a trust of any or all
assets transferred by that trust to the Fund.
``(4) Jurisdiction.--Solely for purposes of implementing
this subsection, personal jurisdiction over every covered
trust, the trustees thereof, and any other necessary party,
and exclusive subject matter jurisdiction over every question
arising out of or related to this subsection, shall be vested
in the United States District Court for the District of
Columbia. Notwithstanding any other provision of law,
including section 1127 of this title, that court may make any
order necessary and appropriate to facilitate prompt
compliance with this subsection, including assuming
jurisdiction over and modifying, to the extent necessary, any
applicable confirmation order or other order with continuing
and prospective application to a covered trust. The court may
also resolve any related challenge to the constitutionality
of this subsection or of its application to any trust,
trustee, or individual claimant. The Administrator of the
Fund may bring an action seeking such an order or
modification, under the standards of rule 60(b) of the
Federal Rules of Civil Procedure or otherwise, and shall be
entitled to intervene as of right in any action brought by
any other party seeking interpretation, application, or
invalidation of this subsection. Any order denying relief
that would facilitate prompt compliance with the transfer
provisions of this subsection shall be subject to immediate
appeal under section 304 of the Fairness in Asbestos Injury
Resolution Act of 2005. Notwithstanding any other provision
of this paragraph, for purposes of implementing the sunset
provisions of section 402(f) of such Act which apply to
asbestos trusts and the class action trust, the bankruptcy
court or United States district court having jurisdiction
over any such trust as of the date of enactment of such Act
shall retain such jurisdiction.''.
(g) No Avoidance of Transfer.--Section 546 of title 11,
United States Code, is amended by adding at the end the
following:
``(h) Notwithstanding the rights and powers of a trustee
under sections 544, 545, 547, 548, 549, and 550 of this
title, if a debtor is a participant (as that term is defined
in section 3 of the Fairness in Asbestos Injury Resolution
Act of 2005), the trustee may not avoid a transfer made by
the debtor under its payment obligations under section 202 or
203 of that Act.''.
(h) Confirmation of Plan.--Section 1129(a) of title 11,
United States Code, is amended by adding at the end the
following:
``(14) If the debtor is a participant (as that term is
defined in section 3 of the Fairness in Asbestos Injury
Resolution Act of 2005), the plan provides for the
continuation after its effective date of payment of all
payment obligations under title II of that Act.''.
(i) Effect on Insurance Receivership Proceedings.--
(1) Lien.--In an insurance receivership proceeding
involving a direct insurer, reinsurer or runoff participant,
there shall be a lien in favor of the Fund for the amount of
any assessment and any such lien shall be given priority over
all other claims against the participant in receivership,
except for the expenses of administration of the receivership
and the perfected claims of the secured creditors. Any State
law that provides for priorities inconsistent with this
provision is preempted by this Act.
(2) Payment of assessment.--Payment of any assessment
required by this Act shall not be subject to any automatic or
judicially entered stay in any insurance receivership
proceeding. This Act shall preempt any State law requiring
that payments by a direct insurer, reinsurer or runoff
participant in an insurance receivership proceeding be
approved by a court, receiver or other person. Payments of
assessments by any direct insurer or reinsurer participant
under this Act shall not be subject to the avoidance powers
of a receiver or a court in or relating to an insurance
receivership proceeding.
(j) Standing in Bankruptcy Proceedings.--The Administrator
shall have standing in any bankruptcy case involving a debtor
participant. No bankruptcy court may require the
Administrator to return property seized to satisfy
obligations to the Fund.
SEC. 403. EFFECT ON OTHER LAWS AND EXISTING CLAIMS.
(a) Effect on Federal and State Law.--The provisions of
this Act shall supersede any Federal or State law insofar as
such law may relate to any asbestos claim, including any
claim described under subsection (e)(2).
(b) Effect on Silica Claims.--
(1) In general.--
(A) Rule of construction.--Nothing in this Act shall be
construed to preempt, bar, or otherwise preclude any personal
injury claim attributable to exposure to silica as to which
the plaintiff--
[[Page S3933]]
(i) pleads with particularity and establishes by a
preponderance of evidence either that--
(I) no claim has been asserted or filed by or with respect
to the exposed person in any forum for any asbestos-related
condition and the exposed person (or another claiming on
behalf of or through the exposed person) is not eligible for
any monetary award under this Act; or
(II)(aa) the exposed person suffers or has suffered a
functional impairment that was caused by exposure to silica;
and
(bb) asbestos exposure was not a substantial contributing
factor to such functional impairment; and
(ii) satisfies the requirements of paragraph (2) .
(B) Preemption.--Claims attributable to exposure to silica
that fail to meet the requirements of subparagraph (A) shall
be preempted by this Act.
(2) Required evidence.--
(A) In general.--In any claim to which paragraph (1)
applies, the initial pleading (or, for claims pending on the
date of enactment of this Act, an amended pleading to be
filed within 60 days after such date, but not later than 60
days before trial, shall plead with particularity the
elements of subparagraph (A)(i)(I) or (II) and shall be
accompanied by the information described under subparagraph
(B)(i) through (iv).
(B) Pleadings.--If the claim pleads the elements of
paragraph (1)(A)(i)(II) and by the information described
under clauses (i) through (iv) of this subparagraph if the
claim pleads the elements of paragraph (1)(A)(i)(I)--
(i) admissible evidence, including at a minimum, a B-
reader's report, the underlying x-ray film and such other
evidence showing that the claim may be maintained and is not
preempted under paragraph (1);
(ii) notice of any previous lawsuit or claim for benefits
in which the exposed person, or another claiming on behalf of
or through the injured person, asserted an injury or
disability based wholly or in part on exposure to asbestos;
(iii) if known by the plaintiff after reasonable inquiry by
the plaintiff or his representative, the history of the
exposed person's exposure, if any, to asbestos; and
(iv) copies of all medical and laboratory reports
pertaining to the exposed person that refer to asbestos or
asbestos exposure.
(c) Superseding Provisions.--
(1) In general.--Except as provided under paragraph (3),
any agreement, understanding, or undertaking by any person or
affiliated group with respect to the treatment of any
asbestos claim that requires future performance by any party,
insurer of such party, settlement administrator, or escrow
agent shall be superseded in its entirety by this Act.
(2) No force or effect.--Except as provided under paragraph
(3), any such agreement, understanding, or undertaking by any
such person or affiliated group shall be of no force or
effect, and no person shall have any rights or claims with
respect to any such agreement, understanding, or undertaking.
(3) Exception.--
(A) In general.--Except as provided in section 202(f),
nothing in this Act shall abrogate a binding and legally
enforceable written settlement agreement between any
defendant participant or its insurer and a specific named
plaintiff with respect to the settlement of an asbestos claim
of the plaintiff if--
(i) before the date of enactment of this Act, the
settlement agreement was executed directly by the settling
defendant or the settling insurer and the individual
plaintiff, or on behalf of the plaintiff where the plaintiff
is incapacitated and the settlement agreement is signed by an
authorized legal representative;
(ii) the settlement agreement contains an express
obligation by the settling defendant or settling insurer to
make a future direct monetary payment or payments in a fixed
amount or amounts to the individual plaintiff; and
(iii) within 30 days after the date of enactment of this
Act, or such shorter time period specified in the settlement
agreement, all conditions to payment under the settlement
agreement have been fulfilled, so that the only remaining
performance due under the settlement agreement is the payment
or payments by the settling defendant or the settling
insurer.
(B) Bankruptcy-related agreements.--The exception set forth
in this paragraph shall not apply to any bankruptcy-related
agreement.
(C) Collateral source.--Any settlement payment under this
section is a collateral source if the plaintiff seeks
recovery from the Fund.
(D) Abrogation.--Nothing in subparagraph (A) shall abrogate
a settlement agreement otherwise satisfying the requirements
of that subparagraph if such settlement agreement expressly
anticipates the enactment of this Act and provides for the
effects of this Act.
(E) Health care insurance or expenses settlements.--Nothing
in this Act shall abrogate or terminate an otherwise fully
enforceable settlement agreement which was executed before
the date of enactment of this Act directly by the settling
defendant or the settling insurer and a specific named
plaintiff to pay the health care insurance or health care
expenses of the plaintiff.
(d) Exclusive Remedy.--
(1) In general.--Except as provided under paragraph (2),
the remedies provided under this Act shall be the exclusive
remedy for any asbestos claim, including any claim described
in subsection (e)(2), under any Federal or State law.
(2) Civil actions at trial.--
(A) In general.--This Act shall not apply to any asbestos
claim that--
(i) is a civil action filed in a Federal or State court
(not including a filing in a bankruptcy court);
(ii) is not part of a consolidation of actions or a class
action; and
(iii) on the date of enactment of this Act--
(I) in the case of a civil action which includes a jury
trial, is before the jury after its impanelling and
commencement of presentation of evidence, but before its
deliberations;
(II) in the case of a civil action which includes a trial
in which a judge is the trier of fact, is at the presentation
of evidence at trial; or
(III) a verdict, final order, or final judgment has been
entered by a trial court.
(B) Nonapplicability.--This Act shall not apply to a civil
action described under subparagraph (A) throughout the final
disposition of the action.
(e) Bar on Asbestos Claims.--
(1) In general.--No asbestos claim (including any claim
described in paragraph (2)) may be pursued, and no pending
asbestos claim may be maintained, in any Federal or State
court, except as provided under subsection (d)(2).
