[Congressional Record Volume 152, Number 14 (Wednesday, February 8, 2006)]
[Senate]
[Pages S786-S837]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2005

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to the consideration of S. 852, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (S. 852) to create a fair and efficient system to 
     resolve claims of victims of bodily injury caused by asbestos 
     exposure, and for other purposes.

  The Senate proceeded to consider the bill which had been reported 
from the Committee on the Judiciary, with amendments.
  [Strike the parts shown in black brackets and insert the parts shown 
in italic.]

                                 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.

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                           Subtitle D--Awards

Sec. 131. Amount.
Sec. 132. Medical monitoring.
Sec. 133. Payment.
[Sec. 134. Reduction in benefit payments for collateral sources.]
Sec. 134. Setoffs for collateral source compensation and prior awards.
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.
Sec. 206. Accounting treatment.

                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.
Sec. 226. National Mesothelioma Research and Treatment Program.

                       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. 502. Naturally occurring asbestos.

     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 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.
       (10) The asbestos found in Libby, Montana, tremolite 
     asbestos, has demonstrated an unusually high level of 
     toxicity, as compared to chrysotile asbestos. Diseases 
     contracted from this tremolite asbestos are unique and highly 
     progressive. These diseases typically manifest in a 
     characteristic pleural disease pattern, and often result in 
     severe impairment or death without radiographic interstitial 
     disease or typical chrysotile markers of radiographic 
     severity. According to the Agency for Toxic Substances and 
     Disease Registry previous studies by the National Institutes 
     of Occupational Safety and Health document significantly 
     increased rates of pulmonary abnormalities and disease 
     (asbestosis and lung cancer) among former workers.
       (11) In Libby, Montana, exposure pathways are and were not 
     limited to the workplace, rather, for decades there has been 
     an unprecedented 24 hour per day contamination of the 
     community's homes, playgrounds, gardens, and community air, 
     such that the entire community of Libby, Montana, has been 
     designated a Superfund site and is listed on the 
     Environmental Protection Agency's National Priorities List.
       (12) These multiple exposure pathways have caused severe 
     asbestos disease and death not only in former workers at the 
     mine and milling facilities, but also in the workers' spouses 
     and children, and in community members who had no direct 
     contact with the mine. According to the Environmental 
     Protection Agency, some potentially important alternative 
     pathways for past asbestos exposure include elevated 
     concentrations of asbestos in ambient air and recreational 
     exposures from children playing in piles of vermiculite. 
     Furthermore, the Environmental Protection Agency has 
     determined that current potential pathways of exposure 
     include vermiculite placed in walls and attics as thermal 
     insulation, vermiculite or ore used as road bed material, ore 
     used as ornamental landscaping, and vermiculite or 
     concentrated ore used as a soil and garden amendment or 
     aggregate in driveways.
       (13) The Environmental Protection Agency also concluded, 
     ``Asbestos contamination exists in a number of potential 
     source materials at multiple locations in and around the 
     residential and commercial area of Libby. . . While data are 
     not yet sufficient to perform reliable human-health risk 
     evaluations for all sources and all types of disturbance, it 
     is apparent that releases of fiber concentrations higher than 
     Occupational Safety and Health Administration standards may 
     occur in some cases . . . and that screening-level estimates 
     of lifetime excess cancer risk can exceed the upper-bound 
     risk range of 1E-04 usually used by the Environmental 
     Protection Agency for residents under a variety of exposure 
     scenarios. The occurrence of non-occupational asbestos-
     related disease that has been observed among Libby residents 
     is extremely unusual, and has not been associated with 
     asbestos mines elsewhere, suggesting either very high and 
     prolonged environmental exposures and/or increased toxicity 
     of this form of amphibole asbestos.''.
       (14) According to a November 2003 article from the Journal 
     Environmental Health Perspectives titled, Radiographic 
     Abnormalities and Exposure to Asbestos-Contaminated 
     Vermiculite in the Community of Libby, Montana, USA, Libby 
     residents who have evidence of ``no apparent exposure'', 
     i.e., did not work with asbestos, were not a family member of 
     a former worker, etc., had a greater rate of pleural 
     abnormalities (6.7 percent) than did those in control groups 
     or general populations found in other studies from other 
     states (which ranged from 0.2 percent to 4.6 percent). 
     ``Given the ubiquitous nature of vermiculite contamination in 
     Libby, along with historical evidence of elevated asbestos 
     concentrations in the air, it would be difficult to find 
     participants who could be characterized as unexposed.''.
       (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:

[[Page S788]]

       (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;]
       (I) asbestiform amphibole minerals;
       (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], in 1 or a 
     series of transactions, acquires all or substantially all of 
     the assets and properties (including, without limitation, 
     under section 363(b) or 1123(b)(4) of title 11, United States 
     Code), 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 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).]
       (3) Termination of the office.--The Office of Asbestos 
     Disease Compensation shall terminate effective not later than 
     12 months following certification by the Administrator that 
     the Fund has neither paid a claim in the previous 12 months 
     nor has debt obligations remaining to pay.
       (4) Expenses.--There shall be available from the Fund to 
     the Administrator such sums as are necessary for any and all 
     expenses associated with the Office of Asbestos Disease 
     Compensation and necessary to carry out the purposes of this 
     Act. Expenses covered should include--
       (A) management of the Fund;
       (B) personnel salaries and expenses, including retirement 
     and similar benefits;
       (C) the sums necessary for conducting the studies provided 
     for in section 121(e);
       (D) all administrative and legal expenses; and
       (E) any other sum that could be attributable to the Fund.
       (b) Appointment of Administrator.--
       (1) In general.--The Administrator of the Office of 
     Asbestos Disease Compensation

[[Page S789]]

     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] primary 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.]
       (2) Confidentiality of financial records.--
       (A) In general.--Any person may label any record submitted 
     under this section as a confidential commercial or financial 
     record for the purpose of requesting exemption from 
     disclosure under section 552(b)(4) of title 5, United States 
     Code.
       (B) Duties of Administrator and Chairman of the Asbestos 
     Insurers Commission.--The Administrator and Chairman of the 
     Asbestos Insurers Commission--
       (i) shall adopt procedures for--

       (I) handling submitted records marked confidential; and
       (II) protecting from disclosure records they determine to 
     be confidential commercial or financial information exempt 
     under section 552(b)(4) of title 5, United States Code; and

       (ii) may establish a pre-submission determination process 
     to protect from disclosure records on reserves and asbestos-
     related liabilities submitted by any defendant participant 
     that is exempt under section 552(b)(4) of title 5, United 
     States Code.
       (C) Review of complaints.--Nothing in this section shall 
     supersede or preempt the de novo review of complaints filed 
     under 552(b)(4) of title 5, United States Code.
       (3) Confidentiality of medical records.--Any claimant may 
     designate any record submitted under this section as a 
     confidential personnel or medical file 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.

     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 20 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] 4 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 S790]]

     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, and processing of claims through 
     the claims facility.
       (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) the claimant is living and provides a diagnosis of 
     mesothelioma meeting the requirements of section 121(d)(10); 
     [or]
       (B) the claimant is living and provides 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.; or
       (C) the claimant is the spouse or child of an eligible 
     exigent health claimant who--
       (i) was living when the claim was filed with the Fund, or 
     if before the implementation of interim regulations for the 
     filing of claims with the Fund, on the date of enactment of 
     this Act;
       (ii) has since died from an asbestos-related disease or 
     condition; and
       (iii) has not received compensation from the Fund for the 
     disease or condition for which the claim was filed.
       (3) Additional exigent health claims.--The Administrator 
     may, in final regulations

[[Page S791]]

     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 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.] The processing and payment of 
     claims shall be subject to regulations promulgated under this 
     Act.
       (5) Authorization for contracts with claims facilities.--
     The Administrator may enter into contracts with [claims 
     facilities] a claims facility 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.] exposure to asbestos was a 
     substantial contributing factor for the illness in question.
       [(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

[[Page S792]]

     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.--
       [(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.]
       (f) Stay of Claims; Return to Tort System.--
       (1) Stay of claims.--Notwithstanding any other provision of 
     this Act, any asbestos claim pending on the date of enactment 
     of this Act, other than a claim to which section 403(d)(2) 
     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 an exigent 
     health claim, as provided under subsection (c)(2), seeking a 
     judgment or order for monetary damages in any Federal or 
     State court before the date of the enactment of this Act, may 
     seek a settlement in accordance with this paragraph. Any 
     person with an exigent health claim, as provided under 
     subsection (c)(2), that arises after such date of enactment 
     may seek a settlement offer in accordance with this 
     paragraph.
       (ii) Filing.--

       (I) In general.--At any time before the Fund or claims 
     facility being certified as operational and paying exigent 
     health claims at a reasonable rate, any person with an 
     exigent health claim as described under clause (i) shall file 
     a notice of their intent to seek a settlement or shall file 
     their exigent health claim with the Administrator or claims 
     facility. Filing of an exigent health claim with the 
     Administrator or claims facility may serve as notice of 
     intent to seek a settlement.
       (II) Stay.--If the claimant fails to file under this 
     clause, the stay shall remain in effect except as provided 
     under subparagraph (B).

       (iii) Exigent health claim information.--To file an exigent 
     health claim, each individual shall provide all of the 
     following information:

       (I) The amount received or entitled to be received as a 
     result of all settlements that would qualify as a collateral 
     source under section 134, and 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 113 and 121.
       (III) A certification by the claimant that the information 
     provided is true and complete. The certification provided 
     under this subclause shall be subject to the same penalties 
     for false or misleading statements that would be applicable 
     with regard to information provided to the Administrator or 
     claims facility in support of a claim.
       (IV) For exigent health claims arising after the date of 
     enactment of this Act, the claimant shall identify each 
     defendant that would be an appropriate defendant in a civil 
     action seeking damages for the asbestos claim of the 
     claimant. The identification of a defendant under this 
     subclause shall be required to comply with rule 11 of the 
     Federal Rules of Civil Procedure.

       (iv) Timing.--A claimant who has filed a notice of their 
     intent to seek a settlement under clause (ii) shall within 60 
     days after filing notice provide to the Administrator or 
     claims facility, and all affected defendants the information 
     required under clause (iii). If a claimant has filed an 
     exigent health claim under clause (ii) the Administrator 
     shall provide all affected defendants the information 
     required under clause (iii).
       (v) Administrator or claims facility certification of 
     settlement.--

       (I) Determination.--Within 60 days after the information 
     under clause (iii) is provided, the Administrator or claims 
     facility shall determine whether or not the claim meets the 
     requirements of an exigent health claim.
       (II) Requirements met.--If the Administrator or claims 
     facility determines that the claim meets the requirements of 
     an exigent health claim, the Administrator or claims facility 
     shall immediately--

       (aa) issue and serve on all parties a certification of 
     eligibility of such claim;
       (bb) determine the value of such claim under the Fund by 
     subtracting from the amount in section 131 the total amount 
     of collateral source compensation received by the claimant; 
     and
       (cc) pay the award of compensation to the claimant under 
     clause (xi).

       (III) Requirements not met.--If the requirements under 
     clause (iii) are not met, the claimant shall have 30 days to 
     perfect the claim. If the claimant fails to perfect the claim 
     within that 30-day period or the Administrator or claims 
     facility determines that the claim does not meet the 
     requirements of an exigent health claim, the claim shall not 
     be eligible to proceed under this paragraph. A claimant may 
     appeal any decision issued by a claims facility with the 
     Administrator in accordance with section 114.

       (vi) Failure to certify.--If the Administrator or claims 
     facility is unable to process the claim and does not make a 
     determination regarding the certification of the claim as 
     required under clause (v), the Administrator or claims 
     facility shall within 10 days after the end of the 60-day 
     period referred to under clause (v)(I) provide notice of the 
     failure to act to the claimant and the defendants in the 
     pending Federal or State court action or the defendants 
     identified under clause (iii)(IV). If the Administrator or 
     claims facility fails to provide such notice within 10 days, 
     the claimant may elect to provide the notice to the affected 
     defendants to prompt a settlement offer.
       (vii) Failure to pay.--If the Administrator or claims 
     facility does not pay the award as required under clause 
     (xi), the Administrator shall refer the certified claim 
     within 10 days as a certified exigent health claim to the 
     defendants in the pending Federal and State court action or 
     to the potential defendants identified under clause (iii)(IV) 
     for exigent claims arising after the date of enactment of 
     this Act.
       (viii) Settlement offer.--Any defendant or defendants may, 
     within 30 days after receipt of such notice as provided under 
     clause (vi) or (vii), file and serve on all parties and the 
     Administrator a good faith settlement offer in an aggregate 
     amount not to exceed the total amount to which the claimant 
     may be entitled under section 131. If the aggregate amount 
     offered by all defendants exceeds the award determined by the 
     Administrator, all offers shall be deemed reduced pro-rata 
     until the aggregate amount equals the award amount. An 
     acceptance of such settlement offer in a pending court action 
     shall be subject to approval by the trial judge or authorized 
     magistrate in the court where the claim is pending. The court 
     shall approve any such accepted offer within 20 days after a 
     request, unless there is evidence of bad faith or fraud. No 
     court approval is necessary if the exigent health claim was 
     certified by the Administrator or claims facility under 
     clause (v).
       (ix) Opportunity to cure.--If the settlement offer is 
     rejected for being less than what the claimant was entitled 
     to under the Fund, the defendants shall have 10 business days 
     to make an amended offer. If the amended offer equals 100 
     percent of what the claimant would receive under the Fund, 
     the claimant shall accept such settlement offer in writing. 
     If the settlement offer is again rejected as less than what 
     the claimant is entitled to under the Fund or if defendants 
     fail to make an amended offer, the claimant shall be entitled 
     to recover 150 percent of what the claimant would receive 
     under the Fund before the stay being lifted under 
     subparagraph (B). If the amount of the amended settlement 
     offer made by the Administrator, claims facility, or 
     defendants equals 150 percent of what the claimant would 
     receive under the Fund, the claimant shall accept such 
     settlement in writing.
       (x) Acceptance or rejection.--Within 20 days after receipt 
     of the settlement offer, or the amended settlement offer, the 
     claimant shall either accept or reject such offer in writing. 
     If the amount of the settlement offer made by the 
     Administrator, claims facility, or defendants equals 100 
     percent of what the claimant would receive under the Fund, 
     the claimant shall accept such settlement in writing.
       (xi) Payment schedule.--

       (I) Mesothelioma claimants.--For mesothelioma claimants--

       (aa) an initial payment of 50 percent shall be made within 
     30 days after the date the settlement is accepted and the 
     second and final payment shall be made 6 months after date 
     the settlement is accepted; or
       (bb) if the Administrator determines that the payment 
     schedule would impose a severe financial hardship on the 
     Fund, or if the court determines that the settlement offer 
     would impose a severe financial hardship on the defendant, 
     the payments may be extended 50 percent in 6 months and 50 
     percent 11 months after the date the settlement offer is 
     accepted.

