[Congressional Record Volume 151, Number 47 (Tuesday, April 19, 2005)]
[Senate]
[Pages S3905-S3941]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      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.

                          ____________________