(2) Certain specified claims.--
(A) In general.--Subject to section 404 (d) and (e)(3) of
this Act, no claim may be brought or pursued in any Federal
or State court or insurance receivership proceeding--
(i) relating to any default, confessed or stipulated
judgment on an asbestos claim if the judgment debtor
expressly agreed, in writing or otherwise, not to contest the
entry of judgment against it and the plaintiff expressly
agreed, in writing or otherwise, to seek satisfaction of the
judgment only against insurers or in bankruptcy;
(ii) relating to the defense, investigation, handling,
litigation, settlement, or payment of any asbestos claim by
any participant, including claims for bad faith or unfair or
deceptive claims handling or breach of any duties of good
faith; or
(iii) arising out of or relating to the asbestos-related
injury of any individual and--
(I) asserting any conspiracy, concert of action, aiding or
abetting, act, conduct, statement, misstatement, undertaking,
publication, omission, or failure to detect, speak, disclose,
publish, or warn relating to the presence or health effects
of asbestos or the use, sale, distribution, manufacture,
production, development, inspection, advertising, marketing,
or installation of asbestos; or
(II) asserting any conspiracy, act, conduct, statement,
omission, or failure to detect, disclose, or warn relating to
the presence or health effects of asbestos or the use, sale,
distribution, manufacture, production, development,
inspection, advertising, marketing, or installation of
asbestos, asserted as or in a direct action against an
insurer or reinsurer based upon any theory, statutory,
contract, tort, or otherwise; or
(iv) by any third party, and premised on any theory,
allegation, or cause of action, for reimbursement of
healthcare costs allegedly associated with the use of or
exposure to asbestos, whether such claim is asserted
directly, indirectly or derivatively.
(B) Exceptions.--Subparagraph (A) (ii) and (iii) shall not
apply to claims against participants by persons--
(i) with whom the participant is in privity of contract;
(ii) who have received an assignment of insurance rights
not otherwise voided by this Act; or
(iii) who are beneficiaries covered by the express terms of
a contract with that participant.
(3) Preemption.--Any action asserting an asbestos claim
(including a claim described in paragraph (2)) in any Federal
or State court is preempted by this Act, except as provided
under subsection (d)(2).
(4) Dismissal.--Except as provided under subsection (d)(2),
no judgment other than a judgment of dismissal may be entered
in any such action, including an action pending on appeal, or
on petition or motion for discretionary review, on or after
the date of enactment of this Act. A court may dismiss any
such action on its motion. If the court denies the motion to
dismiss, it shall stay further proceedings until final
disposition of any appeal taken under this Act.
(5) Removal.--
(A) In general.--If an action in any State court under
paragraph (3) is preempted, barred, or otherwise precluded
under this Act, and 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
[[Page S3934]]
actions pending (including on appeal) on the date of
enactment of this Act.
(D) Review of remand orders.--
(i) In general.--Section 1447 of title 28, United States
Code, shall apply to any removal of a case under this
section, except that notwithstanding subsection (d) of that
section, a court of appeals may accept an appeal from an
order of a district court granting or denying a motion to
remand an action to the State court from which it was removed
if application is made to the court of appeals not less than
7 days after entry of the order.
(ii) Time period for judgment.--If the court of appeals
accepts an appeal under clause (i), the court shall complete
all action on such appeal, including rendering judgment, not
later than 60 days after the date on which such appeal was
filed, unless an extension is granted under clause (iii).
(iii) Extension of time period.--The court of appeals may
grant an extension of the 60-day period described in clause
(ii) if--
(I) all parties to the proceeding agree to such extension,
for any period of time; or
(II) such extension is for good cause shown and in the
interests of justice, for a period not to exceed 10 days.
(iv) Denial of appeal.--If a final judgment on the appeal
under clause (i) is not issued before the end of the period
described in clause (ii), including any extension under
clause (iii), the appeal shall be denied.
(E) Jurisdiction.--The jurisdiction of the district court
shall be limited to--
(i) determining whether removal was proper; and
(ii) determining, based on the evidentiary record, whether
the claim presented is preempted, barred, or otherwise
precluded under this Act.
(6) Credits.--
(A) In general.--If, notwithstanding the express intent of
Congress stated in this section, any court finally determines
for any reason that an asbestos claim is not barred under
this subsection and is not subject to the exclusive remedy or
preemption provisions of this section, then any participant
required to satisfy a final judgment executed with respect to
any such claim may elect to receive a credit against any
assessment owed to the Fund equal to the amount of the
payment made with respect to such executed judgment.
(B) Requirements.--The Administrator shall require
participants seeking credit under this paragraph to
demonstrate that the participant--
(i) timely pursued all available remedies, including
remedies available under this paragraph to obtain dismissal
of the claim; and
(ii) notified the Administrator at least 20 days before the
expiration of any period within which to appeal the denial of
a motion to dismiss based on this section.
(C) Information.--The Administrator may require a
participant seeking credit under this paragraph to furnish
such further information as is necessary and appropriate to
establish eligibility for, and the amount of, the credit.
(D) Intervention.--The Administrator may intervene in any
action in which a credit may be due under this paragraph.
SEC. 404. EFFECT ON INSURANCE AND REINSURANCE CONTRACTS.
(a) Erosion of Insurance Coverage Limits.--
(1) Definitions.--In this section, the following
definitions shall apply:
(A) Deemed erosion amount.--The term ``deemed erosion
amount'' means the amount of erosion deemed to occur at
enactment under paragraph (2).
(B) Early sunset.--The term ``early sunset'' means an event
causing termination of the program under section 405(f) which
relieves the insurer participants of paying some portion of
the aggregate payment level of $46,025,000,000 required under
section 212(a)(2)(A).
(C) Earned erosion amount.--The term ``earned erosion
amount'' means, in the event of any early sunset under
section 405(f), the percentage, as set forth in the following
schedule, depending on the year in which the defendant
participants' funding obligations end, of those amounts
which, at the time of the early sunset, a defendant
participant has paid to the fund and remains obligated to pay
into the fund.
Year After Enactment In Which Defendant Participant's Funding
Obligation Ends: Applicable Percentage:
2.........................................................67.06 ....
3.........................................................86.72 ....
4.........................................................96.55 ....
5........................................................102.45 ....
6.........................................................90.12 ....
7.........................................................81.32 ....
8.........................................................74.71 ....
9.........................................................69.58 ....
10........................................................65.47 ....
11........................................................62.11 ....
12........................................................59.31 ....
13........................................................56.94 ....
14........................................................54.90 ....
15........................................................53.14 ....
16........................................................51.60 ....
17........................................................50.24 ....
18........................................................49.03 ....
19........................................................47.95 ....
20........................................................46.98 ....
21........................................................46.10 ....
22........................................................45.30 ....
23........................................................44.57 ....
24........................................................43.90 ....
25........................................................43.28 ....
26........................................................42.71 ....
27........................................................42.18 ....
28........................................................40.82 ....
29........................................................39.42 ....
(D) Remaining aggregate products limits.--The term
``remaining aggregate products limits'' means aggregate
limits that apply to insurance coverage granted under the
``products hazard'', ``completed operations hazard'', or
``Products--Completed Operations Liability'' in any
comprehensive general liability policy issued between
calendar years 1940 and 1986 to cover injury which occurs in
any State, as reduced by--
(i) any existing impairment of such aggregate limits as of
the date of enactment of this Act; and
(ii) the resolution of claims for reimbursement or coverage
of liability or paid or incurred loss for which notice was
provided to the insurer before the date of enactment of this
Act.
(E) Scheduled payment amounts.--The term ``scheduled
payment amounts'' means the future payment obligation to the
Fund under this Act from a defendant participant in the
amount established under sections 203 and 204.
(F) Unearned erosion amount.--The term ``unearned erosion
amount'' means, in the event of any early sunset under
section 405(f), the difference between the deemed erosion
amount and the earned erosion amount.
(2) Quantum and timing of erosion.--
(A) Erosion upon enactment.--The collective payment
obligations to the Fund of the insurer and reinsurer
participants as assessed by the Administrator shall be deemed
as of the date of enactment of this Act to erode remaining
aggregate products limits available to a defendant
participant only in an amount of 38.1 percent of each
defendant participant's scheduled payment amount.
(B) No assertion of claim.--No insurer or reinsurer may
assert any claim against a defendant participant or captive
insurer for insurance, reinsurance, payment of a deductible,
or retrospective premium adjustment arising out of that
insurer's or reinsurer's payments to the Fund or the erosion
deemed to occur under this section.
(C) Policies without certain limits or with exclusion.--
Except as provided under subparagraph (E), nothing in this
section shall require or permit the erosion of any insurance
policy or limit that does not contain an aggregate products
limit, or that contains an asbestos exclusion.
(D) Treatment of consolidation election.--If an affiliated
group elects consolidation as provided in section 204(f), the
total erosion of limits for the affiliated group under
paragraph (2)(A) shall not exceed 59.64 percent of the
scheduled payment amount of the single payment obligation for
the entire affiliated group. The total erosion of limits for
any individual defendant participant in the affiliated group
shall not exceed its individual share of 59.64 percent of the
affiliated group's scheduled payment amount, as measured by
the individual defendant participant's percentage share of
the affiliated group's prior asbestos expenditures.