       (II) Other exigent claimants.--For other exigent claimants, 
     as defined under section 106(c)(2)(B and (C)--

       (aa) the initial payment of 50 percent shall be made within 
     6 months after the date the settlement is accepted and the 
     second and final payment shall be made 12 months after date 
     the settlement is accepted; or
       (bb) if the Administrator determines that the payment 
     schedule would impose a severe financial hardship on the 
     Fund, or if the court determines that the settlement offer 
     would impose a severe financial hardship on the defendants, 
     the payments may be extended 50 percent within 1 year after 
     the date the settlement offer is accepted and 50 percent in 2 
     years after date the settlement offer is accepted.

       (III) Release.--Once a claimant has received final payment 
     of the accepted settlement offer the claimant shall release 
     any outstanding asbestos claims.

       (xii) Recovery of costs.--

       (I) In general.--Any defendant whose settlement offer is 
     accepted may recover the cost of such settlement by deducting 
     from the defendant's next and subsequent contributions to the 
     Fund the full amount of the payment made by

[[Page S793]]

     such defendant to the exigent health claimant, unless the 
     Administrator finds, on the basis of clear and convincing 
     evidence, that the defendant's offer is not in good faith. 
     Any such payment shall be considered a payment to the Fund 
     for purposes of section 404(e)(1) and in response to the 
     payment obligations imposed on defendant and insurer 
     participants in title II.
       (II) Reimbursement.--Notwithstanding subclause (I), if the 
     deductions from the defendant participant's next and 
     subsequent contributions to the Fund do not fully recover the 
     cost of such payments on or before its third annual 
     contribution to the Fund, the Fund shall reimburse such 
     defendant for such remaining cost not later than 6 months 
     after the date of the third scheduled Fund contribution.

       (xiii) Failure to make offer.--If defendants fail to make a 
     settlement offer within the 30-day period described under 
     clause (viii) or make amended offers within the 10 business 
     day cure period described under clause (ix), the claimant 
     shall be entitled to recover 150 percent of what the claimant 
     would receive under the Fund before the stay being lifted 
     under subparagraph (B).
       (xiv) Failure to pay.--If defendants fail to pay an 
     accepted settlement offer within the payment schedule under 
     clause (xi), the claimant shall be entitled to recover 150 
     percent of what the claimant would receive under the Fund 
     before the stay being lifted under subparagraph (B). If the 
     stay is lifted under subparagraph (B) the claimant may seek a 
     judgment or order for monetary damages from the court where 
     the case is currently pending or the appropriate Federal or 
     State court for claims arising after the date of enactment of 
     this Act.
       (B) Continuation of exigent health claims.--If 9 months 
     after an exigent health claim has been filed under 
     subparagraph (A)(ii), a claimant has not received a 
     settlement under subparagraph (A)(xi) and the Administrator 
     has not certified to Congress that the Fund or claims 
     facility is operational and paying exigent health claims at a 
     reasonable rate, such exigent health claimant, may seek a 
     judgment or order for monetary damages from the court where 
     the case is currently pending or the appropriate Federal or 
     State court for claims arising after the date of enactment of 
     this Act.
       (C) Credit of claim and effect of operational fund.--
       (i) Collateral source.--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) Recovery of costs.--Any defendant may recover the cost 
     of any claim continued in court for up to the amount the 
     claimant would receive under the Fund by deducting from the 
     defendant's next and subsequent contributions to the Fund for 
     the full amount of the payment made by such defendant to the 
     exigent health claimant.
       (3) Pursual of non-exigent 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, 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 occurred.
       (B) Defendants not found.--If any defendant cannot be found 
     in the State described under subparagraph (A) (i) or (ii), 
     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 law relating to venue 
     requirements within that State which are more restrictive.
       (E) Credit of claim and effect of operational or 
     nonoperational fund.--
       (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 certification.--Operational certification 
     shall be a filing in the Federal Register confirming that the 
     Fund is operational and paying all valid asbestos claims at a 
     reasonable rate.
       (iii) Operational preconditions.--

       (I) The Administrator may not issue a operational 
     certification until--

       (aa) 60 days after the funding allocation information 
     required under section 221(e) has been published in the 
     Federal Register; and
       (bb) insurers subject to section 212(a)(3) submit their 
     names and information to the Administrator within 30 days 
     after the date of enactment of this Act and 60 days after the 
     Administrator publishes such information in the Federal 
     Register.
       (iv) Operational fund.--If the Administrator issues an 
     operational certification and notifies Congress that the Fund 
     has become operational and paying all valid asbestos claims 
     at a reasonable rate, any nonexigent asbestos claim in a 
     civil action in Federal or State court that is not 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 shall 
     be deemed a reinstated claim against the Fund and the civil 
     action before the Federal or State court shall be null and 
     void.
       (v) Nonoperational fund.--Notwithstanding any other 
     provision of this Act, if the Administrator subsequently 
     issues a nonoperational certification and notifies Congress 
     that the Fund is unable to become operational and pay 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.
       (4) Effect of multiple injuries.--
       (A) In general.--A claimant who receives an award for an 
     eligible disease or condition shall not be precluded from 
     submitting claims for and receiving additional awards under 
     this title for any higher disease level for which the 
     claimant becomes eligible, subject to appropriate setoffs as 
     provided under section 134.
       (B) Libby, montana claims.--
       (i) In general.--Notwithstanding subparagraph (A), if a 
     Libby, Montana claimant worsens in condition, as measured by 
     pulmonary function tests, such that a claimant qualifies for 
     a higher nonmalignant level, the claimant shall be eligible 
     for an additional award, at the appropriate level, offset by 
     any award previously paid under this Act, such that a 
     claimant would qualify for Level IV if the claimant satisfies 
     section 121(f)(8), and would qualify for Level V if the 
     claimant provides--

       (I) a diagnosis of bilateral asbestos related nonmalignant 
     disease;
       (II) evidence of TLC or FVC less than 60 percent; and
       (III) supporting medical documentation establishing 
     asbestos exposure as a substantial contributing factor in 
     causing the pulmonary condition in question, and excluding 
     more likely causes of that pulmonary condition.

       (ii) Subsequent malignant disease.--If a Libby, Montana, 
     claimant develops malignant disease, such that the claimant 
     qualifies for Level VI, VII, VIII, or IX, subparagraph (A) 
     shall apply.
       (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, If a claim is not filed with 
     the Office within the limitations period specified in this 
     subsection for that category of claim, such claim shall be 
     extinguished, and any recovery thereon shall be prohibited.
       (2) Initial claims.--An initial claim for an award under 
     this Act shall be filed within 5 years after the date on 
     which the claimant first received a medical diagnosis and 
     medical test results sufficient to satisfy the criteria for 
     the disease level for which the claimant is seeking 
     compensation.
       (3) Claims for additional awards.--
       (A) Non-malignant diseases.--If a claimant has previously 
     filed a timely initial claim for compensation for any non-
     malignant disease level, there shall be no limitations period 
     applicable to the filing of claims by the claimant for

[[Page S794]]

     additional awards for higher disease levels based on the 
     progression of the non-malignant disease.
       (B) Malignant diseases.--Regardless of whether the claimant 
     has previously filed a claim for compensation for any other 
     disease level, a claim for compensation for a malignant 
     disease level shall be filed within 5 years after the 
     claimant first obtained a medical diagnosis and medical test 
     results sufficient to satisfy the criteria for the malignant 
     disease level for which the claimant is seeking compensation.
       (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)] (4) 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 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

[[Page S795]]

     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 claims process. 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.]
       (1) In General.--The Administrator shall prescribe 
     procedures to randomly evaluate the x-rays submitted in 
     support of a statistically significant number of claims by 
     independent certified B-readers, the cost of which shall be 
     paid by the Fund.
       (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.]
       (3) Consent.--
       (A) In general.--The Administrator may require the 
     performance of blood tests or any other appropriate medical 
     test, where claimants assert they are nonsmokers or ex-
     smokers for purposes of an award under Malignant Level VI, 
     VII, or VIII, or as an exceptional medical claim, the cost of 
     which shall be paid by the Fund.
       (B) Serum cotinine screening.--The Administrator shall 
     require the performance of serum cotinine screening on all 
     claimants who assert they are nonsmokers or ex-smokers for 
     purposes of an award under Malignant Level VI, VII, or VIII, 
     or as an exceptional medical claim, the cost of which shall 
     be paid by the Fund.
       (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).
       (d) Pulmonary Function Testing.--The Administrator shall 
     develop auditing procedures for pulmonary function test 
     results submitted as part of a claim, to ensure that such 
     tests are conducted in accordance with American Thoracic 
     Society Criteria, as defined under section 121(a)(13).

                      Subtitle C--Medical Criteria

     SEC. 121. MEDICAL CRITERIA REQUIREMENTS.

       (a) Definitions.--In this section, the following 
     definitions shall apply:
       (1) Asbestosis determined by pathology.--The term 
     ``asbestosis determined by pathology'' means indications of 
     asbestosis based on the pathological grading system for 
     asbestosis described in the Special Issues of the Archives of 
     Pathology and Laboratory Medicine, ``Asbestos-associated 
     Diseases'', Vol. 106, No. 11, App. 3 (October 8, 1982).
       (2) Bilateral asbestos-related nonmalignant disease.--The 
     term ``bilateral asbestos-related nonmalignant disease'' 
     means a diagnosis of bilateral asbestos-related nonmalignant 
     disease based on--
       (A) an x-ray reading of 1/0 or higher based on the ILO 
     grade scale;
       (B) bilateral pleural plaques;
       (C) bilateral pleural thickening; or
       (D) bilateral pleural calcification.
       (3) Bilateral pleural disease of b2.--The term ``bilateral 
     pleural disease of B2'' means a chest wall pleural thickening 
     or plaque with a maximum width of at least 5 millimeters and 
     a total length of at least \1/4\ of the projection of the 
     lateral chest wall.
       (4) Certified b-reader.--The term ``certified B-reader'' 
     means an individual who is certified by the National 
     Institute of Occupational Safety and Health and whose 
     certification by the National Institute of Occupational 
     Safety and Health is up to date.
       (5) Diffuse pleural thickening.--The term ``diffuse pleural 
     thickening'' means blunting of either costophrenic angle and 
     bilateral pleural plaque or bilateral pleural thickening.
       (6) DLCO.--The term ``DLCO'' means the single-breath 
     diffusing capacity of the lung (carbon monoxide) technique 
     used to measure the volume of carbon monoxide transferred 
     from the alveoli to blood in the pulmonary capillaries for 
     each unit of driving pressure of the carbon monoxide.
       (7) FEV1.--The term ``FEV1'' means forced expiratory volume 
     (1 second), which is the maximal volume of air expelled in 1 
     second during performance of the spirometric test for forced 
     vital capacity.
       (8) FVC.--The term ``FVC'' means forced vital capacity, 
     which is the maximal volume of air expired with a maximally 
     forced effort from a position of maximal inspiration.
       (9) ILO grade.--The term ``ILO grade'' means the 
     radiological ratings for the presence of lung changes as 
     determined from a chest x-ray, all as established from time 
     to time by the International Labor Organization.
       (10) Lower limits of normal.--The term ``lower limits of 
     normal'' means the fifth percentile of healthy populations as 
     defined in the American Thoracic Society statement on lung 
     function testing (Amer. Rev. Resp. Disease 1991, 144:1202-
     1218) and any future revision of the same statement.
       (11) Nonsmoker.--The term ``nonsmoker'' means 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

[[Page S796]]

     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)](g) for review by a Physicians Panel.
       (4) Waiver for workers and residents of libby, montana.--
     Because of the unique nature of the asbestos exposure related 
     to the vermiculite mining and milling operations in Libby, 
     Montana, the Administrator shall waive the exposure 
     requirements under this subtitle for individuals who worked 
     at the vermiculite mining and milling facility in Libby, 
     Montana, or lived or worked within a 20-mile radius of Libby, 
     Montana, for at least 12 consecutive months before December 
     31, 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.
       (C) Criteria requirements.--Nothing in subparagraphs (A) or 
     (B) shall negate the exposure or medical criteria 
     requirements in section 121, for the purpose of receiving 
     compensation from the Fund.
       (6) Penalty for false statement.--Any false information 
     submitted under this subsection shall be subject to section 
     1348 of

[[Page S797]]

     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, such as a written 
     opinion by the examining or diagnosing physician, according 
     to the diagnostic guidelines in section 121(b)(2), 
     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, such as a written 
     opinion by the examining or diagnosing physician, according 
     to the diagnostic guidelines in section 121(b)(2)--
       (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, such as a written 
     opinion by the examining or diagnosing physician, according 
     to the diagnostic guidelines in section 121(b)(2)--
       (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, such as a written 
     opinion by the examining or diagnosing physician, according 
     to the diagnostic guidelines in section 121(b)(2)--
       (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, such as a written 
     opinion by the examining or diagnosing physician, according 
     to the diagnostic guidelines in section 121(b)(2), 
     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 by 
     chest x-ray or such diagnostic methodology supported by the 
     findings of the Institute of Medicine under subsection (f);
       (iii) evidence of 12 or more weighted years of substantial 
     occupational exposure to asbestos; and
       (iv) supporting medical documentation, such as a written 
     opinion by the examining or diagnosing physician, according 
     to the diagnostic guidelines in section 121(b)(2), 
     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--
       (i) of a primary lung cancer disease on the basis of 
     findings by a board certified pathologist;
       (ii)(I) of--

       (aa) asbestosis based on a chest x-ray of at least 1/0 on 
     the ILO scale and showing small irregular opacities of shape 
     or size, either ss, st, or tt, and present in both lower lung 
     zones; and
       (bb) 10 or more weighted years of substantial occupational 
     exposure to asbestos;

       (II) of--

       (aa) asbestosis based on a chest x-ray of at least 1/1 on 
     the ILO scale and showing small irregular opacities of shape 
     or size, either ss, st, or tt, and present in both lower lung 
     zones; and
       (bb) 8 or more weighted years of substantial occupational 
     exposure to asbestos;