(E) Rule of construction.--Notwithstanding any other
provision of this section, nothing in this Act shall be
deemed to erode remaining aggregate products limits of a
defendant participant that can demonstrate by a reponderance
of the evidence that 75 percent of its prior asbestos
expenditures were made in defense or satisfaction of asbestos
claims alleging bodily injury arising exclusively from the
exposure to asbestos at premises owned, rented, or controlled
by the defendant participant (a ``premises defendant''). In
calculating such percentage, where expenditures were made in
defense or satisfaction of asbestos claims alleging bodily
injury due to exposure to the defendant participant's
products and to asbestos at premises owned, rented, or
controlled by the defendant participant, half of such
expenditures shall be deemed to be for such premises
exposures. If a defendant participant establishes itself as a
premises defendant, 75 percent of the payments by such
defendant participant shall erode coverage limits, if any,
applicable to premises liabilities under applicable law.
(3) Method of erosion.--
(A) Allocation.--The amount of erosion allocated to each
defendant participant shall be allocated among periods in
which policies with remaining aggregate product limits are
available to that defendant participant pro rata by policy
period, in ascending order by attachment point.
(B) Other erosion methods.--
(i) In general.--Notwithstanding subparagraph (A), the
method of erosion of any remaining aggregate products limits
which are subject to--
(I) a coverage-in-place or settlement agreement between a
defendant participant and 1 or more insurance participants as
of the date of enactment; or
(II) a final and nonappealable judgment as of the date of
enactment or resulting from a claim for coverage or
reimbursement pending as of such date, shall be as specified
in such agreement or judgment with regard to erosion
applicable to such insurance participants' policies.
(ii) Remaining limits.--To the extent that a final
nonappealable judgment or settlement agreement to which an
insurer participant and a defendant participant are parties
in effect as of the date of enactment of this Act
extinguished a defendant participant's right to seek coverage
for asbestos claims under an insurer participant's policies,
any
[[Page S3935]]
remaining limits in such policies shall not be considered to
be remaining aggregate products limits under subsection
(a)(1)(A).
(4) Restoration of aggregate products limits upon early
sunset.--
(A) Restoration.--In the event of an early sunset, any
unearned erosion amount will be deemed restored as aggregate
products limits available to a defendant participant as of
the date of enactment.
(B) Method of restoration.--The unearned erosion amount
will be deemed restored to each defendant participant's
policies in such a manner that the last limits that were
deemed eroded at enactment under this subsection are deemed
to be the first limits restored upon early sunset.
(C) Tolling of coverage claims.--In the event of an early
sunset, the applicable statute of limitations and contractual
provisions for the filing of claims under any insurance
policy with restored aggregate products limits shall be
deemed tolled after the date of enactment through the date 6
months after the date of early sunset.
(5) Payments by defendant participant.--Payments made by a
defendant participant shall be deemed to erode, exhaust, or
otherwise satisfy applicable self-insured retentions,
deductibles, retrospectively rated premiums, and limits
issued by nonparticipating insolvent or captive insurance
companies. Reduction of remaining aggregate limits under this
subsection shall not limit the right of a defendant
participant to collect from any insurer not a participant.
(6) Effect on other insurance claims.--Other than as
specified in this subsection, this Act does not alter,
change, modify, or affect insurance for claims other than
asbestos claims.
(b) Dispute Resolution Procedure.--
(1) Arbitration.--The parties to a dispute regarding the
erosion of insurance coverage limits under this section may
agree in writing to settle such dispute by arbitration. Any
such provision or agreement shall be valid, irrevocable, and
enforceable, except for any grounds that exist at law or in
equity for revocation of a contract.
(2) Title 9, united states code.--Arbitration of such
disputes, awards by arbitrators, and confirmation of awards
shall be governed by title 9, United States Code, to the
extent such title is not inconsistent with this section. In
any such arbitration proceeding, the erosion principles
provided for under this section shall be binding on the
arbitrator, unless the parties agree to the contrary.
(3) Final and binding award.--An award by an arbitrator
shall be final and binding between the parties to the
arbitration, but shall have no force or effect on any other
person. The parties to an arbitration may agree that in the
event a policy which is the subject matter of an award is
subsequently determined to be eroded in a manner different
from the manner determined by the arbitration in a judgment
rendered by a court of competent jurisdiction from which no
appeal can or has been taken, such arbitration award may be
modified by any court of competent jurisdiction upon
application by any party to the arbitration. Any such
modification shall govern the rights and obligations between
such parties after the date of such modification.
(c) Effect on Nonparticipants.--
(1) In general.--No insurance company or reinsurance
company that is not a participant, other than a captive
insurer, shall be entitled to claim that payments to the Fund
erode, exhaust, or otherwise limit the nonparticipant's
insurance or reinsurance obligations.
(2) Other claims.--Nothing in this Act shall preclude a
participant from pursuing any claim for insurance or
reinsurance from any person that is not a participant other
than a captive insurer.
(d) Finite Risk Policies Not Affected.--
(1) In general.--Notwithstanding any other provision of
this Act, except subject to section 212(a)(1)(D), this Act
shall not alter, affect or impair any rights or obligations
of--
(A) any party to an insurance contract that expressly
provides coverage for governmental charges or assessments
imposed to replace insurance or reinsurance liabilities in
effect on the date of enactment of this Act; or
(B) subject to paragraph (2), any person with respect to
any insurance or reinsurance purchased by a participant after
December 31, 1990, that expressly (but not necessarily
exclusively) provides coverage for asbestos liabilities,
including those policies commonly referred to as ``finite
risk'' policies.
(2) Limitation.--No person may assert that any amounts paid
to the Fund in accordance with this Act are covered by any
policy described under paragraph (1)(B) purchased by a
defendant participant, unless such policy specifically
provides coverage for required payments to a Federal trust
fund established by a Federal statute to resolve asbestos
injury claims.
(e) Effect on Certain Insurance and Reinsurance Claims.--
(1) No coverage for fund assessments.--No participant or
captive insurer may pursue an insurance or reinsurance claim
against another participant or captive insurer for payments
to the Fund required under this Act, except under a contract
specifically providing insurance or reinsurance for required
payments to a Federal trust fund established by a Federal
statute to resolve asbestos injury claims or, where
applicable, under finite risk policies under subsection (d).
(2) Certain insurance assignments voided.--Any assignment
of any rights to insurance coverage for asbestos claims to
any person who has asserted an asbestos claim before the date
of enactment of this Act, or to any trust, person, or other
entity not part of an affiliated group as defined in section
201(1) of this Act established or appointed for the purpose
of paying asbestos claims which were asserted before such
date of enactment, or by any Tier I defendant participant,
before any sunset of this Act, shall be null and void. This
subsection shall not void or affect in any way any
assignments of rights to insurance coverage other than to
asbestos claimants or to trusts, persons, or other entities
not part of an affiliated group as defined in section 201(1)
of this Act established or appointed for the purpose of
paying asbestos claims, or by Tier I defendant participants.
(3) Insurance claims preserved.--Notwithstanding any other
provision of this Act, this Act shall not alter, affect, or
impair any rights or obligations of any person with respect
to any insurance or reinsurance for amounts that any person
pays, has paid, or becomes legally obligated to pay in
respect of asbestos or other claims, except to the extent
that--
(A) such person pays or becomes legally obligated to pay
claims that are superseded by section 403;
(B) any such rights or obligations of such person with
respect to insurance or reinsurance are prohibited by
paragraph (1) or (2) of subsection (e); or
(C) the limits of insurance otherwise available to such
participant in respect of asbestos claims are deemed to be
eroded under subsection (a).
SEC. 405. ANNUAL REPORT OF THE ADMINISTRATOR AND SUNSET OF
THE ACT.
(a) In General.--The Administrator shall submit an annual
report to the Committee on the Judiciary of the Senate and
the Committee on the Judiciary of the House of
Representatives on the operation of the Asbestos Injury
Claims Resolution Fund within 6 months after the close of
each fiscal year.
(b) Contents of Report.--The annual report submitted under
this subsection shall include an analysis of--
(1) the claims experience of the program during the most
recent fiscal year, including--
(A) the number of claims made to the Office and a
description of the types of medical diagnoses and asbestos
exposures underlying those claims;
(B) the number of claims denied by the Office and a
description of the types of medical diagnoses and asbestos
exposures underlying those claims, and a general description
of the reasons for their denial;
(C) a summary of the eligibility determinations made by the
Office under section 114;
(D) a summary of the awards made from the Fund, including
the amount of the awards; and
(E) for each eligible condition, a statement of the
percentage of asbestos claimants who filed claims during the
prior calendar year and were determined to be eligible to
receive compensation under this Act, who have received the
compensation to which such claimants are entitled according
to section 131;
(2) the administrative performance of the program,
including--
(A) the performance of the program in meeting the time
limits prescribed by law and an analysis of the reasons for
any systemic delays;
(B) any backlogs of claims that may exist and an
explanation of the reasons for such backlogs;
(C) the costs to the Fund of administering the program; and
(D) any other significant factors bearing on the efficiency
of the program;
(3) the financial condition of the Fund, including--
(A) statements of the Fund's revenues, expenses, assets,
and liabilities;
(B) the identity of all participants, the funding
allocations of each participant, and the total amounts of all
payments to the Fund;
(C) a list of all financial hardship or inequity
adjustments applied for during the fiscal year, and the
adjustments that were made during the fiscal year;
(D) a statement of the investments of the Fund; and
(E) a statement of the borrowings of the Fund;
(4) the financial prospects of the Fund, including--
(A) an estimate of the number and types of claims, the
amount of awards, and the participant payment obligations for
the next fiscal year;
(B) an analysis of the financial condition of the Fund,
including an estimation of the Fund's ability to pay claims
for the subsequent 5 years in full as and when required, an
evaluation of the Fund's ability to retire its existing debt
and assume additional debt, and an evaluation of the Fund's
ability to satisfy other obligations under the program; and
(C) a report on any changes in projections made in earlier
annual reports or sunset analyses regarding the Fund's
ability to meet its financial obligations;
(5) any recommendations from the Advisory Committee on
Asbestos Disease Compensation and the Medical Advisory
Committee of the Fund to improve the diagnostic, exposure,
and medical criteria so as to pay only those claimants whose
injuries are caused by exposure to asbestos;
[[Page S3936]]
(6) a summary of the results of audits conducted under
section 115; and
(7) a summary of prosecutions under section 1348 of title
18, United States Code (as added by this Act).
(c) Claims Analysis.--If the Administrator concludes, on
the basis of the annual report submitted under this section,
that the Fund is compensating claims for injuries that are
not caused by exposure to asbestos and compensating such
claims may, currently or in the future, undermine the Fund's
ability to compensate persons with injuries that are caused
by exposure to asbestos, the Administrator shall include in
the report an analysis of the reasons for the situation, a
description of the range of reasonable alternatives for
responding to the situation, and a recommendation as to which
alternative best serves the interest of claimants and the
public. The report shall include a description of changes in
the diagnostic, exposure, or medical criteria of section 121
that the Administrator believes may be necessary to protect
the Fund from compensating claims not caused by exposure to
asbestos.
(d) Shortfall Analysis.--
(1) In general.--
(A) Analysis.--If the Administrator concludes, on the basis
of the information contained in the annual report submitted
under this section, that the Fund may not be able to pay
claims as such claims become due at any time within the next
5 years, the Administrator shall include in the report an
analysis of the reasons for the situation, an estimation of
when the Fund will no longer be able to pay claims as such
claims become due, a description of the range of reasonable
alternatives for responding to the situation, and a
recommendation as to which alternative best serves the
interest of claimants and the public. The report may include
a description of changes in the diagnostic, exposure, or
medical criteria of section 121 that the Administrator
believes may be necessary to protect the Fund.
(B) Range of alternatives.--The range of alternatives under
subparagraph (A) may include--
(i) triggering the termination of this Act under subsection
(f) at any time after the date of enactment of this Act; and
(ii) reform of the program set forth in titles I and II of
this Act (including changes in the diagnostic, exposure, or
medical criteria, changes in the enforcement or application
of those criteria, changes in the timing of payments, changes
in contributions by defendant participants, insurer
participants (or both such participants), or changes in award
values).
(2) Considerations.--In formulating recommendations, the
Administrator shall take into account the reasons for any
shortfall, actual or projected, which may include--
(A) financial factors, including return on investments,
borrowing capacity, interest rates, ability to collect
contributions, and other relevant factors;
(B) the operation of the Fund generally, including
administration of the claims processing, the ability of the
Administrator to collect contributions from participants,
potential problems of fraud, the adequacy of the criteria to
rule out idiopathic mesothelioma, and inadequate flexibility
to extend the timing of payments;
(C) the appropriateness of the diagnostic, exposure, and
medical criteria, including the adequacy of the criteria to
rule out idiopathic mesothelioma;
(D) the actual incidence of asbestos-related diseases,
including mesothelioma, based on epidemiological studies and
other relevant data;
(E) compensation of diseases with alternative causes; and
(F) other factors that the Administrator considers
relevant.
(3) Recommendation of termination.--Any recommendation of
termination should include a plan for winding up the affairs
of the Fund (and the program generally) within a defined
period, including paying in full all claims resolved at the
time the report is prepared. Any plan under this paragraph
shall provide for priority in payment to the claimants with
the most serious illnesses.
(4) Resolved claims.--For purposes of this section, a claim
shall be deemed resolved when the Administrator has
determined the amount of the award due the claimant, and
either the claimant has waived judicial review or the time
for judicial review has expired.
(e) Recommendations of Administrator and Commission.--
(1) In general.--If the Administrator recommends changes to
this Act under subsection (c), the recommendations and
accompanying analysis shall be referred to a special
commission consisting of the Attorney General, the Secretary
of Labor, the Secretary of Health and Human Services, the
Secretary of the Treasury, and the Secretary of Commerce, or
their designees. The Commission shall hold expedited public
hearings on the Administrator's alternatives and
recommendations and then make its own recommendations for
reform of the program set forth in titles I and II of this
Act. Within 180 days after receiving the Administrator's
recommendations, the Commission shall transmit its own
recommendations to the Congress in the same manner as set
forth in subsection (a).
(2) Referral.--If the Administrator recommends changes to,
or termination of, this Act under subsection (d), the
recommendations and accompanying analysis shall be referred
to the Commission. The Commission shall hold expedited public
hearings on the Administrator's alternatives and
recommendations and then make its own recommendations for
reform of the program set forth in titles I and II of this
Act. Within 180 days after receiving the Administrator's
recommendations, the Commission shall transmit its own
recommendations to Congress in the same manner as set forth
in subsection (a).
(f) Sunset of Act.--
(1) In general.--
(A) Termination.--Subject to paragraph (4), titles I
(except subtitle A) and II and sections 403 and 404(e)(2)
shall terminate as provided under paragraph (2), if the
Administrator--
(i) has begun the processing of claims; and
(ii) as part of the review conducted to prepare an annual
report under this section, determines that if any additional
claims are resolved, the Fund will not have sufficient
resources when needed to pay 100 percent of all resolved
claims while also meeting all other obligations of the Fund
under this Act, including the payment of--
(I) debt repayment obligations; and
(II) remaining obligations to the asbestos trust of a
debtor and the class action trust.
(B) Remaining obligations.--For purposes of subparagraph
(A)(ii), the remaining obligations to the asbestos trust of
the debtor and the class action trust shall be determined by
the Administrator by assuming that, instead of a lump-sum
payment, such trust had transferred its assets to the Fund on
an annual basis, taking into consideration relevant factors,
including the most recent projections made by the trust's
actuary before the date of enactment of this Act of the
amount and timing of future claim payments and administrative
and operating expenses.
(2) Effective date of termination.--A termination under
paragraph (1) shall take effect 180 days after the date of a
determination of the Administrator under paragraph (1) and
shall apply to all asbestos claims that have not been
resolved by the Fund as of the date of the determination.
(3) Resolved claims.--If a termination takes effect under
this subsection, all resolved claims shall be paid in full by
the Fund.
(4) Extinguished claims.--A claim that is extinguished
under the statute of limitations provisions in section 113(b)
is not revived at the time of sunset under this subsection.
(5) Continued funding.--If a termination takes effect under
this subsection, participants will still be required to make
payments as provided under subtitles A and B of title II. If
the full amount of payments required by title II is not
necessary for the Fund to pay claims that have been resolved
as of the date of termination, pay the Fund's debt and
obligations to the asbestos trusts and class action trust,
and support the Fund's continued operation as needed to pay
such claims, debt, and obligations, the Administrator may
reduce such payments. Any such reductions shall be allocated
among participants in approximately the same proportion as
the liability under subtitles A and B of title II.
(6) Sunset claims.--
(A) Definitions.--In this paragraph--
(i) the term ``sunset claims'' means claims filed with the
Fund, but not yet resolved, when this Act has terminated; and
(ii) the term ``sunset claimants'' means persons asserting
sunset claims.
(B) In general.--If a termination takes effect under this
subsection, the applicable statute of limitations for the
filing of sunset claims under subsection (g) shall be tolled
for any past or pending sunset claimants while such claimants
were pursuing claims filed under this Act. For those
claimants who decide to pursue a sunset claim in accordance
with subsection (g), the applicable statute of limitations
shall apply, except that claimants who filed a claim against
the Fund under this Act before the date of termination shall
have 2 years after the date of termination to file a sunset
claim in accordance with subsection (g).
(7) Asbestos trusts and class action trust.--On and after
the date of termination under this subsection, the trust
distribution program of any asbestos trust and the class
action trust shall be replaced with the medical criteria
requirements of section 121.
(8) Payment to asbestos trusts and class action trust.--The
amounts determined under paragraph (1)(B) for payment to the
asbestos trusts and the class action trust shall be
transferred to the respective asbestos trusts of the debtor
and the class action trust within 90 days.
(g) Nature of Claim After Sunset.--
(1) In general.--
(A) Relief.--On and after the date of termination under
subsection (f), any individual with an asbestos claim who has
not previously had a claim resolved by the Fund, may in a
civil action obtain relief in damages subject to the terms
and conditions under this subsection and paragraph (6) of
subsection (f).
(B) Resolved claims.--An individual who has had a claim
resolved by the Fund may not pursue a court action, except
that an individual who received an award for a nonmalignant
disease (Levels I through V) from the Fund may assert a claim
for a subsequent or progressive disease under this
subsection, unless the disease was diagnosed or the claimant
had discovered facts that would have led a reasonable person
to obtain such
[[Page S3937]]
a diagnosis before the date on which the previous claim
against the Fund was disposed.