       (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 board certified radiologist and confirmed by 
     a board certified radiologist; and
       (iii) supporting medical documentation, such as a written 
     opinion by the examining or diagnosing physician, according 
     to the diagnostic guidelines in section 121(b)(2), 
     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;

[[Page S798]]

       (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)] subsection (g) 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] to determine whether there is a 
     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).] in causing the other cancerous disease 
     in question under subsection (d)(6). If asbestos is not a 
     substantial contributing factor to the particular cancerous 
     disease under subsection (d)(6), subsection (d)(6) shall not 
     apply with respect to that disease and no claim may be filed 
     with, or award paid from, the Fund with respect to that 
     disease under malignant Level VI.
       (f) Institute of Medicine Study on CT Scans.--
       (1) In general.--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 use of CT scans as a diagnostic 
     tool for bilateral pleural plaques, bilateral pleural 
     thickening, or bilateral pleural calcification.
       (2) Findings.--The Institute of Medicine shall make and 
     issue findings based on the study required under paragraph 
     (1) on whether--
       (A) CT scans are generally accepted in the medical 
     profession to detect bilateral pleural plaques, bilateral 
     pleural thickening, or bilateral pleural calcification; and
       (B) professional standards of practice exist to allow for 
     the Administrator's reasonable reliance on such as evidence 
     of bilateral pleural plaques, bilateral pleural thickening, 
     or bilateral pleural calcification under the Fund.
       (3) Report.--The Institute of Medicine shall issue a report 
     on the findings required under paragraph (2), which shall be 
     transmitted to Congress, the Administrator, the Advisory 
     Committee on Asbestos Disease Compensation or the Medical 
     Advisory Committee, and the Physicians Panels.
       (4) Report binding on the administrator.--The Institute of 
     Medicine report required under paragraph (3) shall be binding 
     on the Administrator and the Physicians Panels for purposes 
     of determining reliable and acceptable evidence that may be 
     submitted for a Level VII claim under subsection (d)(7).
       [(f)](g) 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.
       (C) Evaluation of claims.--For purposes of evaluating 
     exceptional medical claims from Libby, Montana, a claimant 
     shall be deemed to have a comparable asbestos-related 
     condition to an asbestos disease category Level IV, and shall 
     be deemed to qualify for compensation at Level IV, if the 
     claimant provides--
       (i) a diagnosis of bilateral asbestos related nonmalignant 
     disease;
       (ii) evidence of TLC or FVC less than 80 percent; and
       (iii) supporting medical documentation establishing 
     asbestos exposure as a substantial contributing factor in 
     causing the pulmonary condition in question, and excluding 
     more likely causes of that pulmonary condition.
       (9) Study of vermiculite processing facilities.--
       (A) In general.--As part of the ongoing National Asbestos 
     Exposure Review (in this section referred to as ``NAER'') 
     being conducted by the Agency for Toxic Substances and 
     Disease Registry (in this section referred to as ``ATSDR'') 
     of facilities that received vermiculite ore from Libby, 
     Montana, the ATSDR shall conduct a study of all Phase 1 sites 
     where--
       (i) the Environmental Protection Agency has mandated 
     further action at the site on the basis of current 
     contamination; or
       (ii) the site was an exfoliation facility that processed 
     roughly 100,000 tons or more of vermiculite from the Libby 
     mine.
       (B) Study by ATSDR.--The study by the ATSDR shall evaluate 
     the facilities identified under subparagraph (A) and 
     compare--
       (i) the levels of asbestos emissions from such facilities;
       (ii) the resulting asbestos contamination in areas 
     surrounding such facilities;
       (iii) the levels of exposure to residents living in the 
     vicinity of such facilities;
       (iv) the risks of asbestos-related disease to the residents 
     living in the vicinity of such facilities; and
       (v) the risk of asbestos-related mortality to residents 
     living in the vicinity of such facilities,
     to the emissions, contamination, exposures, and risks 
     resulting from the mining of vermiculite ore in Libby, 
     Montana.
       (C) Results of study.--The results of the study required 
     under this paragraph shall be transmitted to the 
     Administrator. If the ATSDR finds as a result of such study 
     that, for any particular facility, the levels of emissions 
     from, the resulting contamination caused by, the levels of 
     exposure to nearby residents from, and the risks of asbestos-
     related disease and asbestos-related mortality to nearby 
     residents from such facility are substantially equivalent to 
     those of Libby, Montana, then the Administrator shall treat 
     claims from residents surrounding such facilities the same as 
     claims of residents of Libby, Montana, and such residents 
     shall have all the rights of residents of Libby, Montana, 
     under this Act. As part of the results of its study, the 
     ATSDR shall prescribe for any such facility the relevant 
     geographic and temporal criteria under which the exposures 
     and risks to the surrounding residents are substantially 
     equivalent

[[Page S799]]

     to those of residents of Libby, Montana, and therefore 
     qualify for treatment under this paragraph.
       (10) Naturally occurring asbestos.--A claimant who has been 
     exposed to naturally occurring asbestos may file an 
     exceptional medical claim with the Fund.
       (h) Guidelines for CT Scans.--The Administrator shall 
     commission the American College of Radiology to develop, in 
     consultation with the American Thoracic Society, American 
     College of Chest Physicians, and Institute of Medicine, 
     guidelines and a methodology for the use of CT scans as a 
     diagnostic tool for bilateral pleural plaques, bilateral 
     pleural thickening, or bilateral pleural calcification under 
     the Fund. After development, such guidelines and methodology 
     shall be used for diagnostic purposes under the Fund.

                           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:


 
 
 
           LevScheduled Condition or    Scheduled Value
               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 Asbestosis     $850,000
         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.
       (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

[[Page S800]]

     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] Lump-sum payments.--
       (A) In general.--The Administrator shall develop guidelines 
     to provide for [accelerated payments] 1 lump-sum payment 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.]
       (B) Timing of payments.--Lump-sum payments shall be made 
     within the shorter of--
       (i) not later than 30 days after the date the claim is 
     approved by the Administrator; or
       (ii) not later than 6 months after the date the claim is 
     filed.
       (C) Timing of payments to be adjusted with respect to 
     solvency of the fund.--If the Administrator determines that 
     solvency of the Fund would be severely harmed by the timing 
     of the payments required under subparagraph (B), the time for 
     such payments may be extended to the shorter of--
       (i) not later than 6 months after the date the claim is 
     approved by the Administrator; or
       (ii) not later than 11 months after the date the claim is 
     filed.
       (5) Expedited payments.--
       (A) In general.--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.] health claims as described under 
     section 106(c)(2)(B) and (C).
       (B) Timing of payments.--Total payments shall be made 
     within the shorter of--
       (i) not later than 6 months after the date the claim is 
     approved by the Administrator; or
       (ii) not later than 1 year after the date the claim is 
     filed.
       (C) Timing of payments to be adjusted with respect to 
     solvency of the fund.-- If the Administrator determines that 
     solvency of the Fund would be severely harmed by the timing 
     of the payments required under subparagraph (B), the time for 
     such payments may be extended to the shorter of--
       (i) not later than 1 year after the date the claim is 
     approved by the Administrator; or
       (ii) not later than 2 years after the date the claim is 
     filed.
       (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.
       (f) Effect of Payment.--The full payment of an asbestos 
     claim under this section shall be in full satisfaction of 
     such claim and shall be deemed to operate as a release to 
     such claim. No claimant with an asbestos claim that has been 
     fully paid under this section may proceed in the tort system 
     with respect to such claim.

     SEC. 134. [REDUCTION IN BENEFIT PAYMENTS FOR COLLATERAL 
                   SOURCES.] SETOFFS FOR COLLATERAL SOURCE 
                   COMPENSATION AND PRIOR AWARDS.

       (a) In General.--The amount of an award otherwise available 
     to an asbestos claimant under this title shall be reduced by 
     the amount of any collateral source compensation and by any 
     amounts paid or to be paid to the claimant for a prior award 
     under this Act.
       (b) Exclusions.--
       (1) Collateral source compensation.--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.
       (2) Prior award payments.--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 claims 
     for a malignant disease (Levels VI through IX), unless the 
     malignancy was diagnosed before the date on which the 
     nonmalignancy claim was compensated.

     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

[[Page S801]]

     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)](d). 
     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.
       (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]
     such confirmation is required to avoid the liquidation or the 
     need for further financial reorganization of that entity; 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

[[Page S802]]

     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.--
       (i) In general.--Each debtor included in Subtier 1 shall 
     pay on an annual basis 1.67024 percent of the debtor's 2002 
     revenues.
       (ii) Exception to payment percentage.--Notwithstanding 
     clause (i), a debtor in Subtier 1 shall pay, on an annual 
     basis, $500,000 if--

       (I) such debtor, including its direct or indirect majority-
     owned subsidiaries, has less than $10,000,000 in prior 
     asbestos expenditures;
       (II) at least 95 percent of such debtors revenues derive 
     from the provision of engineering and construction services; 
     and
       (III) such debtor, including its direct or indirect 
     majority-owned subsidiaries, never manufactured, sold, or 
     distributed asbestos-containing products in the stream of 
     commerce.

       (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 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)](c), 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, other than class action trusts under paragraph 
     (6), 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 unencumbered 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) Calculation of unencumbered assets.--Unencumbered 
     assets shall be calculated as the Subtier 3 person's total 
     assets, excluding insurance-related assets, jointly held, in 
     trust or otherwise, with a defendant participant, less--
       (A) all allowable administrative expenses;
       (B) allowable priority claims under section 507 of title 
     11, United States Code; and
       (C) allowable secured claims.
       [(5)](6) 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] 60 days 
     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

[[Page S803]]

     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.
       (3) Other payment for certain persons and affiliated 
     groups.--
       (A) In general.--Notwithstanding any other provision of 
     this subsection, and if an adjustment authorized by this 
     subsection does not impair the overall solvency of the Fund, 
     any person or affiliated group within Tier VI whose required 
     subtier payment in any given year would exceed such person's 
     or group's average annual expenditure on settlements, and 
     judgments of asbestos disease-related claims over the 8 years 
     before the date of enactment of this Act shall make the 
     payment required of the immediately lower subtier or, if the 
     person's or group's average annual expenditures on 
     settlements and judgments over the 8 years before the date of 
     enactment of this Act is less than $100,000, shall not be 
     required to make a payment under this Act.
       (B) No further adjustment.--Any person or affiliated group 
     that receives an adjustment under this paragraph shall not be 
     eligible to receive any further adjustment under section 
     204(d).
       (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)] subsections (d) and (m), 
     equals the maximum aggregate payment obligation of section 
     202(a)(2).
       (b) Small Business Exemption.--Notwithstanding any other 
     provision of this subtitle, a person or affiliated group that 
     is a small business concern (as defined under section 3 of 
     the Small Business Act (15 U.S.C. 632)), on December 31, 
     2002, is exempt from any payment requirement under this 
     subtitle and shall not be included in the subtier allocations 
     under section 203.
       (c) Procedures.--The Administrator shall prescribe 
     procedures on how amounts payable under this subtitle are to 
     be paid, including, to the extent the Administrator 
     determines appropriate, procedures relating to payment in 
     installments.
       (d) Adjustments.--
       (1) In general.--Under expedited procedures established by 
     the Administrator, a defendant participant may seek 
     adjustment of the amount of its payment obligation based on 
     severe financial hardship or demonstrated inequity. The 
     Administrator may determine whether to grant an adjustment 
     and the size of any such adjustment, in accordance with this 
     subsection. A defendant participant has a right to obtain a 
     rehearing of the Administrator's determination under this 
     subsection under the procedures prescribed in subsection 
     (i)(10). The Administrator may adjust a defendant 
     participant's payment obligations under this subsection, 
     either by forgiving the relevant portion of the otherwise 
     applicable payment obligation or by providing relevant 
     rebates from the defendant hardship and inequity adjustment 
     account created under subsection (j) after payment of the 
     otherwise applicable payment obligation, at the discretion of 
     the Administrator.
       (2) Financial hardship adjustments.--
       (A) In general.--A defendant participant may apply for an 
     adjustment based on financial hardship at any time during the 
     period in which a payment obligation to the Fund remains 
     outstanding and may qualify for such adjustment by 
     demonstrating that the amount of its payment obligation under 
     the statutory allocation would constitute a severe financial 
     hardship.
       (B) Term.--Subject to the annual availability of funds in 
     the defendant hardship and inequity adjustment account 
     established under subsection (j), a financial hardship 
     adjustment under this subsection shall have a term of 3 
     years.
       (C) Renewal.--After an initial hardship adjustment is 
     granted under this paragraph, a defendant participant may 
     renew its hardship adjustment by demonstrating that it 
     remains justified.

[[Page S804]]

       (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 that--
       (A) 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)[.]; or
       (B) the Administrator determines that the $300,000,000 is 
     insufficient and additional adjustments as provided under 
     paragraph (5) are needed to address situations in which a 
     defendant participant would otherwise be rendered insolvent 
     by its payment obligations without such adjustment.
       (5) Bankruptcy relief.--
       (A) In general.--Any defendant participant may apply for an 
     adjustment under this paragraph at any time during the period 
     in which a payment obligation to the Fund remains outstanding 
     and may qualify for such adjustment by demonstrating, to a 
     reasonable degree of certainty, evidence that the amount of 
     its payment obligation would render the defendant participant 
     insolvent, as defined under section 101 of title 11, United 
     States Code, and unable to pay its debts as they become due.
       (B) Information required.--Any defendant participant 
     seeking an adjustment or renewal of an adjustment under this 
     paragraph shall provide the Administrator with the 
     information required under section 521(1) of title 11 of the 
     United States Code.
       (C) Limitation.--Any adjustment granted by the 
     Administrator under subparagraph (A) shall be limited to the 
     extent reasonably necessary to prevent insolvency of a 
     defendant participant.
       (D) Term.--To the extent the Administrator grants any 
     relief under this paragraph, such adjustments shall have a 
     term of 1 year. An adjustment may be renewed or modified on 
     an annual basis upon the defendant participant demonstrating 
     that the adjustment or modification remains justified under 
     this paragraph.
       (E) Reinstatement.--During the funding period prescribed 
     under subparagraph (A), the Administrator shall annually 
     determine whether there has been a material change in the 
     financial condition of any defendant participant granted an 
     adjustment under this paragraph 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 adjustment 
     term.
       [(5)](6) Advisory panels.--
       (A) Appointment.--The Administrator shall appoint a 
     Financial Hardship Adjustment Panel and an Inequity 
     Adjustment Panel to advise the Administrator in carrying out 
     this subsection.
       (B) Membership.--The membership of the panels appointed 
     under subparagraph (A) may overlap.
       (C) Coordination.--The panels appointed under subparagraph 
     (A) shall coordinate their deliberations and advice.
       (e) Limitation on Liability.--The liability of each 
     defendant participant to pay to the Fund shall be limited to 
     the payment obligations under this Act, and, except as 
     provided in subsection (f) and section 203(b)(2)(D), no 
     defendant participant shall have any liability for the 
     payment obligations of any other defendant participant.
       (f) Consolidation of Payments.--
       (1) In general.--For purposes of determining the payment 
     levels of defendant participants, any affiliated group 
     including 1 or more defendant participants may irrevocably 
     elect, as part of the submissions to be made under paragraphs 
     (1) and (3) of subsection (i), to report on a consolidated 
     basis all of the information necessary to determine the 
     payment level under this subtitle and pay to the Fund on a 
     consolidated basis.
       (2) Election.--If an affiliated group elects consolidation 
     as provided in this subsection--
       (A) for purposes of this Act other than this subsection, 
     the affiliated group shall be treated as if it were a single 
     participant, including with respect to the assessment of a 
     single annual payment under this subtitle for the entire 
     affiliated group;
       (B) the ultimate parent of the affiliated group shall 
     prepare and submit each submission to be made under 
     subsection (i) on behalf of the entire affiliated group and 
     shall be solely liable, as between the Administrator and the 
     affiliated group only, for the payment of the annual amount 
     due from the affiliated group under this subtitle, except 
     that, if the ultimate parent does not pay when due any 
     payment obligation for the affiliated group, the 
     Administrator shall have the right to seek payment of all or 
     any portion of the entire amount due (as well as any other 
     amount for which the affiliated group may be liable under 
     sections 223 and 224) from any member of the affiliated 
     group;
       (C) all members of the affiliated group shall be identified 
     in the submission under subsection (i) and shall certify 
     compliance with this subsection and the Administrator's 
     regulations implementing this subsection; and
       (D) the obligations under this subtitle shall not change 
     even if, after the date of enactment of this Act, the 
     beneficial ownership interest between any members of the 
     affiliated group shall change.
       (3) Cause of action.--Notwithstanding section 221(e), this 
     Act shall not preclude actions among persons within an 
     affiliated group with respect to the payment obligations 
     under this Act.
       (g) Determination of Prior Asbestos Expenditures.--
       (1) In general.--For purposes of determining a defendant 
     participant's prior asbestos expenditures, the Administrator 
     shall prescribe such rules as may be necessary or appropriate 
     to assure that payments by indemnitors before December 31, 
     2002, shall be counted as part of the indemnitor's prior 
     asbestos expenditures, rather than the indemnitee's prior 
     asbestos expenditures, in accordance with this subsection.

[[Page S805]]

       (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)] (as 
     modified by subsections (b), (d), (f), (g), and (m) of this 
     section) fail in any year to raise at least $3,000,000,000 
     [net of any adjustments under subsection (d)], after 
     applicable reductions or adjustments have been taken 
     according to subsections (d) and (m), 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)], after applicable 
     reductions or adjustments have been taken according to 
     subsections (d) and (m), the Administrator [may] shall unless 
     the Administrator implements a funding holiday under section 
     205(b), 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] 90 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[.]; and
       (v) a signature page personally verifying the truth of the 
     statements and estimates described under this subparagraph, 
     as required under section 404 of the Sarbanes-Oxley Act of 
     2002 (15 U.S.C. 7201 et seq.).
       (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--
       (i) a statement of the debtor's 2002 revenues, determined 
     in accordance with section 203(a)(2)[,] ;
       (ii) for those debtors subject to the payment requirement 
     of section 203(b)(2)(B)(ii), a statement whether its prior 
     asbestos expenditures do not exceed $10,000,000, and a 
     description of its business operations sufficient to show the 
     requirements of that section are met; and
       (iii) 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[.]; and
       (G) a signature page personally verifying the truth of the 
     statements and estimates described under this paragraph, as 
     required under section 404 of the Sarbanes-Oxley Act of 2002 
     (15 U.S.C. 7201 et seq.).
       (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

[[Page S806]]

     any previous payment made by the participant under this 
     subsection, the Administrator shall credit any excess payment 
     against the future payment obligations of that defendant 
     participant. The pendency of a petition for rehearing under 
     paragraph (10) shall not stay the obligation of the 
     participant to make the payment specified in the 
     Administrator's notice.
       (7) Exemptions for information required.--
       (A) Prior asbestos expenditures.--In lieu of submitting 
     information related to prior asbestos expenditures as may be 
     required for purposes of this subtitle, a non-debtor 
     defendant participant may consent to be assigned to Tier II.
       (B) Revenues.--In lieu of submitting information related to 
     revenues as may be required for purposes of this subtitle, a 
     non-debtor defendant participant may consent to be assigned 
     to Subtier 1 of the defendant participant's applicable tier.
       (8) New information.--
       (A) Existing participant.--The Administrator shall adopt 
     procedures for requiring additional payment, or refunding 
     amounts already paid, based on new information received.
       (B) Additional participant.--If the Administrator, at any 
     time, receives information that an additional person may 
     qualify as a defendant participant, the Administrator shall 
     require such person to submit information necessary to 
     determine whether that person is required to make payments, 
     and in what amount, under this subtitle and shall make any 
     determination or take any other act consistent with this Act 
     based on such information or any other information available 
     to the Administrator with respect to such person.
       (9) Subpoenas.--The Administrator may request the Attorney 
     General to subpoena persons to compel testimony, records, and 
     other information relevant to its responsibilities under this 
     section. The Attorney General may enforce such subpoena in 
     appropriate proceedings in the United States district court 
     for the district in which the person to whom the subpoena was 
     addressed resides, was served, or transacts business.
       (10) Rehearing.--A defendant participant has a right to 
     obtain rehearing of the Administrator's determination under 
     this subsection of the applicable tier or subtier [and], of 
     the Administrator's determination under subsection (d) of a 
     financial hardship or inequity adjustment, and of the 
     Administrator's determination under subsection (m) of a 
     distributor's 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 required 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)](d), 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] required under subsection (h) [net of any 
     adjustments under subsection (d)], after applicable 
     reductions or adjustments have been taken according to 
     subsections (d) and (m) 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 required under subsection (h) [net of any 
     adjustments under subsection (d)] in any given year, the 
     Administrator [may] shall, unless the Administrator 
     implements a funding holiday under section 205(b), impose on 
     each defendant participant a surcharge as necessary to raise 
     the balance required to attain the minimum aggregate annual 
     payment required under subsection (h) [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)] (as 
     modified by subsections (b), (d), (f), (g), and (m) of this 
     section).
       (2) Limitation.--
       (A) In general.--In no case shall the Administrator impose 
     a surcharge under this subsection on any defendant 
     participant included in Subtier 3 of Tiers V or VI as 
     described under section 203.
       (B) Reallocation.--Any amount not imposed under 
     subparagraph (A) shall be reallocated on a pro-rata basis, in 
     accordance with each defendant participant's (other than a 
     defendant participant described under subparagraph (A)) 
     relative annual liability under sections 202 and 203 (as 
     modified by subsections (b), (d), (f), and (g) of this 
     section).
       [(2)](3) Certification.--
       (A) In general.--Before imposing a guaranteed payment 
     surcharge under this subsection, the Administrator shall 
     certify that he or she has used all reasonable efforts to 
     collect mandatory payments for all defendant participants, 
     including by using the authority in subsection (i)(9) of this 
     section and section 223.
       (B) Notice and comment.--Before making a final 
     certification under subparagraph (C), the Administrator shall 
     publish a notice in the Federal Register of a proposed 
     certification and provide in such notice for a public comment 
     period of 30 days.
       (C) Final certification.--
       (i) In general.--The Administrator shall publish a notice 
     of the final certification in the Federal Register after 
     consideration of all comments submitted under subparagraph 
     (B).
       (ii) Written notice.--Not later than 30 days after 
     publishing any final certification under clause (i), the 
     Administrator shall provide each defendant participant with 
     written notice of that defendant participant's payment, 
     including the amount of any surcharge.
       (m) Adjustments for Distributors.--
       (1) Definition.--In this subsection, the term 
     ``distributor'' means a person--
       (A) whose prior asbestos expenditures arise exclusively 
     from the sale of products manufactured by others;
       (B) who did not prior to December 31, 2002, sell raw 
     asbestos or a product containing more than 95 percent 
     asbestos by weight;
       (C) whose prior asbestos expenditures did not arise out 
     of--
       (i) the manufacture, installation, repair, reconditioning, 
     maintaining, servicing, constructing, or remanufacturing of 
     any product;
       (ii) the control of the design, specification, or 
     manufacture of any product; or
       (iii) the sale or resale of any product under, as part of, 
     or under the auspices of, its own brand, trademark, or 
     service mark; and
       (D) who is not subject to assignment under section 202 to 
     Tier I, II, III or VII.
       (2) Tier reassignment for distributors.--
       (A) In general.--Notwithstanding section 202, the 
     Administrator shall assign a distributor to a Tier for 
     purposes of this title under the procedures set forth in this 
     paragraph.
       (B) Designation.--After a final determination by the 
     Administrator under section 204(i), any person who is, or any 
     affiliated group in which every member is, a distributor may 
     apply to the Administrator for adjustment of its Tier 
     assignment under this subsection. Such application shall be 
     prepared in accordance with such procedures as the 
     Administrator shall promulgate by rule. Once the 
     Administrator designates a person or affiliated group as a 
     distributor under this subsection, such designation and the 
     adjustment of tier assignment under this subsection are 
     final.
       (C) Payments.--Any person or affiliated group that seeks 
     adjustment of its Tier assignment under this subsection shall 
     pay all amounts required of it under this title until a final 
     determination by the Administrator is made under this 
     subsection. Such payments may not be stayed pending any 
     appeal. The Administrator shall grant any person or 
     affiliated group a refund or credit of any payments made if 
     such adjustment results in a lower payment obligation.
       (D) Adjustment.--Subject to paragraph (3), any person or 
     affiliated group that the Administrator has designated as a 
     distributor under this subsection shall be given an 
     adjustment of Tier assignment as follows:
       (i) A distributor that but for this subsection would be 
     assigned to Tier IV shall be deemed assigned to Tier V.
       (ii) A distributor that but for this subsection would be 
     assigned to Tier V shall be deemed assigned to Tier VI.

[[Page S807]]

       (iii) A distributor that but for this subsection would be 
     assigned to Tier VI shall be deemed assigned to no Tier and 
     shall have no obligation to make any payment to the Fund 
     under this Act.
       (E) Exclusive to inequity adjustment.--Any person or 
     affiliated group designated by the Administrator as a 
     distributor under this subsection shall not be eligible for 
     an inequity adjustment under subsection 204(d).
       (3) Limitation on adjustments.--The aggregate total of 
     distributor adjustments under this subsection in effect in 
     any given year shall not exceed $50,000,000. If the aggregate 
     total of distributors adjustments under this subsection would 
     otherwise exceed $50,000,000, then each distributor's 
     adjustment shall be reduced pro rata until the aggregate of 
     all adjustments equals $50,000,000.
       (4) Rehearing.--A defendant participant has a right to 
     obtain a rehearing of the Administrator's determination on an 
     adjustment under this subsection under the procedures 
     prescribed in subsection (i)(10).

     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.

     SEC. 206. ACCOUNTING TREATMENT.

       Defendant participants payment obligations to the Fund 
     shall be subject to discounting under the applicable 
     accounting guidelines for generally accepted accounting 
     purposes and statutory accounting purposes for each defendant 
     participant. This section shall in no way reduce the amount 
     of monetary payments to the Fund by defendant participants as 
     required under section 202(a)(2).

                Subtitle B--Asbestos Insurers Commission

     SEC. 210. DEFINITION.

       In this subtitle, the term ``captive insurance company'' 
     means a company--
       (1) whose entire beneficial interest is owned on the date 
     of enactment of this Act, directly or indirectly, by a 
     defendant participant or by the ultimate parent or the 
     affiliated group of a defendant participant;
       (2) whose primary commercial business during the period 
     from calendar years 1940 through 1986 was to provide 
     insurance to its ultimate parent or affiliated group, or any 
     portion of the affiliated group or a combination thereof; and
       (3) that was incorporated or operating no later than 
     December 31, 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).] to make up, during the 
     first 5 years of the life of the Fund and any subsequent 
     years as provided in section 405(e) for any reduction in an 
     insurer participant's annual allocated amount caused by the 
     granting of a financial hardship or exceptional circumstance 
     adjustment under this section, and any amount by which 
     aggregate insurer payments fall below the level required 
     under paragraph (3)(C) by reason of the failure or refusal of 
     any insurer participant to make a required payment, or for 
     any other reason that causes such payments to fall below the 
     level required under 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

[[Page S808]]

     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 retrospective 
     reinsurance purchased by an insurer participant or its 
     affiliate after 1990 that provides for a risk or 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, less any bankruptcy 
     trust credits under section 222(d).
       (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 
     this 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;
       (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] 
     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] such 
     adjustment, but except as provided under paragraph (1)(B), 
     subsection (f)(3), and section 405(e), any such adjustment 
     shall not affect 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.
       (F) Funding holidays.--
       (i) 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 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 
     insurer participants for that year.
       (ii) Annual review.--The Administrator shall undertake the 
     review required by this subsection and make the necessary 
     determination under clause (i) every year.

[[Page S809]]

       (iii) Limitations of funding holidays.--Any reduction or 
     waiver of the insurer participants' funding obligations 
     shall--

       (I) be made only to the extent the Administrator determines 
     that the Fund will still be able to satisfy all of its 
     anticipated obligations; and
       (II) be applied on an equal pro rata basis to the funding 
     obligations of all insurer participants for that year.

       (iv) 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 insurer 
     participants for that year.
       (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 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).