(C) Mesthelioma claim.--An individual who received an award
for a nonmalignant or malignant disease (except mesothelioma)
(Levels I through VIII) from the Fund may assert a claim for
mesothelioma under this subsection, unless the mesothelioma
was diagnosed or the claimant had discovered facts that would
have led a reasonable person to obtain such a diagnosis
before the date on which the nonmalignant or other malignant
claim was disposed.
(2) Exclusive remedy.--As of the effective date of a
termination of this Act under subsection (f), an action under
paragraph (1) shall be the exclusive remedy for any asbestos
claim that might otherwise exist under Federal, State, or
other law, regardless of whether such claim arose before or
after the date of enactment of this Act or of the termination
of this Act, except that claims against the Fund that have
been resolved before the date of the termination
determination under subsection (f) may be paid by the Fund.
(3) Venue.--
(A) In general.--Actions under paragraph (1) may be brought
in--
(i) any Federal district court;
(ii) any State court in the State where the claimant
resides; or
(iii) any State court in a State where the asbestos
exposure occurred.
(B) Defendants not found.--If any defendant cannot be found
in the State described in clause (ii) or (iii) of
subparagraph (A), the claim may be pursued only against that
defendant in the Federal district court or the State court
located within any State in which the defendant may be found.
(C) Determination of most appropriate forum.--If a person
alleges that the asbestos exposure occurred in more than one
county (or Federal district), the trial court shall determine
which State and county (or Federal district) is the most
appropriate forum for the claim. If the court determines that
another forum would be the most appropriate forum for a
claim, the court shall dismiss the claim. Any otherwise
applicable statute of limitations shall be tolled beginning
on the date the claim was filed and ending on the date the
claim is dismissed under this subparagraph.
(D) State venue requirements.--Nothing in this paragraph
shall preempt or supersede any State's law relating to venue
requirements within that State which are more restrictive.
(4) Class action trusts.--Notwithstanding any other
provision of this section--
(A) after the assets of any class action trust have been
transferred to the Fund in accordance with section 203(b)(5),
no asbestos claim may be maintained with respect to asbestos
liabilities arising from the operations of a person with
respect to whose liabilities for asbestos claims a class
action trust has been established, whether such claim names
the person or its successors or affiliates as defendants; and
(B) if a termination takes effect under subsection (f), the
exclusive remedy for all asbestos claims (including sunset
claims and claims first arising or first presented after
termination of the Fund) arising from such operations will be
a claim against the class action trust to which the
Administrator has transferred funds under subsection (f)(8)
to pay asbestos claims, if necessary in proportionally
reduced amounts.
SEC. 406. RULES OF CONSTRUCTION RELATING TO LIABILITY OF THE
UNITED STATES GOVERNMENT.
(a) Causes of Actions.--Except as otherwise specifically
provided in this Act, nothing in this Act shall be construed
as creating a cause of action against the United States
Government, any entity established under this Act, or any
officer or employee of the United States Government or such
entity.
(b) Funding Liability.--Nothing in this Act shall be
construed to--
(1) create any obligation of funding from the United States
Government, other than the funding for personnel and support
as provided under this Act; or
(2) obligate the United States Government to pay any award
or part of an award, if amounts in the Fund are inadequate.
SEC. 407. RULES OF CONSTRUCTION.
(a) Libby, Montana Claimants.--Nothing in this Act shall
preclude the formation of a fund for the payment of eligible
medical expenses related to treating asbestos-related disease
for current and former residents of Libby, Montana. The
payment of any such medical expenses shall not be collateral
source compensation as defined under section 134(a).
(b) Healthcare From Provider of Choice.--Nothing in this
Act shall be construed to preclude any eligible claimant from
receiving healthcare from the provider of their choice.
SEC. 408. VIOLATIONS OF ENVIRONMENTAL HEALTH AND SAFETY
REQUIREMENTS.
(a) Asbestos in Commerce.--If the Administrator receives
information concerning conduct occurring after the date of
enactment of this Act that may have been a violation of
standards issued by the Environmental Protection Agency under
the Toxic Substances Control Act (15 U.S.C. 2601 et seq.),
relating to the manufacture, importation, processing,
disposal, and distribution in commerce of asbestos-containing
products, the Administrator shall refer the matter in writing
within 30 days after receiving that information to the
Administrator of the Environmental Protection Agency and the
United States attorney for possible civil or criminal
penalties, including those under section 17 of the Toxic
Substances Control Act (15 U.S.C. 2616), and to the
appropriate State authority with jurisdiction to investigate
asbestos matters.
(b) Asbestos as Air Pollutant.--If the Administrator
receives information concerning conduct occurring after the
date of enactment of this Act that may have been a violation
of standards issued by the Environmental Protection Agency
under the Clean Air Act (42 U.S.C. 7401 et seq.), relating to
asbestos as a hazardous air pollutant, the Administrator
shall refer the matter in writing within 30 days after
receiving that information to the Administrator of the
Environmental Protection Agency and the United States
attorney for possible criminal and civil penalties, including
those under section 113 of the Clean Air Act (42 U.S.C.
7413), and to the appropriate State authority with
jurisdiction to investigate asbestos matters.
(c) Occupational Exposure.--If the Administrator receives
information concerning conduct occurring after the date of
enactment of this Act that may have been a violation of
standards issued by the Occupational Safety and Health
Administration under the Occupational Safety and Health Act
of 1970 (29 U.S.C. 651 et seq.), relating to occupational
exposure to asbestos, the Administrator shall refer the
matter in writing within 30 days after receiving that
information and refer the matter to the Secretary of Labor or
the appropriate State agency with authority to enforce
occupational safety and health standards, for investigation
for possible civil or criminal penalties under section 17 of
the Occupational Safety and Health Act of 1970 (29 U.S.C.
666).
(d) Enhanced Criminal Penalties for Willful Violations of
Occupational Standards for Asbestos.--Section 17(e) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 656(e))
is amended--
(1) by striking ``Any'' and inserting ``(1) Except as
provided in paragraph (2), any''; and
(2) by adding at the end the following:
``(2) Any employer who willfully violates any standard
issued under section 6 with respect to the control of
occupational exposure to asbestos, shall upon conviction be
punished by a fine in accordance with section 3571 of title
18, United States Code, or by imprisonment for not more than
5 years, or both, except that if the conviction is for a
violation committed after a first conviction of such person,
punishment shall be by a fine in accordance with section 3571
of title 18, United States Code, or by imprisonment for not
more than 10 years, or both.''.
(e) Contributions to the Asbestos Trust Fund by EPA and
OSHA Asbestos Violators.--
(1) In general.--The Administrator shall assess employers
or other individuals determined to have violated asbestos
statutes, standards, or regulations administered by the
Department of Labor, the Environmental Protection Agency, and
their State counterparts, for contributions to the Asbestos
Injury Claims Resolution Fund (in this section referred to as
the ``Fund'').
(2) Identification of violators.--Each year, the
Administrator shall--
(A) in consultation with the Assistant Secretary of Labor
for Occupational Safety and Health, identify all employers
that, during the previous year, were subject to final orders
finding that they violated standards issued by the
Occupational Safety and Health Administration for control of
occupational exposure to asbestos (29 CFR 1910.1001,
1915.1001, and 1926.1101) or the equivalent asbestos
standards issued by any State under section 18 of the
Occupational Safety and Health Act (29 U.S.C. 668); and
(B) in consultation with the Administrator of the
Environmental Protection Agency, identify all employers or
other individuals who, during the previous year, were subject
to final orders finding that they violated asbestos
regulations administered by the Environmental Protection
Agency (including the National Emissions Standard for
Asbestos established under the Clean Air Act (42 U.S.C. 7401
et seq.), the asbestos worker protection standards
established under part 763 of title 40, Code of Federal
Regulations, and the regulations banning asbestos promulgated
under section 501 of this Act), or equivalent State asbestos
regulations.
(3) Assessment for contribution.--The Administrator shall
assess each such identified employer or other individual for
a contribution to the Fund for that year in an amount equal
to--
(A) 2 times the amount of total penalties assessed for the
first violation of occupational health and environmental
statutes, standards, or regulations;
(B) 4 times the amount of total penalties for a second
violation of such statutes, standards, or regulations; and
(C) 6 times the amount of total penalties for any
violations thereafter.
(4) Liability.--Any assessment under this subsection shall
be considered a liability under this Act.
(5) Payments.--Each such employer or other individual
assessed for a contribution to the Fund under this subsection
shall make the required contribution to the Fund within 90
days of the date of receipt of notice from the Administrator
requiring payment.
[[Page S3938]]
(6) Enforcement.--The Administrator is authorized to bring
a civil action under section 223(c) against any employer or
other individual who fails to make timely payment of
contributions assessed under this section.