[[Page S810]]

       [(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.]
       (e) Interim Payments.--
       (1) Amount of interim payment.--Within 90 days after the 
     date of enactment of this Act, insurer participants shall 
     make an aggregate payment to the Fund not to exceed 50 
     percent of the aggregate funding obligation specified under 
     subsection (a)(3)(C) for year 1.
       (2) Reserve information.--Within 30 days after the date of 
     enactment of this Act, each insurer participant shall submit 
     to the Administrator a certified statement of its net held 
     reserves for asbestos liabilities as of December 31, 2004.
       (3) Allocation of interim payment.--The Administrator shall 
     allocate the interim payment among the individual insurer 
     participants on an equitable basis using the net held 
     asbestos reserve information provided by insurer participants 
     under subsection (a)(3)(B). Within 60 days after the date of 
     enactment of this Act, the Administrator shall publish in the 
     Federal Register the name of each insurer participant, and 
     the amount of the insurer participant's allocated share of 
     the interim payment. The use of net held asbestos reserves as 
     the basis to determine an interim allocation shall not be 
     binding on the Administrator in the determination of an 
     appropriate final allocation methodology under this section. 
     All payments required under this paragraph 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 under subsection 
     (a)(3)(E).
       (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, consistent 
     with subsection (a)(1)(B), 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) Credits for shortfall assessments.--If insurer 
     participants are required during the first 5 years of the 
     life of the Fund to make up any shortfall in required insurer 
     payments under subsection (a)(1)(B), then, beginning in year 
     6, the Administrator shall grant each insurer participant a 
     credit against its annual required payments during the 
     applicable years that in the aggregate equal the amount of 
     shortfall assessments paid by such insurer participant during 
     the first 5 years of the life of the Fund. The credit shall 
     be prorated over the same number of years as the number of 
     years during which the insurer participant paid a shortfall 
     assessment. Insurer participants which did not pay all 
     required payments to the Fund during the first 5 years of the 
     life of the Fund shall not be eligible for a credit. The 
     Administrator shall not grant a credit for shortfall 
     assessments imposed under section 405(e).
       [(3)](4) 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) Accounting Treatment.--Insurer participants' payment 
     obligations to the Fund shall be subject to discounting under 
     the applicable accounting guidelines for generally accepted 
     accounting purposes and statutory accounting purposes for 
     each insurer participant. This subsection shall in no way 
     reduce the amount of monetary payments to the Fund by insurer 
     participants as required under subsection (a).
       [(g)](h) 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;

[[Page S811]]

       (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.--
       (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.]
       (4) Repayment obligations.--Repayment of monies borrowed by 
     the Administrator under this subsection shall be repaid in 
     full by the Fund contributors and is limited solely to 
     amounts available, present or future, in the Fund.
       (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)](c) 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,

[[Page S812]]

     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.] in accordance with the 
     relative aggregate funding obligations under sections 
     202(a)(2) and 212(a)(2)(A).
       (3) Certification.--
       (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)](d) 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,] 
     any appropriate United States District Court, 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] shall 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 unless and until it complies. If any direct insurer or 
     reinsurer refuses to furnish any information requested by the 
     Administrator, 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 unless and until it complies. Insurer 
     participants or their affiliates seeking to obtain a license 
     from any State to write any type of insurance shall be barred

[[Page S813]]

     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 after the date of the Administrator's 
     determination of default. Any State law governing credit for 
     reinsurance to the contrary is preempted.
       (g) Defense Limitation.--In any proceeding under this 
     section, the participant shall be barred from bringing any 
     challenge to any determination of the Administrator or the 
     Asbestos Insurers Commission regarding its liability under 
     this Act, or to the constitutionality of this Act or any 
     provision thereof, if such challenge could have been made 
     during the review provided under section 204(i)(10), or in a 
     judicial review proceeding under section 303.
       (h) Deposit of Funds.--
       (1) In general.--Any funds collected under subsection 
     (c)(2) (A) or (C) shall be--
       (A) deposited in the Fund; and
       (B) used only to pay--
       (i) claims for awards for an eligible disease or condition 
     determined under title I; or
       (ii) claims for reimbursement for medical monitoring 
     determined under title I.
       (2) No effect on other liabilities.--The imposition of a 
     fine under subsection (c)(2)(C) shall have no effect on--
       (A) the assessment of contributions under subtitles A and 
     B; or
       (B) any other provision of this Act.
       (i) Property of the Estate.--Section 541(b) of title 11, 
     United States Code, is amended--
       (1) in paragraph (4)(B)(ii), by striking ``or'' at the end;
       (2) in paragraph (5), by striking ``prohibition.'' and 
     inserting ``prohibition; or''; and
       (3) by inserting after paragraph (5) and before the last 
     undesignated sentence the following:
       ``(6) the value of any pending claim against or the amount 
     of an award granted from the Asbestos Injury Claims 
     Resolution Fund established under the Fairness in Asbestos 
     Injury Resolution Act of 2005.''.
       (j) Proposed Transactions.--
       (1) Notice of proposed transaction.--Any participant that 
     has taken any action to effectuate a proposed transaction or 
     a proposed series of transactions under which a significant 
     portion of such participant's assets, properties or business 
     will, if consummated as proposed, be, directly or indirectly, 
     transferred by any means (including, without limitation, by 
     sale, dividend, contribution to a subsidiary or split-off) to 
     1 or more persons other than the participant shall provide 
     written notice to the Administrator of such proposed 
     transaction (or proposed series of transactions). Upon the 
     request of such participant, and for so long as the 
     participant shall not publicly disclose the transaction or 
     series of transactions and the Administrator shall not 
     commence any action under paragraph (6), the Administrator 
     shall treat any such notice as confidential commercial 
     information under section 552 of title 5, United States Code.
       (2) Timing of notice and related actions.--
       (A) In general.--Any notice that a participant is required 
     to give under paragraph (1) shall be given not later than 30 
     days before the date of consummation of the proposed 
     transaction or the first transaction to occur in a proposed 
     series of transactions.
       (B) Other notifications.--
       (i) In general.--Not later than the date in any year by 
     which a participant is required to make its contribution to 
     the Fund, the participant shall deliver to the Administrator 
     a written certification stating that--

       (I) the participant has complied during the period since 
     the last such certification or the date of enactment of this 
     Act with the notice requirements set forth in this 
     subsection; or
       (II) the participant was not required to provide any notice 
     under this subsection during such period.

       (ii) Summary.--The Administrator shall include in the 
     annual report required to be submitted to Congress under 
     section 405 a summary of all such notices (after removing all 
     confidential identifying information) received during the 
     most recent fiscal year.
       (C) Notice completion.--The Administrator shall not 
     consider any notice given under paragraph (1) as given until 
     such time as the Administrator receives substantially all the 
     information required by this subsection.
       (3) Contents of notice.--
       (A) In general.--The Administrator shall determine by rule 
     or regulation the information to be included in the notice 
     required under this subsection, which shall include such 
     information as may be necessary to enable the Administrator 
     to determine whether--
       (i) the person or persons to whom the assets, properties or 
     business are being transferred in the proposed transaction 
     (or proposed series of transactions) should be considered to 
     be the successor in interest of the participant for purposes 
     of this Act, or
       (ii) the proposed transaction (or proposed series of 
     transactions) would, if consummated, be subject to avoidance 
     by a trustee under section 544(b) or 548 of title 11, United 
     States Code, as if, but whether or not, the participant is 
     subject to a case under title 11, United States Code.
       (B) Statements.--The notice shall also include--
       (i) a statement by the participant as to whether it 
     believes any person will or has become a successor in 
     interest to the participant for purposes of this Act and, if 
     so, the identity of that person; and
       (ii) a statement by the participant as to whether that 
     person has acknowledged that it will or has become a 
     successor in interest for purposes of this Act.
       (4) Definition.--In this subsection, the term ``significant 
     portion of the assets, properties or business of a 
     participant'' means assets (including, without limitation, 
     tangible or intangible assets, securities and cash), 
     properties or business of such participant (or its affiliated 
     group, to the extent that the participant has elected to be 
     part of an affiliated group under section 204(f)) that, 
     together with any other asset, property or business 
     transferred by such participant in any of the previous 
     completed 5 fiscal years of such participant (or, as 
     appropriate, its affiliated group), and as determined in 
     accordance with United States generally accepted accounting 
     principles as in effect from time to time--
       (A) generated at least 40 percent of the revenues of such 
     participant (or its affiliated group);
       (B) constituted at least 40 percent of the assets of such 
     participant (or its affiliated group);
       (C) generated at least 40 percent of the operating cash 
     flows of such participant (or its affiliated group); or
       (D) generated at least 40 percent of the net income or loss 
     of such participant (or its affiliated group),
     as measured during any of such 5 previous fiscal years.
       (5) Consummation of transaction.--Any proposed transaction 
     (or proposed series of transactions) with respect to which a 
     participant is required to provide notice under paragraph (1) 
     may not be consummated until at least 30 days after delivery 
     to the Administrator of such notice, unless the Administrator 
     shall earlier terminate the notice period. The Administrator 
     shall endeavor whenever possible to terminate a notice period 
     at the earliest practicable time.
       (6) Right of action.--
       (A) In general.--Notwithstanding section 221(f), if the 
     Administrator or any participant believes that a participant 
     proposes to engage or has engaged, directly or indirectly, 
     in, or is the subject of, a transaction (or series of 
     transactions)--
       (i) involving a person or persons who, as a result of such 
     transaction (or series of transactions), may have or may 
     become the successor in interest or successors in interest of 
     such participant, where the status or potential status as a 
     successor in interest has not been stated and acknowledged by 
     the participant and such person; or
       (ii) that may be subject to avoidance by a trustee under 
     section 544(b) or 548 of title 11, United States Code, as if, 
     but whether or not, the participant is a subject to a case 
     under title 11, United States Code,

     then the Administrator or such participant may, as a deemed 
     creditor under applicable law, bring a civil action in an 
     appropriate forum against the participant or any other person 
     who is either a party to the transaction (or series of 
     transactions) or the recipient of any asset, property or 
     business of the participant.
       (B) Relief allowed.--In any action commenced under this 
     subsection, the Administrator or a participant, as 
     applicable, may seek--
       (i) with respect to a transaction (or series of 
     transactions) referenced in clause (i) of subparagraph (A), a 
     declaratory judgment regarding whether such person will or 
     has become the successor in interest of such participant; or
       (ii) with respect to a transaction (or series of 
     transactions) referenced in clause (ii) of subparagraph (A)--

       (I) a temporary restraining order or a preliminary or 
     permanent injunction against such transaction (or series of 
     transactions); or
       (II) such other relief regarding such transaction (or 
     series of transactions) as the court determines to be 
     necessary to ensure that performance of a participant's 
     payment obligations under this Act is not materially impaired 
     by reason of such transaction (or series of transactions).

       (C) Applicability.--If the Administrator or a participant 
     wishes to challenge a statement made by a participant that a 
     person will not or has not become a successor in interest for 
     purposes of this Act, then this paragraph shall be the 
     exclusive means by which the determination of whether such 
     person will or has become a successor in interest of the 
     participant shall be made. This paragraph shall not preempt 
     any other rights of any person under applicable Federal or 
     State law.
       (D) Venue.--Any action under this paragraph shall be 
     brought in any appropriate United States district court or, 
     to the extent necessary to obtain complete relief, any other 
     appropriate forum outside of the United States.
       (7) Rules and regulations.--The Administrator may 
     promulgate regulations to effectuate the intent of this 
     subsection, including regulations relating to the form, 
     timing and content of notices.

     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.

[[Page S814]]

       (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) the intensity and duration of exposure to risk levels 
     of naturally occurring asbestos as defined by the 
     Environmental Protection Agency; and
       [(vi)](vii) 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] 
     for reimbursement of screening services at a reasonable rate 
     and termination of 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, with a 
     minimum of $20,000,000 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 may reduce the amount of 
     funding below $20,000,000 each year if the program is fully 
     implemented. 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.

     SEC. 226. NATIONAL MESOTHELIOMA RESEARCH AND TREATMENT 
                   PROGRAM.

       (a) In General.--There is established the National 
     Mesothelioma Research and Treatment Program (referred to in 
     this section as the ``Program'') to investigate and advance 
     the detection, prevention, treatment, and cure of malignant 
     mesothelioma.
       (b) Mesothelioma Centers.--
       (1) In general.--The Administrator shall make available 
     $1,500,000 from the Fund, and the Director of the National 
     Institutes of Health shall make available $1,000,000 from 
     amounts available to the Director, for each of fiscal years 
     2006 through 2015, for the establishment of each of 10 
     mesothelioma disease research and treatment centers.
       (2) Requirements.--The Director of the National Institutes 
     of Health, in consultation with the Medical Advisory 
     Committee, shall conduct a competitive peer review process to 
     select sites for the centers described in paragraph (1). The 
     Director shall ensure that sites selected under this 
     paragraph are--
       (A) geographically distributed throughout the United States 
     with special consideration given to areas of high incidence 
     of mesothelioma disease;
       (B) closely associated with Department of Veterans Affairs 
     medical centers, in order to provide research benefits and 
     care to veterans who have suffered excessively from 
     mesothelioma;
       (C) engaged in exemplary laboratory and clinical 
     mesothelioma research, including clinical trials, to provide 
     mechanisms for effective therapeutic treatments, as well as 
     detection and prevention, particularly in areas of palliation 
     of disease symptoms and pain management;
       (D) participants in the National Mesothelioma Registry and 
     Tissue Bank under subsection (c)

[[Page S815]]

     and the annual International Mesothelioma Symposium under 
     subsection (d)(2)(E);
       (E) with respect to research and treatment efforts, 
     coordinated with other centers and institutions involved in 
     exemplary mesothelioma research and treatment;
       (F) able to facilitate transportation and lodging for 
     mesothelioma patients, so as to enable patients to 
     participate in the newest developing treatment protocols, and 
     to enable the centers to recruit patients in numbers 
     sufficient to conduct necessary clinical trials; and
       (G) nonprofit hospitals, universities, or medical or 
     research institutions incorporated or organized in the United 
     States.
       (c) Mesothelioma Registry and Tissue Bank.--
       (1) Establishment.--The Administrator shall make available 
     $1,000,000 from the Fund, and the Director of the National 
     Institutes of Health shall make available $1,000,000 from 
     amounts available to the Director, for each of fiscal years 
     2006 through 2015 for the establishment, maintenance, and 
     operation of a National Mesothelioma Registry to collect data 
     regarding symptoms, pathology, evaluation, treatment, 
     outcomes, and quality of life and a Tissue Bank to include 
     the pre- and post-treatment blood (serum and blood cells) 
     specimens as well as tissue specimens from biopsies and 
     surgery. Not less than $500,000 of the amount made available 
     under the preceding sentence in each fiscal year shall be 
     allocated for the collection and maintenance of tissue 
     specimens.
       (2) Requirements.--The Director of the National Institutes 
     of Health, with the advice and consent of the Medical 
     Advisory Committee, shall conduct a competitive peer review 
     process to select a site to administer the Registry and 
     Tissue Bank described in paragraph (1). The Director shall 
     ensure that the site selected under this paragraph--
       (A) is available to all mesothelioma patients and 
     qualifying physicians throughout the United States;
       (B) is subject to all applicable medical and patient 
     privacy laws and regulations;
       (C) is carrying out activities to ensure that data is 
     accessible via the Internet; and
       (D) provides data and tissue samples to qualifying 
     researchers and physicians who apply for such data in order 
     to further the understanding, prevention, screening, 
     diagnosis, or treatment of malignant mesothelioma.
       (d) Center for Mesothelioma Education.--
       (1) Establishment.--The Administrator shall make available 
     $1,000,000 from the Fund, and the Director of the National 
     Institutes of Health shall make available $1,000,000 from 
     amounts available to the Director, for each of fiscal years 
     2006 through 2015 for the establishment, with the advice and 
     consent of the Medical Advisory Committee, of a Center for 
     Mesothelioma Education (referred to in this section as the 
     ``Center'') to--
       (A) promote mesothelioma awareness and education;
       (B) assist mesothelioma patients and their family members 
     in obtaining necessary information; and
       (C) work with the centers established under subsection (b) 
     in advancing mesothelioma research.
       (2) Activities.--The Center shall--
       (A) educate the public about the new initiatives contained 
     in this section through a National Mesothelioma Awareness 
     Campaign;
       (B) develop and maintain a Mesothelioma Educational 
     Resource Center (referred to in this section as the 
     ``MERCI''), that is accessible via the Internet, to provide 
     mesothelioma patients, family members, and front-line 
     physicians with comprehensive, current information on 
     mesothelioma and its treatment, as well as on the existence 
     of, and general claim procedures for the Asbestos Injury 
     Claims Resolution Fund;
       (C) through the MERCI and otherwise, educate mesothelioma 
     patients, family members, and front-line physicians about, 
     and encourage such individuals to participate in, the centers 
     established under subsection (b), the Registry and the Tissue 
     Bank;
       (D) complement the research efforts of the centers 
     established under subsection (b) by awarding competitive, 
     peer-reviewed grants for the training of clinical specialist 
     fellows in mesothelioma, and for highly innovative, 
     experimental or pre-clinical research; and
       (E) conduct an annual International Mesothelioma Symposium.
       (3) Requirements.--The Center shall--
       (A) be a nonprofit corporation under section 501(c)(3) of 
     the Internal Revenue Code of 1986;
       (B) be a separate entity from and not an affiliate of any 
     hospital, university, or medical or research institution; and
       (C) demonstrate a history of program spending that is 
     devoted specifically to the mission of extending the survival 
     of current and future mesothelioma patients, including a 
     history of soliciting, peer reviewing through a competitive 
     process, and funding research grant applications relating to 
     the detection, prevention, treatment, and cure of 
     mesothelioma.
       (4) Contracts for oversight.--The Director of the National 
     Institutes of Health may enter into contracts with the Center 
     for the selection and oversight of the centers established 
     under subsection (b), or selection of the director of the 
     Registry and the Tissue Bank under subsection (c) and 
     oversight of the Registry and the Tissue Bank.
       (e) Report and Recommendations.--Not later than September 
     30, 2015, The Director of the National Institutes of Health 
     shall, after opportunity for public comment and review, 
     publish and provide to Congress a report and recommendations 
     on the results achieved and information gained through the 
     Program, including--
       (1) information on the status of mesothelioma as a national 
     health issue, including--
       (A) annual United States incidence and death rate 
     information and whether such rates are increasing or 
     decreasing;
       (B) the average prognosis; and
       (C) the effectiveness of treatments and means of 
     prevention;
       (2) promising advances in mesothelioma treatment and 
     research which could be further developed if the Program is 
     reauthorized; and
       (3) a summary of advances in mesothelioma treatment made in 
     the 10-year period prior to the report and whether those 
     advances would justify continuation of the Program and 
     whether it should be reauthorized for an additional 10 years.
       (f) Severability.--If any provision of this Act, or 
     amendment made by this Act, or the application of such 
     provision or amendment to any person or circumstance is held 
     to be unconstitutional, the remainder of this Act (including 
     this section), the amendments made by this Act, and the 
     application of the provisions of such to any person or 
     circumstance shall not be affected thereby.
       (g) Regulations.--The Director of the National Institutes 
     of Health shall promulgate regulations to provide for the 
     implementation of this section.

                       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), a 
     notice of a distributor's adjustment under section 204(m), 
     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), or a notice of a 
     distributor's adjustment under section 204(m), 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

[[Page S816]]

     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.--
       (1) Payments.--No court may issue a stay of payment by any 
     party into the Fund pending its final judgment.
       (2) Legal challenges.--No court may issue a stay or 
     injunction pending final judicial action, including the 
     exhaustion of all appeals, on a legal challenge to this Act 
     or any portion of this Act.
       (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.]
       (1) In general.--The United States District Court for the 
     District of Columbia shall have exclusive jurisdiction over 
     any action challenging the constitutionality of any provision 
     or application of this Act. The following rules shall apply:
       (A) The action shall be filed in the United States District 
     Court for the District of Columbia and shall be heard by a 3-
     judge court convened under section 2284 of title 28, United 
     States Code.
       (B) A final decision in the action shall be reviewable only 
     by appeal directly to the Supreme Court of the United States. 
     Such appeal shall be taken by the filing of a notice of 
     appeal within 10 days, and the filing of a jurisdictional 
     statement within 30 days, after the entry of the final 
     decision.
       (C) 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.
       [(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)](2) 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. 1351. 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.--
       ``(1) In general.--It shall be unlawful for any person, in 
     any matter involving the Office of Asbestos Disease 
     Compensation or the Asbestos Insurers Commission, to 
     knowingly and willfully--
       ``(A) falsify, conceal, or cover up by any trick, scheme, 
     or device a material fact;
       ``(B) make any materially false, fictitious, or fraudulent 
     statement or representation; or
       ``(C) make or use 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.
       ``(2) Penalty.--A person who violates this subsection 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:

``1351. Fraud and false statements in connection with participation in 
              Asbestos Injury Claims Resolution Fund.''.

     SEC. 402. EFFECT ON BANKRUPTCY LAWS.

       (a) No Automatic Stay.--Section 362(b) of title 11, United 
     States Code, is amended--
       (1) in paragraph (17), by striking ``or'' at the end;
       (2) in paragraph (18), by striking the period at the end 
     and inserting ``; or''; and
       (3) by inserting after paragraph (18) the following:
       ``(19) under subsection (a) of this section of the 
     enforcement of any payment obligations under section 204 of 
     the Fairness in Asbestos Injury Resolution Act of 2005, 
     against a debtor, or the property of the estate of a debtor, 
     that is a participant (as that term is defined in section 3 
     of that Act).''.
       (b) Assumption of Executory Contract.--Section 365 of title 
     11, United States Code, is amended by adding at the end the 
     following:
       ``(p) If a debtor is a participant (as that term is defined 
     in section 3 of the Fairness in Asbestos Injury Resolution 
     Act of 2005), the trustee shall be deemed to have assumed all 
     executory contracts entered into by the participant under 
     section 204 of that Act. The trustee may not reject any such 
     executory contract.''.
       (c) Allowed Administrative Expenses.--Section 503 of title 
     11, United States Code, is amended by adding at the end the 
     following:
       ``(c)(1) Claims or expenses of the United States, the 
     Attorney General, or the Administrator (as that term is 
     defined in section 3 of the Fairness in Asbestos Injury 
     Resolution Act of 2005) based upon the asbestos payment 
     obligations of a debtor that is a Participant (as that term 
     is defined in section 3 of that Act), shall be paid as an 
     allowed administrative expense. The debtor shall not be 
     entitled to either notice or a hearing with respect to such 
     claims.
       ``(2) For purposes of paragraph (1), the term `asbestos 
     payment obligation' means any payment obligation under title 
     II of the Fairness in Asbestos Injury Resolution Act of 
     2005.''.
       (d) No Discharge.--Section 523 of title 11, United States 
     Code, is amended by adding at the end the following:
       ``(f) A discharge under section 727, 1141, 1228, or 1328 of 
     this title does not discharge any debtor that is a 
     participant (as that term is defined in section 3 of the 
     Fairness in Asbestos Injury Resolution Act of 2005) of the 
     debtor's payment obligations assessed against the participant 
     under title II of that Act.''.
       (e) Payment.--Section 524 of title 11, United States Code, 
     is amended by adding at the end the following:
       ``(i) Participant Debtors.--
       ``(1) In general.--Paragraphs (2) and (3) shall apply to a 
     debtor who--
       ``(A) is a participant that has made prior asbestos 
     expenditures (as such terms are defined in the Fairness in 
     Asbestos Injury Resolution Act of 2005); and
       ``(B) is subject to a case under this title that is 
     pending--
       ``(i) on the date of enactment of the Fairness in Asbestos 
     Injury Resolution Act of 2005; or
       ``(ii) at any time during the 1-year period preceding the 
     date of enactment of that Act.
       ``(2) Tier i debtors.--A debtor that has been assigned to 
     Tier I under section 202 of the Fairness in Asbestos Injury 
     Resolution Act of 2005, shall make payments in accordance 
     with sections 202 and 203 of that Act.
       ``(3) Treatment of payment obligations.--All payment 
     obligations of a debtor under sections 202 and 203 of the 
     Fairness in Asbestos Injury Resolution Act of 2005 shall--
       ``(A) constitute costs and expenses of administration of a 
     case under section 503 of this title;
       ``(B) notwithstanding any case pending under this title, be 
     payable in accordance with section 202 of that Act;
       ``(C) not be stayed;
       ``(D) not be affected as to enforcement or collection by 
     any stay or injunction of any court; and
       ``(E) not be impaired or discharged in any current or 
     future case under this title.''.
       (f) Treatment of Trusts.--Section 524 of title 11, United 
     States Code, as amended by this Act, is amended by adding at 
     the end the following:
       ``(j) Asbestos Trusts.--
       ``(1) In general.--A trust shall assign a portion of the 
     corpus of the trust to the Asbestos Injury Claims Resolution 
     Fund (referred to in this subsection as the `Fund') as

[[Page S817]]

     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] 90 days 
     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--
       (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

[[Page S818]]

     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.
       (3) Statute of limitations.--In general, the statute of 
     limitations for a silica claim shall be governed by 
     applicable State law, except that in any case under this 
     subsection, the statute of limitations shall only start to 
     run when the plaintiff becomes impaired.
       (c) Superseding Provisions.--
       (1) In general.--Except as provided under paragraph (3) and 
     section 106(f), 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;]
       (i) before the date of enactment of this Act, the 
     settlement agreement was executed by--

       (I) the settling defendant or the settling insurer; and
       (II)(aa) the specific individual plaintiff, or the 
     individual's immediate relatives; or
       (bb) an authorized legal representative acting on behalf of 
     the plaintiff where the plaintiff is incapacitated and the 
     settlement agreement is signed by that 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) and 
     section 106(f), 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) and section 
     106(f).
       (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) and section 106(f).
       (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 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

[[Page S819]]

     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] 38.1 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] 38.1 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 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

[[Page S820]]

     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] Subject to 
     section 212(a)(1)(D), 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] written 
     agreement specifically providing insurance [or reinsurance], 
     reinsurance, or other reimbursement 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, including claims filed, 
     pursued, or revived under section 405(g), except to the 
     extent that--
       [(A) such person pays or becomes legally obligated to pay 
     claims that are superseded by section 403;]
       (A) such claims are preempted, barred, or 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;

[[Page S821]]

       (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] those claimants 
     who suffer from injuries for which exposure to asbestos was a 
     substantial contributing factor;
       (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.]
       (c) Claims Analysis and Verification of Unanticipated 
     Claims.--
       (1) In general.--If the Administrator concludes, on the 
     basis of the annual report submitted under this section, 
     that--
       (A) the average number of claims that qualify for 
     compensation under a claim level or designation exceeds 125 
     percent of the number of claims expected to qualify for 
     compensation under that claim level or designation in the 
     most recent Congressional Budget Office estimate of asbestos-
     injury claims for any 3-year period, the Administrator shall 
     conduct a review of a statistically significant sample of 
     claims qualifying for compensation under the appropriate 
     claim level or designation; or
       (B) the average number of claims that qualify for 
     compensation under a claim level or designation is less than 
     75 percent of the number of claims expected to qualify for 
     compensation under that claim level or designation in the 
     most recent Congressional Budget Office estimate of asbestos-
     injury claims for any 3-year period, the Administrator shall 
     conduct a review of a statistically significant sample of 
     claims deemed ineligible for compensation under the 
     appropriate claim level or designation.
       (2) Determinations.--The Administrator shall examine the 
     best available medical evidence and any recommendation made 
     under subsection (b)(5) in order to determine which 1 or more 
     of the following is true:
       (A) Without a significant number of exceptions, all of the 
     claimants who qualified for compensation under the claim 
     level or designation suffer from an injury or disease for 
     which exposure to asbestos was a substantial contributing 
     factor.
       (B) A significant number of claimants who qualified for 
     compensation under the claim level or designation do not 
     suffer from an injury or disease for which exposure to 
     asbestos was a substantial contributing factor.
       (C) A significant number of claimants who were denied 
     compensation under the claim level of designation did suffer 
     from an injury or disease for which exposure to asbestos was 
     a substantial contributing factor.
       (D) The Congressional Budget Office projections 
     underestimated or overestimated the actual number of persons 
     who suffer from an injury or disease for which exposure to 
     asbestos was a substantial contributing factor.
       (3) Recommendations concerning claims criteria.--If the 
     Administrator determines that a significant number of the 
     claimants who qualified for compensation under the claim 
     level under review do not suffer from an injury or disease 
     for which exposure to asbestos was a substantial contributing 
     factor, or that a significant number of the claimants who 
     were denied compensation under the claim level under review 
     suffered from an injury or disease for which exposure to 
     asbestos was a substantial contributing factor, the 
     Administrator shall recommend to Congress, under subsection 
     (e), changes to the compensation criteria in order to ensure 
     that the Fund provides compensation for injury or disease for 
     which exposure to asbestos was a substantial contributing 
     factor, but does not provide compensation to claimants who do 
     not suffer from an injury or disease for which asbestos 
     exposure was a substantial contributing factor.
       (d) Recommendations of Administrator and Advisory 
     Committee.--
       (1) Referral.--If the Administrator recommends changes to 
     this Act under subsection (c), the recommendations and 
     accompanying analysis shall be referred to the Advisory 
     Committee on Asbestos Disease Compensation established under 
     section 102 (in this subsection referred to as the ``Advisory 
     Committee'').
       (2) Advisory committee recommendations.--The Advisory 
     Committee shall hold expedited public hearings on the 
     alternatives and recommendations of the Administrator and 
     make its own recommendations for reform of the program under 
     titles I and II.
       (3) Transmittal to congress.--Not later than 90 days after 
     receiving the recommendations of the Administrator, the 
     Advisory Committee shall transmit the recommendations of the 
     Administrator and the recommendations of the Advisory 
     Committee to the Committee on the Judiciary of the Senate and 
     the Committee on the Judiciary of the House of 
     Representatives.
       [(d)](e) 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).
       (C) Insurer shortfall assessments.--Beginning in year 6 of 
     the life of the Fund, if the Administrator determines that a 
     shortfall in payment of the annual amounts required to be 
     paid by insurer participants under section 212(a)(3)(C) is 
     the substantial factor that would cause the Administrator to 
     recommend the termination of this Act under subsection (f), 
     then the Administrator may impose shortfall assessments on 
     insurer participants in addition to the payments imposed 
     under section 212, except that the Administrator shall not 
     impose such assessments if the additional amounts would not 
     be sufficient to permit the Administrator to avoid 
     recommending termination of this Act. During any given year, 
     the total of such shortfall assessments shall not exceed the 
     amount by which, during the prior year, total payments by 
     insurer participants fell short of the aggregate amounts 
     required to be paid under section 212(a)(3)(C). Shortfall 
     assessments shall be allocated among insurer participants 
     using the methodology adopted by the Asbestos Insurers 
     Commission under section 212(a)(1)(B).
       (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