(f) Review of Federal Sentencing Guidelines for
Environmental Crimes Related to Asbestos.--Under section 994
of title 28, United States Code, and in accordance with this
section, the United States Sentencing Commission shall review
and amend, as appropriate, the United States Sentencing
Guidelines and related policy statements to ensure that--
(1) appropriate changes are made within the guidelines to
reflect any statutory amendments that have occurred since the
time that the current guideline was promulgated;
(2) the base offense level, adjustments, and specific
offense characteristics contained in section 2Q1.2 of the
United States Sentencing Guidelines (relating to mishandling
of hazardous or toxic substances or pesticides;
recordkeeping, tampering, and falsification; and unlawfully
transporting hazardous materials in commerce) are increased
as appropriate to ensure that future asbestos-related
offenses reflect the seriousness of the offense, the harm to
the community, the need for ongoing reform, and the highly
regulated nature of asbestos;
(3) the base offense level, adjustments, and specific
offense characteristics are sufficient to deter and punish
future activity and are adequate in cases in which the
relevant offense conduct--
(A) involves asbestos as a hazardous or toxic substance;
and
(B) occurs after the date of enactment of this Act;
(4) the adjustments and specific offense characteristics
contained in section 2B1.1 of the United States Sentencing
Guidelines related to fraud, deceit, and false statements,
adequately take into account that asbestos was involved in
the offense, and the possibility of death or serious bodily
harm as a result;
(5) the guidelines that apply to organizations in chapter 8
of the United States Sentencing Guidelines are sufficient to
deter and punish organizational criminal misconduct that
involves the use, handling, purchase, sale, disposal, or
storage of asbestos; and
(6) the guidelines that apply to organizations in chapter 8
of the United States Sentencing Guidelines are sufficient to
deter and punish organizational criminal misconduct that
involves fraud, deceit, or false statements against the
Office of Asbestos Disease Compensation.
SEC. 409. NONDISCRIMINATION OF HEALTH INSURANCE.
(a) Denial, Termination, or Alteration of Health
Coverage.--No health insurer offering a health plan may deny
or terminate coverage, or in any way alter the terms of
coverage, of any claimant or the beneficiary of a claimant,
on account of the participation of the claimant or
beneficiary in a medical monitoring program under this Act,
or as a result of any information discovered as a result of
such medical monitoring.
(b) Definitions.--In this section:
(1) Health insurer.--The term ``health insurer'' means--
(A) an insurance company, healthcare service contractor,
fraternal benefit organization, insurance agent, third-party
administrator, insurance support organization, or other
person subject to regulation under the laws related to health
insurance of any State;
(B) a managed care organization; or
(C) an employee welfare benefit plan regulated under the
Employee Retirement Income Security Act of 1974 (29 U.S.C.
1001 et seq.).
(2) Health plan.--The term ``health plan'' means--
(A) a group health plan (as such term is defined in section
607 of the Employee Retirement Income Security Act of 1974
(29 U.S.C. 1167)), and a multiple employer welfare
arrangement (as defined in section 3(4) of such Act) that
provides health insurance coverage; or
(B) any contractual arrangement for the provision of a
payment for healthcare, including any health insurance
arrangement or any arrangement consisting of a hospital or
medical expense incurred policy or certificate, hospital or
medical service plan contract, or health maintenance
organizing subscriber contract.
(c) Conforming Amendments.--
(1) ERISA.--Section 702(a)(1) of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1182(a)(1)), is
amended by adding at the end the following:
``(I) Participation in a medical monitoring program under
the Fairness in Asbestos Injury Resolution Act of 2005.''.
(2) Public service health act.--Section 2702(a)(1) of the
Public Health Service Act (42 U.S.C. 300gg-1(a)(1)) is
amended by adding at the end the following:
``(I) Participation in a medical monitoring program under
the Fairness in Asbestos Injury Resolution Act of 2005.''.
(3) Internal revenue code of 1986.--Section 9802(a)(1) of
the Internal Revenue Code of 1986 is amended by adding at the
end the following:
``(I) Participation in a medical monitoring program under
the Fairness in Asbestos Injury Resolution Act of 2005.''.
TITLE V--ASBESTOS BAN
SEC. 501. PROHIBITION ON ASBESTOS CONTAINING PRODUCTS.
(a) In General.--Title II of the Toxic Substances Control
Act (15 U.S.C. 2641 et seq.) is amended--
(1) by inserting before section 201 (15 U.S.C. 2641) the
following:
``Subtitle A--General Provisions'';
and
(2) by adding at the end the following:
``Subtitle B--Ban of Asbestos Containing Products
``SEC. 221. BAN OF ASBESTOS CONTAINING PRODUCTS.
``(a) Definitions.--In this chapter:
``(1) Administrator.--The term `Administrator' means the
Administrator of the Environmental Protection Agency.
``(2) Asbestos.--The term `asbestos' includes--
``(A) chrysotile;
``(B) amosite;
``(C) crocidolite;
``(D) tremolite asbestos;
``(E) winchite asbestos;
``(F) richterite asbestos;
``(G) anthophyllite asbestos;
``(H) actinolite asbestos;
``(I) amphibole asbestos; and
``(J) any of the minerals listed under subparagraphs (A)
through (I) that has been chemically treated or altered, and
any asbestiform variety, type, or component thereof.
``(3) Asbestos containing product.--The term `asbestos
containing product' means any product (including any part) to
which asbestos is deliberately or knowingly added or used
because the specific properties of asbestos are necessary for
product use or function. Under no circumstances shall the
term `asbestos containing product' be construed to include
products that contain de minimus levels of naturally
occurring asbestos as defined by the Administrator not later
than 1 year after the date of enactment of this chapter.
``(4) Distribute in commerce.--The term `distribute in
commerce'--
``(A) has the meaning given the term in section 3 of the
Toxic Substances Control Act (15 U.S.C. 2602); and
``(B) shall not include--
``(i) an action taken with respect to an asbestos
containing product in connection with the end use of the
asbestos containing product by a person that is an end user,
or an action taken by a person who purchases or receives a
product, directly or indirectly, from an end user; or
``(ii) distribution of an asbestos containing product by a
person solely for the purpose of disposal of the asbestos
containing product in compliance with applicable Federal,
State, and local requirements.
``(b) In General.--Subject to subsection (c), the
Administrator shall promulgate--
``(1) not later than 1 year after the date of enactment of
this chapter, proposed regulations that--
``(A) prohibit persons from manufacturing, processing, or
distributing in commerce asbestos containing products; and
``(B) provide for implementation of subsections (c) and
(d); and
``(2) not later than 2 years after the date of enactment of
this chapter, final regulations that, effective 60 days after
the date of promulgation, prohibit persons from
manufacturing, processing, or distributing in commerce
asbestos containing products.
``(c) Exemptions.--
``(1) In general.--Any person may petition the
Administrator for, and the Administrator may grant, an
exemption from the requirements of subsection (b), if the
Administrator determines that--
``(A) the exemption would not result in an unreasonable
risk of injury to public health or the environment; and
``(B) the person has made good faith efforts to develop,
but has been unable to develop, a substance, or identify a
mineral that does not present an unreasonable risk of injury
to public health or the environment and may be substituted
for an asbestos containing product.
``(2) Terms and conditions.--An exemption granted under
this subsection shall be in effect for such period (not to
exceed 5 years) and subject to such terms and conditions as
the Administrator may prescribe.
``(3) Governmental use.--
``(A) In general.--The Administrator of the Environmental
Protection Agency shall provide an exemption from the
requirements of subsection (b), without review or limit on
duration, if such exemption for an asbestos containing
product is--
``(i) sought by the Secretary of Defense and the Secretary
certifies, and provides a copy of that certification to
Congress, that--
``(I) use of the asbestos containing product is necessary
to the critical functions of the Department;
``(II) no reasonable alternatives to the asbestos
containing product exist for the intended purpose; and
``(III) use of the asbestos containing product will not
result in an unreasonable risk to health or the environment;
or
``(ii) sought by the Administrator of the National
Aeronautics and Space Administration and the Administrator of
the National Aeronautics and Space Administration certifies,
and provides a copy of that certification to Congress, that--
``(I) the asbestos containing product is necessary to the
critical functions of the National Aeronautics and Space
Administration;
[[Page S3939]]
``(II) no reasonable alternatives to the asbestos
containing product exist for the intended purpose; and
``(III) the use of the asbestos containing product will not
result in an unreasonable risk to health or the environment.
``(B) Administrative procedure act.--Any certification
required under subparagraph (A) shall not be subject to
chapter 5 of title 5, United States Code (commonly referred
to as the `Administrative Procedure Act').
``(4) Specific exemptions.--The following are exempted:
``(A) Asbestos diaphragms for use in the manufacture of
chlor-alkali and the products and derivative therefrom.
``(B) Roofing cements, coatings, and mastics utilizing
asbestos that is totally encapsulated with asphalt, subject
to a determination by the Administrator of the Environmental
Protection Agency under paragraph (5).
``(5) Environmental protection agency review.--
``(A) Review in 18 months.--Not later than 18 months after
the date of enactment of this chapter, the Administrator of
the Environmental Protection Agency shall complete a review
of the exemption for roofing cements, coatings, and mastics
utilizing asbestos that are totally encapsulated with asphalt
to determine whether--
``(i) the exemption would result in an unreasonable risk of
injury to public health or the environment; and
``(ii) there are reasonable, commercial alternatives to the
roofing cements, coatings, and mastics utilizing asbestos
that is totally encapsulated with asphalt.
``(B) Revocation of exemption.--Upon completion of the
review, the Administrator of the Environmental Protection
Agency shall have the authority to revoke the exemption for
the products exempted under paragraph (4)(B), if warranted.
``(d) Disposal.--
``(1) In general.--Except as provided in paragraph (2), not
later than 3 years after the date of enactment of this
chapter, each person that possesses an asbestos containing
product that is subject to the prohibition established under
this section shall dispose of the asbestos containing
product, by a means that is in compliance with applicable
Federal, State, and local requirements.
``(2) Exemption.--Nothing in paragraph (1)--
``(A) applies to an asbestos containing product that--
``(i) is no longer in the stream of commerce; or
``(ii) is in the possession of an end user or a person who
purchases or receives an asbestos containing product directly
or indirectly from an end user; or
``(B) requires that an asbestos containing product
described in subparagraph (A) be removed or replaced.''.