[[Page S822]]

     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 a diagnosis before the date on which the 
     previous claim against the Fund was disposed.
       (C) Mesothelioma 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.
       (5) Expert witnesses.--If scientific, technical, or other 
     specialized knowledge will assist the trier of fact to 
     understand the evidence or to determine a fact in issue in an 
     action permitted under paragraph (1), a witness qualified as 
     an expert by knowledge, skill, experience, training, or 
     education, may testify thereto in the form of an opinion or 
     otherwise, if--
       (A) the testimony is based upon sufficient facts or data;
       (B) the testimony is the product of reliable principles and 
     methods; and
       (C) the witness has applied the principles and methods 
     reliably to the facts of the case.

     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] including any borrowing 
     authorized under section 221(b)(2); 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.

[[Page S823]]

     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 C.F.R. 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.
       (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:

[[Page S824]]

       ``(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] asbestiform amphibole minerals; 
     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] Except for an exception 
     authorized under paragraph (3)(A)(i), 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--
     ]
       ``(A) In general.--
       ``(i) Department of defense.--Nothing in this section or in 
     the regulations promulgated by the Administrator under 
     subsection (b) shall prohibit or limit the manufacture, 
     processing, or distribution in commerce of asbestos 
     containing products by or for the Department of Defense or 
     the use of asbestos containing products by or for the 
     Department of Defense if the Secretary of Defense certifies 
     (or recertifies within 10 years of a prior certification), 
     and provides a copy of the certification to Congress, that--

       ``(I) use of asbestos containing product is necessary to 
     the critical functions of the Department, which includes the 
     use of the asbestos containing product in any weaponry, 
     equipment, aircraft, vehicles, or other classes or categories 
     of property which are owned or operated by the Armed Forces 
     of the United States (including the Coast Guard) or by the 
     National Guard of any State and which are uniquely military 
     in nature;
       ``(II) no reasonably available and equivalent alternatives 
     to the asbestos containing product exist for the intended 
     purpose; and
       ``(III) use of the asbestos containing product will not 
     result in a known unreasonable risk to health or the 
     environment.

       ``(ii) National aeronautics and space administration.--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 sought by the Administrator of 
     the National Aeronautics and Space Administration and the 
     Administrator of the National Aeronautics and Space 
     Administration certifies, and provides a copy of that 
     certification to Congress, that--

       ``(I) the asbestos containing product is necessary to the 
     critical functions of the National Aeronautics and Space 
     Administration;
       ``(II) no reasonable alternatives to the asbestos 
     containing product exist for the intended purpose; and
       ``(III) the use of the asbestos containing product will not 
     result in an unreasonable risk to health or the environment.

       ``(B) Administrative procedure act.--Any certification 
     required under subparagraph (A) shall not be subject to 
     chapter 5 of title 5, United States Code (commonly referred 
     to as the `Administrative Procedure Act').
       ``(4) Specific exemptions.--The following are exempted:
       ``(A) Asbestos diaphragms for use in the manufacture of 
     chlor-alkali and the products and derivative therefrom.
       ``(B) Roofing cements, coatings, and mastics utilizing 
     asbestos that is totally encapsulated with asphalt, subject 
     to a determination by the Administrator of the Environmental 
     Protection Agency under paragraph (5).
       ``(5) Environmental protection agency review.--
       ``(A) Review in 18 months.--Not later than 18 months after 
     the date of enactment of this chapter, the Administrator of 
     the Environmental Protection Agency shall complete a review 
     of the exemption for roofing cements, coatings, and mastics 
     utilizing asbestos that are totally encapsulated with asphalt 
     to determine whether--
       ``(i) the exemption would result in an unreasonable risk of 
     injury to public health or the environment; and
       ``(ii) there are reasonable, commercial alternatives to the 
     roofing cements, coatings, and mastics utilizing asbestos 
     that is totally encapsulated with asphalt.
       ``(B) Revocation of exemption.--Upon completion of the 
     review, the Administrator of the Environmental Protection 
     Agency shall have the authority to revoke the exemption for 
     the products exempted under paragraph (4)(B), if warranted.
       ``(d) Disposal.--
       ``(1) In general.--Except as provided in paragraph (2), not 
     later than 3 years after the date of enactment of this 
     chapter, each person that possesses an asbestos containing 
     product that is subject to the prohibition established under 
     this section shall dispose of the asbestos containing 
     product, by a means that is in compliance with applicable 
     Federal, State, and local requirements.
       ``(2) Exemption.--Nothing in paragraph (1)--
       ``(A) applies to an asbestos containing product that--
       ``(i) is no longer in the stream of commerce; or
       ``(ii) is in the possession of an end user or a person who 
     purchases or receives an asbestos containing product directly 
     or indirectly from an end user; or
       ``(B) requires that an asbestos containing product 
     described in subparagraph (A) be removed or replaced.''.
       (b) Technical and Conforming Amendments.--The table of 
     contents in section 1 of the Toxic Substances Control Act (15 
     U.S.C. prec. 2601) is amended--
       (1) by inserting before the item relating to section 201 
     the following:

                  ``Subtitle A--General Provisions'';

     and
       (2) by adding at the end of the items relating to title II 
     the following:

[[Page S825]]

           ``Subtitle B--Ban of Asbestos Containing Products

``Sec. 221. Ban of asbestos containing products.''.

     SEC. 502. NATURALLY OCCURRING ASBESTOS.

       (a) Study.--
       (1) In general.--Not later than 12 months after the date of 
     enactment of this Act, the Administrator of the Environmental 
     Protection Agency shall--
       (A) conduct a study to assess the risks of exposure to 
     naturally occurring asbestos, including the appropriateness 
     of the existing risk assessment values for asbestos and 
     methods of assessing exposure; and
       (B) submit a report that contains a detailed statement of 
     the findings and conclusions of such study to--
       (i) the majority and minority leaders of the Senate;
       (ii) the Speaker and the minority leader of the House of 
     Representatives; and
       (iii) the relevant committees of jurisdiction of the Senate 
     and House of Representatives, including--

       (I) the Environment and Public Works Committee of the 
     Senate;
       (II) the Appropriations Committee of the Senate;
       (III) the Judiciary Committee of the Senate;
       (IV) the Energy and Commerce Committee of the House of 
     Representatives;
       (V) the Judiciary Committee of the House of 
     Representatives; and
       (VI) the Appropriations Committee of the House of 
     Representatives.

       (2) Development requirements.--
       (A) In general.--Not later than 18 months after the date of 
     enactment of this Act, the Administrator of the Environmental 
     Protection Agency, in consultation with appropriate Federal 
     and State agencies and other interested parties after 
     appropriate notice, shall establish dust management 
     guidelines, and model State regulations that States can 
     choose to adopt, for commercial and residential development, 
     and road construction in areas where naturally occurring 
     asbestos is present and considered a risk. Such dust 
     management guidelines may at a minimum incorporate provisions 
     consistent with the relevant California Code of Regulation 
     (17 C.C.R. 93105-06).
       (B) Dust management guidelines.--Guidelines under this 
     paragraph shall include--
       (i) site management practices to minimize the disturbance 
     of naturally occurring asbestos and contain asbestos 
     mobilized from the source at the development site;
       (ii) air and soil monitoring programs to assess asbestos 
     exposure levels at the development site and to determine 
     whether asbestos is migrating from the site; and
       (iii) appropriate disposal options for asbestos-containing 
     materials to be removed from the site during development.
       (b) Testing Protocols.--
       (1) In general.--Not later than 18 months after the date of 
     enactment of this Act, the Administrator of the Environmental 
     Protection Agency, in consultation with appropriate State 
     agencies, shall establish comprehensive protocols for testing 
     for the presence of naturally occurring asbestos.
       (2) Protocols.--The protocols under this subsection shall 
     address both ambient air monitoring and activity-based 
     personal sampling and include--
       (A) suggested sampling devices and guidelines to address 
     the issues of methods comparability, sampler operation, 
     performance specifications, and quality control and quality 
     assurance;
       (B) a national laboratory and air sampling accreditation 
     program for all methods of analyses of air and soil for 
     naturally occurring asbestos;
       (C) recommended laboratory analytical procedures, including 
     fiber types, fiber lengths, and fiber aspect ratios; and
       (D) protocols for collecting and analyzing aggregate and 
     soil samples for asbestos content, including proper and 
     consistent sample preparation practices suited to the 
     activity likely to occur on the soils of the study area.
       (c) Existing Buildings and Areas.--Not later than 1 year 
     after the date of enactment of this Act, the Administrator of 
     the Environmental Protection Agency shall issue public 
     education materials, recommended best management practices 
     and recommended remedial measures for areas containing 
     naturally occurring asbestos including existing--
       (1) schools and parks; and
       (2) commercial and residential development.
       (d) Mapping.--The Secretary of the Interior shall--
       (1) acquire infrared mapping data for naturally occurring 
     asbestos, prioritizing California counties experiencing rapid 
     population growth;
       (2) process that data into map images; and
       (3) collaborate with the California Geological Survey and 
     any other appropriate State agencies in producing final maps 
     of asbestos zones.
       (e) Research Grants.--The Director of the National 
     Institutes of Health shall administer 1 or more research 
     grants to qualified entities for studies that focus on better 
     understanding the health risks of exposure to naturally 
     occurring asbestos. Grants under this subsection shall be 
     awarded through a competitive peer-reviewed, merit-based 
     process.
       (f) Task Force Participation.--Representatives of Region IX 
     of the United States Environmental Protection Agency, and the 
     Agency for Toxic Substances and Disease Registry of the 
     United States Department of Health and Human Services shall 
     participate in any task force convened by the State of 
     California to evaluate policies and adopt guidelines for the 
     mitigation of risks associated with naturally occurring 
     asbestos.
       (g) Matching Grants.-- The Administrator of the 
     Environmental Protection Agency is authorized to award 50 
     percent matching Federal grants to States and municipalities. 
     Not later than 4 months after the date of enactment of this 
     Act, the Administrator of the Environmental Protection Agency 
     shall establish criteria to award such grants--
       (1) for monitoring and remediation of naturally occurring 
     asbestos--
       (A) at schools, parks, and other public areas; and
       (B) in serpentine aggregate roads generating significant 
     public exposure; and
       (2) for development, implementation, and enforcement of 
     State and local dust management regulations concerning 
     naturally occurring asbestos, provided that after the 
     Administrator has issued model State regulations under 
     subsection (a)(2), such State and local regulations shall be 
     at least as protective as the model regulations to be 
     eligible for the matching grants.
       (h) Availability of Funds.--An amount of $40,000,000 from 
     the Fund shall be made available to carry out the 
     requirements of this section, including up to $9,000,000 for 
     the Secretary of the Interior to carry out subsection (d), up 
     to $4,000,000 for the Director of the National Institutes of 
     Health to carry out subsection (e), and the remainder for the 
     Administrator of the Environmental Protection Agency, at 
     least $15,000,000 of which shall be used for the matching 
     grants under subsection (g).
       (i) Construction.--
       (1) Guidelines and protocols.--The guidelines and protocols 
     issued by the Administrator of the Environmental Protection 
     Agency under the specific authorities in subsections (a), 
     (b), and (c) shall be construed as nonbinding best practices 
     unless adopted as a mandatory requirement by a State or local 
     government. Notwithstanding the preceding sentence, 
     accreditation for testing will not be granted except in 
     accordance with the guidelines issued under subsection 
     (b)(2)(B).
       (2) Federal causes of action.--This section shall not be 
     construed as creating any new Federal cause of action for 
     civil, criminal, or punitive damages.
       (3) Federal claims.--This section shall not be construed as 
     creating any new Federal claim for injunctive or declaratory 
     relief against a State, local, or private party.
       (4) States and localities.-- Nothing in this section shall 
     limit the authority of States or localities concerning 
     naturally occurring asbestos.
  Mr. KENNEDY. Mr. President, I understand there is no time limit on 
speeches. Am I correct?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. KENNEDY. Many Senators on both sides of the aisle find the 
concept of a trust fund to compensate the victims of asbestos-related 
diseases appealing. I have consistently said that I would support a 
properly designed and adequately funded trust fund bill that would 
fairly compensate all the victims of asbestos-induced disease in a 
timely way. The problem is that S. 852 does not meet that standard. It 
is not properly designed and it is not adequately funded. Many 
seriously ill victims of asbestos disease are completely excluded from 
compensation under the fund. And the legislation does not even provide 
adequate revenue to ensure that all the victims who are eligible for 
compensation under the terms of the trust fund will actually receive 
what the legislation promises them. These are fundamental flaws that 
cannot be corrected by a few last minute amendments. They go to the 
heart of the bill.
  The problem is that powerful corporate interests responsible for the 
asbestos epidemic have fought throughout this process to escape full 
accountability for the harm they have inflicted. As a result, the focus 
has shifted from what these companies should pay victims to what they 
are willing to pay them. That is preventing the Senate from enacting 
trust fund legislation that will truly help the workers who have been 
seriously injured by this industrial plague.
  This legislation was constructed backwards. The first decision made 
was that the size of the trust fund could not exceed $140 billion over 
30 years. Why? Because that was all the corporations whose reckless 
conduct created the asbestos problem were willing to pay. The Asbestos 
Study Group, the chief lobbyists for this legislation, began this 
process by promising ``an evergreen fund'' that would provide as much 
money as necessary over time to fairly compensate the victims of 
asbestos disease. But they soon reneged on that commitment. Instead, 
these companies are now insisting on an absolute cap on their 
liability--no matter how many victims are suffering from asbestos-
induced disease or how serious their illnesses. Asbestos diseases take 
years, sometimes decades, to develop after the exposure to asbestos 
fibers. Thus, no one can say for sure how many victims there will be. 
The companies claim that they need financial certainty to plan for the 
future. What about the millions of victims of asbestos exposure who 
live every day under