(b) Technical and Conforming Amendments.--The table of
contents in section 1 of the Toxic Substances Control Act (15
U.S.C. prec. 2601) is amended--
(1) by inserting before the item relating to section 201
the following:
``Subtitle A--General Provisions'';
and
(2) by adding at the end of the items relating to title II
the following:
``Subtitle B--Ban of Asbestos Containing Products
``Sec. 221. Ban of asbestos containing products.''.
Mr. LEAHY. Mr. President, this day has been a long time in coming,
and I am pleased to join the Chairman of the Judiciary Committee,
Senator Feinstein, and others in sponsoring bipartisan legislation to
address the serious problem of asbestos-related disease. It is the
product of years of difficult and conscientious craftsmanship and
negotiation. Building on the Committee's work under Chairman Hatch, we
have striven to bring a fair and efficient plan to the Congress, a plan
that will ensure adequate compensation to the thousands of victims of
asbestos exposure, but that also will give due consideration to the
industries and the insurers that should, and will, provide that
compensation. Our bipartisan legislation does that. Asbestos exposure
has created a maze of arduous problems, and we have worked hard to
produce a balanced bill that offers fair solutions.
Senator Specter, with whom I have worked so hard on this legislation,
rightly calls this one of the most complex issues we have ever tackled.
It is not the bill that I would have written, were I alone responsible
for its drafting, nor is it the bill that Senator Specter might have
produced. Nor should anyone be surprised to hear that the interested
groups--the labor organizations, the industrial participants in the
trust fund, their insurers, the trial bar--are each less than pleased
with some portion of the bill or another. That is the essence of
legislative compromise: We have kept the ultimate goal of fair
compensation to victims as the lodestar of our efforts, and we have all
had to make sacrifices on a variety of subsidiary issues as we worked
together to resolve this emergency. What we have achieved is important
and a significant step toward a better, more efficient method to
compensate asbestos victims.
Asbestos is among the most lethal substances ever to be widely used
in the workplace. Between 1940 and 1980, more than 27.5 million workers
were exposed to asbestos on the job, and nearly 19 million of them had
high levels of exposure over long periods of time. We even know of
family members who have suffered asbestos-related disease from washing
the clothes of loved ones. The ravages of disease caused by asbestos
have affected tens of thousands of American families. We need better
health screening and swifter compensation for those affected. In light
of the devastating damage it has wreaked, it is hard to believe that
asbestos is still being used today, yet it is. This bill will change
that as well, protect against yet another generation of victims.
The economic harm caused by asbestos is also real, and the
bankruptcies that have resulted are a different kind of tragedy for
everyone--for workers and retirees, for shareholders, and for the
families that built these companies. In my home State of Vermont, the
Rutland Fire and Clay Company is among the more than 70 companies to
have declared bankruptcy.
As Chief Justice Rehnquist noted several years ago, ``the elephantine
mass of asbestos cases cries out for a legislative solution.'' Ortiz v.
Fibreboard Corp., 527 U.S. 815, 865 1999). In another Supreme Court
opinion, Justice Ginsburg declared that ``a nationwide administrative
claims processing regime would provide the most secure, fair, and
efficient means of compensating victims of asbestos exposure.'' Amchem
Products v. Windsor, 521 U.S. 591, 628-29, 1997). I agree, the Chairman
agrees, Senator Feinstein agrees, and we hope that many others in the
Senate will agree.
Weare encouraged by the favorable reception that this bill has
already generated from a wide array of interested parties. In the past
week, I have received letters of support from the International Union,
United Automobile, Aerospace & Agricultural Implement Workers of
America, UAW, the Veterans of Foreign Wars of the United States, VFW,
the Asbestos Study Group, and others. The UAW notes in its April 13th
letter, ``[The Specter-Leahy Proposal] will provide more equitable,
timely and certain compensation to the victims of asbestos-related
disease.'' The VFW letter of April 14 declares: ``The national trust
fund that you are proposing offers our members who are sick and dying
the opportunity to secure timely and fair compensation for the injury
they suffered in the course of serving their country.'' The National
Association of Manufacturers also released a statement expressing their
hope that this legislation will engender broad support.
These statements in many ways tell the story of what we have already
accomplished: We have drafted a bill that has garnered a favorable
response from labor, manufacturers, and companies with considerable
asbestos liabilities. We have worked on this legislation for several
years now, and I can assure you that garnering this level of consensus
has been no small feat. I ask unanimous consent that the text of these
letters be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
UAW,
Washington, DC, April 13, 2005.
Dear Senator: Senators Specter and Leahy recently put
forward a compromise asbestos compensation proposal, and have
indicated that they intend to introduce legislation
incorporating this proposal early next week. The UAW supports
the Specter-Leahy asbestos compensation proposal because we
believe it will provide more equitable, timely and certain
compensation to the victims of asbestos-related diseases.
There is widespread agreement that the current tort system
fails miserably in compensating asbestos victims. There are
often years of delay before victims receive any compensation.
Awards to victims are highly unpredictable, with similarly
situated individuals receiving vastly different amounts. Too
often compensation goes disproportionately to the less sick
at the expense of the most seriously ill victims. The
transaction costs, including lawyers' fees, are very high and
reduce the amounts received by victims. And even when victims
are awarded substantial compensation by the courts, these
judgments are often not collectable because the
[[Page S3940]]
defendant companies have filed for bankruptcy, leaving the
victims with little effective recourse.
The Specter-Leahy proposal would address these serious
problems by replacing the current tort system with a national
asbestos trust fund to compensate the victims of asbestos-
related diseases. By creating a no-fault administrative
system for process claims, this approach would provide
victims with speedier compensation, while reducing the
substantial lawyers' fees and other transaction costs in the
current adversarial litigation system. By compensating
victims pursuant to a fixed schedule of payments for
specified disease levels, this approach would also provide
predictable awards to individuals with similar illnesses, and
ensure that the most compensation goes to the most seriously
ill victims. Perhaps most importantly, by providing
compensation through a national asbestos trust fund, this
approach would ensure that victims will receive the full
amount of their award regardless of whether a particular
company had filed for bankruptcy.
The UAW is especially pleased that the Specter-Leahy
proposal does not permit any subrogation against worker
compensation or health care payments received by asbestos
victims. This will ensure that awards are not largely offset
by worker compensation or health care payments to which
victims are otherwise entitled. In our judgment, the
provisions barring any subrogation are essential to ensuring
that victims receive adequate compensation.
The UAW also is pleased that the Specter-Leahy proposal
establishes a mechanism for defendant companies and insurers
to contribute to the national asbestos compensation fund,
thereby spreading the costs of compensating victims across a
broad section of the business and insurance community. We
believe this broad-based, predictable financing mechanism is
vastly preferable to the current tort system, which has
driven most asbestos manufacturers into bankruptcy and is
threatening the economic viability of many other companies
that used products containing asbestos, thereby jeopardizing
the jobs of tens of thousands of workers.
The Specter-Leahy proposal provides for reversion of
asbestos claims to the tort system in the event the national
asbestos trust fund does not have sufficient funds to pay all
claims, or in the event the compensation system does not
become operational quickly enough. Although the UAW hopes
that these reversion provisions will never be triggered, we
believe these provisions are essential to ensure that victims
will always have some effective recourse for receiving
compensation, and to give all stakeholders an incentive to
help make the compensation system operate properly.
The UAW recognizes that the Specter-Leahy proposal
represents a compromise that reflects countless hours of
negotiations with the key stakeholders in this issue. We
commend Senator Specter and Senator Leahy for their
leadership and persistence in moving forward with efforts to
fashion this compromise. We also understand that some issues
are still under discussion as the Specter-Leahy proposal is
translated into legislative language that will be introduced
next week. We look forward to reviewing the final details of
the legislation when it is available.
It is easy for critics who want to maintain the current
tort system to point to flaws or shortcomings in the Specter-
Leahy proposal. But the issue before the Senate is not
whether this proposal is perfect or solves all problems.
Rather, the issue is whether the Specter-Leahy proposal is
better than the current tort system. The UAW believes that
the answer to this question is clearly yes. In our judgment,
the Specter-Leahy proposal will provide the victims of
asbestos-related diseases with speedier, more equitable and
more certain compensation than the current tort system. For
this reason, we urge you to support the Specter-Leahy
proposal when it is considered by the Senate.
Thank you for considering our views on this important
issue.
Sincerely,
Alan Reuther,
Legislative Director.
____
April 13, 2005.
Hon. Patrick J. Leahy,
Ranking Democratic Member, Senate Judiciary Committee, U.S.
Senate, Washington, DC.
Dear Senator Leahy: We are writing today to implore you not
to forget about our Nation's veterans as you continue your
important work of fixing the broken asbestos litigation
system. A lot has been written on this issue in the media
recently. Yesterday, Senator Arlen Specter said he expects to
formally introduce an asbestos victims compensation fund bill
later this week. Even before Specter's announcement, some had
raised questions about whether an asbestos victims
compensation fund is the best solution to the asbestos
crisis.
But the critics often overlook one crucial element: what is
best for asbestos victims?
Clearly, the most important outcome for victims, many of
whom are veterans dying as a result of asbestos exposure, is
a system that provides timely, fair and certain compensation.
We believe the compensation fund approach is the only
solution that will provide veterans suffering from asbestos-
related illnesses with fair and certain compensation.
Asbestos has taken a heavy toll on our Nation's veterans.
This dangerous substance was widely used by the military
during and after World War II, particularly in insulation
aboard U.S. Navy ships. Because of the long latency periods
of asbestos-related diseases, many veterans are still being
diagnosed today with life-threatening diseases that are the
result of exposure that occurred during military service
decades ago.
Veterans are in a unique situation in that we have
virtually no avenue for compensation under the current
system. Veterans with asbestos-related illnesses are
prevented by law from seeking compensation from the U.S.
government through the courts. Since most of the companies
that supplied the U.S. military with asbestos are long gone,
seeking relief from the suppliers is also a dead end.
Some have suggested that a medical criteria bill might
provide a better solution to the asbestos problem. A medical
criteria bill, however, will do little, if anything, to
provide certainty for victims. And because it leaves asbestos
claims in the courts, the medical criteria bill certainly
wouldn't benefit veterans who are sick from asbestos. Under a
medical criteria bill, the asbestos litigation system will
remain unchanged for veterans.
The Senate Judiciary Committee shouldn't let special
interests hijack veterans' only chance to receive the just
compensation they deserve.
We urge the Senate Judiciary Committee to approve the
asbestos victims compensation fund as quickly as possible and
bring this critically important legislation to the floor. Our
Nation's veterans deserve fair compensation--and nothing
less.
Sincerely,
Veterans of Foreign Wars of the United States
Military Order of the Purple Heart
Blinded Veterans Association
Veterans of the Vietnam War, Inc.
Women in Military Service for America
Non Commissioned Officers Association
National Association for Uniformed Services
Paralyzed Veterans of America
Jewish War Veterans of the United States
Fleet Reserve Association
The Retired Enlisted Association
National Association of State Directors of Veterans
Affairs
Military Officers Association of America
Marine Corps League
American Ex-Prisoners of War
National Association for Black Veterans, Inc.
Pearl Harbor Survivors Association.
____
Asbestos Study Group,
April 18, 2005.
Hon. Arlen Specter,
Chairman, Committee on the Judiciary, U.S. Senate, Hart
Senate Office Building, Washington, DC.
Dear Chairman Specter: The Asbestos Study Group, a group of
U.S. companies representing over 1.5 million workers, is
greatly appreciative of the Chairman's tireless efforts in
working with all interested Senators and private stakeholders
to reach a bipartisan consensus that can bring a much needed
solution to the Nation's asbestos litigation crisis. We are
very pleased and encouraged that the revised April 12th draft
has earned bipartisan support. We believe it brings us
considerably closer to a long-overdue resolution. While our
analysis of the new draft is continuing, we look forward to
working with the Chairman and other Senators to obtain final
passage of this critically important legislation as soon as
possible.
In the last two decades Congress has debated asbestos
litigation reform, the opportunity now before us represents
our best chance for success. Too much progress has been made
and too much is at stake for our Nation to miss this unique
opportunity to finally solve the asbestos problem.
Thank you for your continuing leadership and commitment to
this critically important issue.
Sincerely,
Barry B. Direnfeld,
Counsel, Asbestos Study Group.
____
[From the National Association of Manufacturers, April 14, 2005]
Engler Statement on Senator Specter's Latest Asbestos Bill Language
Draft
Washington, D.C.--National Association of Manufacturers
President John Engler today issued this statement in support
of Senator Arlen Specter's (R-PA) ongoing effort to end
America's asbestos litigation crisis:
``Manufacturers and the business community more broadly are
grateful to Chairman Specter for the energy and determination
he has shown in working to craft a legislative solution to
our Nation's economy-sapping problem with asbestos
litigation.
``The comprehensive Specter draft is now being reviewed by
the NAM and the members of the Asbestos Alliance. Since the
draft has already earned bipartisan support in the Senate, we
are hopeful it will engender similarly broad support in the
nationwide business community. When our review and those of
our Asbestos Alliance colleagues are complete, we hope a
solution will finally be at hand.
``There is much to like in the Chairman's draft, I'm
encouraged by the renewed commitment on both sides of the
aisle, and I am more hopeful about prospects for consensus
than I have been in weeks.
``We look forward to working with Chairman Specter and
other Senators toward final
[[Page S3941]]
passage of a bill that fairly resolves compensation problems
and ends the scandal of asbestos lawsuit abuse once and for
all.''
Mr. LEAHY. The bipartisan efforts of the last 2 years have been
productive. With the help of Judge Edward Becker, the primary
stakeholders have worked diligently and as a result we have reached a
compromise agreement on a national trust fund that will fairly
compensate victims of asbestos exposure. With the Chairman's
leadership, the disparate interests have reached consensus on many
issues such as overall funding of $140 billion and a streamlined
administrative process within the Department of Labor. Compensation
will be awarded and paid outside of the court system through a
simplified administrative claims process. There is no need to prove
liability or identify a particular defendant. There is, instead, a
claims process wherein all those who exhibit certain medical symptoms
and evidence of disease are compensated.
Last Congress I was disappointed by the bill reported by the
Judiciary Committee and by the partisan bill, S. 2290, that was
subsequently introduced as a substitute for that legislation. As
compared to those efforts, our bipartisan bill includes significant and
necessary improvements: Our bill provides higher compensation awards
for victims, with $1.1 million for victims of mesothelioma, $300,000 to
$1.1 million for lung cancer victims, $200,000 for victims of other
cancers caused by asbestos, $100,000 to $850,000 for asbestosis, and
$25,000 for what we call ``mixed disease cases.'' All likely asbestos
victims are eligible for medical monitoring, and unlike last year's
bills, this bill provides for medical screening for high-risk workers,
a relatively low-cost way to help make sure that those most likely to
be harmed are diagnosed.
Another essential improvement is the important provision ensuring
that victims' awards under the new trust fund will not be subject to
subrogation by insurance companies. This means that victims will not
have to give up any of their much-deserved compensation just because
they received workers' compensation or other insurance benefits in the
past. The initial funding of this trust is both more realistic and more
substantial than the partisan bill from the last Congress, providing
for almost $43 billion of the total $140 billion in the first five
years. And unlike the earlier bill, this bill ensures that the
contributors into the fund will be a matter of public record, as are
their obligations to the fund. Our bill also guarantees that court
cases that are well under way, and certainly those that have reached
judgment, will not be upset by the new trust fund. Similarly, last
year's bill would also have overridden all civil settlements that had
any remaining conduct outstanding. Our bipartisan asbestos bill
protects those settlements between named defendants and named victims,
and also protects settlements that provide for health insurance or
health care.
There are other improvements to the trust fund plan over last year's
effort. The previous legislation provided no incentive for the fund to
start processing claims. The Specter-Leahy-Feinstein bill creates an
incentive for the fund to begin processing claims quickly: If it is not
operational within 9 months, the sickest victims will be able to return
to the tort system. If the fund is not operational within 24 months,
all victims can return to the tort system.
In improving the way the asbestos legislation handles exigent
claims--those victims who are sickest and may not have long to live--
Senator Feinstein was instrumental in developing a creative solution. I
thank the senior Senator from California for her tireless efforts on
behalf of sick and dying asbestos victims. These victims should not be
forced to wait a year while this new trust fund gets organized and
ready to process claims. Under Senator Feinstein's approach, which we
adopted, exigent cases would receive an immediate lump-sum payment,
and, as I noted earlier, if the fund is not operational in nine months,
these sickest victims will be able to continue their cases in court.
As part of this compromise legislation, a particular class of lung
cancer sufferers, those who have had significant asbestos exposure but
no markings of asbestos-related disease, are not treated as compensable
victims for purposes of the asbestos trust fund. Because of the absence
of markings, it is not possible to establish asbestos as the cause of
their disease. If they develop markings, however, they will become
eligible for compensation from the asbestos trust fund. As with many
other administrative claims processes, this bill sets a limit on
attorneys' fee. In connection with this asbestos fund, the limit is set
at 5 percent on victims' awards within the fund. In addition, in order
to prevent victims of asbestos exposure from retooling their complaints
to circumvent the asbestos trust fund, the bill also imposes a higher
burden of proof within the tort system for plaintiffs seeking damages
resulting from exposure to silica.
The problems we are addressing are complex, this bill necessarily
reflects these complexities, and its drafting was not easy. The
compromises we had to make were difficult but necessary to ensure that
we created a trust fund that would provide adequate compensation to the
thousands of workers who have suffered, and continue to suffer, the
devastating health effect of asbestos. The history of asbestos use in
our country must come to an end. Under a provision authored by Senator
Murray that we have included, which was accepted during the last
Congress by the Judiciary Committee, this bill will ban its use. We
must halt the harm asbestos creates, and ameliorate the harm it has
already caused. The industrial and insurer participants in the trust
fund will gain the benefits of financial certainty and relief from the
stresses of litigation in the tort system, and the victims will have a
quicker and more efficient path to recovery.
I thank Chairman Specter, Senator Feinstein and others for working so
hard with me on this bipartisan legislation. I urge Senators to support
this compromise legislation to, at long last, help solve the asbestos
problem by providing fair compensation to victims of asbestos exposure.
I think of the staffs who have worked so diligently on this. On my
staff, I single out Ed Pagano, who was a lead counsel of the Democrats,
along with Kristine Lucius on our side. On Senator Specter's side, we
were helped so much by Seema Singh.
____________________