[[Page S826]]

the cloud of asbestos disease? What about the ability of these workers 
and their families to plan for their future?
  Each year, more than 10,000 of them die from lung cancer and other 
diseases caused by asbestos. Each year, hundreds of thousands of them 
suffer from lung conditions which make breathing so difficult that they 
cannot function at all. Even more become unemployable due to their 
medical condition. And, because of the long latency period of these 
diseases, all of them live with fear of a premature death due to 
asbestos-induced disease. These are the real victims. Aren't they 
entitled to the certainty of knowing that, should the worst happen, 
they and their families will be fairly compensated? All S. 852 offers 
them is an inadequately funded trust fund that most experts believe 
will be insolvent within a few years.
  The real crisis which confronts us is not an ``asbestos litigation 
crisis,'' it is an asbestos-induced disease crisis. All too often, the 
tragedy these workers and their families are enduring becomes lost in a 
complex debate about the economic impact of asbestos litigation. We 
cannot allow that to happen. The litigation did not create these costs. 
Exposure to asbestos created them. They are the costs of medical care, 
the lost wages of incapacitated workers, and the cost of providing for 
the families of workers who died years before their time. Those costs 
are real. No legislative proposal can make them disappear. All 
legislation can do is shift those costs from one party to another. 
Unfortunately, S. 852 would shift more of the financial burden onto the 
backs of injured workers. That is unacceptable.
  Senators Specter and Leahy have devoted an enormous amount of time 
and effort to this asbestos trust fund legislation. They did not set 
the arbitrary $140 billion ceiling. The Republican leadership made 
clear that the trust fund could not exceed that amount regardless of 
the legitimate needs of asbestos victims. The sponsors were left with 
the unenviable task of deciding which worthy claims to exclude. As a 
result, the bill before us contains fundamental flaws, which make it 
both unfair and unworkable. It does not provide a reliable guarantee of 
just compensation to the enormous number of workers who are suffering 
from asbestos-induced disease.
  The argument that there are serious inadequacies in the way asbestos 
cases are adjudicated today does not mean that any legislation is 
better than the current system. Our first obligation is to do no harm. 
We should not be supporting legislation that excludes many seriously 
ill victims from receiving compensation and that fails to provide a 
guarantee of adequate funding to make sure that these injured workers 
covered by the trust fund will actually receive what the bill promises 
them. This bill will do harm to these asbestos victims.
  The list of serious flaws in S. 852 is, unfortunately, a long one. I 
will focus my remarks on several of the most egregious.
  Experts tell us that the asbestos trust created by this legislation 
is seriously underfunded. The funding plan in this bill relies on very 
substantial borrowing in the early years as the only way to pay the 
flood of claims. The result will be huge debt service costs over the 
life of the trust that could reduce the $140 billion intended to pay 
claims by as much as 40 percent. The amount remaining would be far too 
little to pay the claims of all of those who are entitled to 
compensation under the terms of the bill.
  In addition, there is a strong constitutional argument that the 
existing bankruptcy trusts cannot be forced to turn over all their 
assets, which will place $7.6 billion of the projected funding in 
jeopardy. Many companies are also likely to challenge their obligation 
to finance the asbestos trust. It is not at all clear how much money 
will actually be available to pay eligible victims what the legislation 
promises they will receive.
  There is likely to be a serious shortfall in the early years, when 
nearly 300,000 pending cases will be transferred to the trust for 
payment. Studies show the trust will not have the resources to pay 
those claims in a timely manner. Payments to critically ill people may 
be delayed for years.

  One way to reduce the enormous financial burden on the fund in the 
early years would be to leave many of those cases in the tort system, 
especially cases which were close to resolution. That would be fair to 
the parties in those cases and it would greatly improve the financial 
viability of the fund. Unfortunately, that proposal has been repeatedly 
rejected by the sponsors of the bill. As a result, there will be a 
serious mismatch between the number of claims the trust fund will face 
when its doors open and the payments coming into the fund. That will 
force major borrowing in the first 5 years. The debt service resulting 
from that borrowing will financially cripple the trust.
  In its August report, CBO recognizes the seriousness of this debt-
service problem, explaining:

       Because expenses would exceed revenues in many of the early 
     years of the fund's operations, the Administrator would need 
     to borrow funds to make up the shortfall. The interest cost 
     of this borrowing would add significantly to the long-term 
     costs faced by the fund and contributes to the possibility 
     that the fund might become insolvent.

  In a response to inquiries from Judiciary Committee members last 
week, CBO issued an even more dire warning about the likelihood of 
insolvency:

       There is a significant likelihood that the fund's revenues 
     would fall short of the amount needed to pay valid claims, as 
     well as debt-service and administrative costs. There is also 
     some likelihood that the fund's revenues would be sufficient 
     to meet those needs. The final outcome cannot be predicted 
     with great certainty. Without a substantial increase in the 
     resources available to the fund, there is no way to guarantee 
     that the fund will not either revert to the court system or 
     require additional funding.

  That statement should trouble every Senator on both sides of the 
aisle. There is ``a significant likelihood that the fund's revenues 
would fall short.'' While we may disagree on other issues regarding 
compensation for asbestos victims, each of us knows that it would be 
disastrous--for victims and businesses alike--to create a trust fund 
that cannot meet its financial commitment to victims and is destined 
for insolvency. None of us want to see that result. We cannot in good 
conscience ignore the warnings from the Congressional Budget Office and 
from other experts.
  In addition to the concerns CBO has identified, there are other major 
problems with S. 852 related to the projections of pending and future 
claims that could push the trust fund even further out of balance.
  For example, there has been a significant increase in the number of 
mesothelioma cases in recent years. The only known cause of 
mesothelioma is asbestos exposure. This new information suggests that 
the CBO cost estimate may understate the cost of the mesothelioma 
claims that the trust fund will incur by more than $15 billion. This is 
by no means the only instance where there is strong evidence to suggest 
that the number of eligible claimants will substantially exceed CBO 
estimates.
  If S. 852 is enacted, the U.S. Government will be making a commitment 
to compensate hundreds of thousands of seriously ill asbestos victims, 
but will not have ensured that adequate dollars are available to honor 
its commitment. That will precipitate a genuine asbestos crisis, and 
this Congress will bear the responsibility for it. Since the trust fund 
will be borrowing extensively from the U.S. Treasury in its first few 
years of operation; if it does become insolvent, there will be a direct 
impact on American taxpayers.
  The legislation before us would close the courthouse doors to 
asbestos victims on the day it passes, long before the trust fund will 
be able to pay their claims. Their cases will be stayed immediately. 
Seriously ill workers will be forced into a legal limbo for up to 2 
years. Their need for compensation to cover medical expenses and basic 
family necessities will remain, but they will have nowhere to turn for 
relief.
  Under the legislation, even exigent health claims currently pending 
in the courts will be automatically stayed for 9 months as of the date 
of enactment. An exigent health claim is one in which the victim has 
been diagnosed ``as being terminally ill from an asbestos-related 
illness and having a life expectancy of less than one year.''
  By definition, these cases all involve people who have less than a 
year to live due to mesothelioma or some other disease caused by 
asbestos exposure. Their cases would all be stayed

[[Page S827]]

for 9 months. Nine months is an eternity for someone with less than a 
year to live. Many of them will die without receiving either their day 
in court or compensation from the trust fund.
  The stay language is written so broadly that it would even stop all 
forward movement of a case in the court system. A trial about to begin 
would be halted. An appellate ruling about to be issued would be 
barred. Even the deposition of a dying witness could not be taken to 
preserve his testimony. The stay would deprive victims of their last 
chance at justice. I cannot believe that the authors of this bill 
intended such a harsh result, but that is what the legislation does.
  The bill does contain language allowing an ``offer of judgment'' to 
be made during the period of the stay in the hope of producing a 
settlement. However, this provision is unlikely to resolve many cases 
because it requires the agreement of the defendants. There is no 
incentive for defendants to agree to a settlement when the case has 
been stayed. Those who have tried cases know that it is only the 
imminence of judicial action which produces a settlement in most cases. 
Delay is the defendant's best ally; and under this bill, the case is at 
least delayed for 9 months and may never be allowed to resume if the 
fund becomes operational. If, however, these exigent cases were not 
stayed, and judicial proceedings could continue, there would be far 
more likelihood of cases settling under the offer of judgment process.
  I strongly believe that, at a minimum, all exigent cases should be 
exempted from the automatic stay in the legislation. Victims with less 
than a year to live certainly should be allowed to continue their cases 
in court uninterrupted until the trust fund became operational. Their 
ability to recover compensation in the court should not be halted until 
the trust fund is open for business and they are able to receive 
compensation from that fund. It is grossly unfair to leave these dying 
victims in a legal limbo. For them, the old adage is especially true--
justice delayed is justice denied.
  Under the legislation, defendants would receive a credit against what 
they must contribute to the trust fund for whatever payments they make 
to these dying victims; so they would not be ``paying twice,'' as some 
have claimed.
  Allowing the exigent cases to go forward in the courts without 
interruption is a matter of simple fairness. Staying the cases of 
victims who have less than a year to live is bureaucratic insensitivity 
at its worst. Most of these victims will not live to see the doors of 
the trust fund open.
  We should not deprive them of their last chance--their only chance--
to receive some measure of justice before asbestos-induced disease 
silences them. They should be allowed to receive compensation in their 
final months to ease their suffering. They should be allowed to die 
knowing that their families are financially provided for. S. 852 in its 
current form takes that last chance away from them.
  I intend to offer an amendment to allow these severely ill victims to 
have their day in court.
  The way the legislation is written, victims will lose out at the back 
end of the process as well, should the trust fund run out of money 
after several years of operation.
  If the trust fund does become insolvent, a very real possibility, 
workers will not have an automatic right to immediately return to the 
court system. The process outlined in the current bill could take 
years. Workers could end up trapped in the trust with reduced benefits 
and long delays in receiving their payments. There needs to be a clear, 
objective trigger--inability of the trust to pay a certain percentage 
of claims within a set period of time--that will automatically allow 
victims to pursue their claims in court if the trust runs out of money. 
The Judiciary Committee's 2003 legislation contained such a provision, 
but this bill does not. We cannot allow seriously injured workers with 
valid claims who are not paid in a timely manner by the trust to be 
denied their day in court. That would be a shameful injustice.
  The asbestos trust is being presented as an alternative source of 
compensation for victims suffering from asbestos-induced disease. If 
that alternative runs out of money and can no longer compensate those 
victims in a full and timely manner, their right to seek compensation 
through the judicial system should be immediately restored with no 
strings attached. No principle is more basic. Yet this bill violates 
that principle.
  I am particularly upset by the way lung cancer victims are treated in 
this bill. Under the medical criteria adopted by the Judiciary 
Committee overwhelmingly 2 years ago, all lung cancer victims who had 
at least 15 years of weighted exposure to asbestos were eligible to 
receive compensation from the fund. However, that was changed in S. 
852. Under this bill, lung cancer victims who have had very substantial 
exposure to asbestos over long periods of time are denied any 
compensation unless they can show asbestos scarring on their lungs. The 
committee heard expert medical testimony that prolonged asbestos 
exposure dramatically increases the probability that a person will get 
lung cancer even if they do not have scarring on their lungs. Deleting 
this category will deny compensation to more than 40,000 victims 
suffering with asbestos-related lung cancers. Under the legislation as 
now drafted, these victims are losing their right to go to court, but 
receiving nothing from the fund. How can any of us support such an 
unconscionable provision?
  Since we began considering asbestos legislation, no aspect has 
concerned me more than the treatment of lung cancer victims. My top 
priority has been to make sure that these severely ill workers receive 
just and fair compensation.
  And I have not been alone. A number of other Members have spoken out 
about the importance of adequately providing for lung cancer victims 
who have been exposed to substantial amounts of asbestos over long 
periods of time.
  Now we find that these victims, many of whom will have their lives 
cut short because of asbestos-induced disease, will not receive one 
penny in compensation from the trust fund. They are losing their right 
to go to court, but being denied any right to compensation under the 
fund. They are, in essence, being told to suffer in a legally imposed 
silence with no recourse whatsoever.
  One of the arguments we hear most frequently in favor of creating an 
asbestos trust fund is that in the current system, too much money goes 
to people who are not really sick and too little goes to those who are 
seriously ill. Well, lung cancer victims who have years of exposure to 
asbestos are the ones who are seriously ill. They are the ones this 
legislation is supposed to be helping. Yet they are being completely 
excluded.
  The committee heard extensive testimony from distinguished medical 
experts--Dr. Laura Welsh and Dr. Philip Landrigan--that prolonged 
exposure to asbestos can cause lung cancer even if the victim does not 
also have markers of nonmalignant asbestos disease. They cited numerous 
medical authorities supporting their position. They even described 
treating lung cancer victims whose disease was clearly caused by 
asbestos but who had neither pleural thickening or asbestosis.
  In a situation where people are undeniably severely ill and 
undeniably had 15 or more years of weighted exposure to asbestos, it is 
wrong to completely exclude them from compensation under the trust 
fund. Some of the proponents of S. 852 have attempted to justify 
excluding them by claiming that smoking probably caused their lung 
cancers. But, the evidence refutes this contention.
  First, even those lung cancer victims with 15 or more weighted years 
of exposure to asbestos who had never smoked were removed from 
eligibility for compensation under the trust fund. So this is about 
more than just the relationship between asbestos and smoking.
  Second, regarding the smoking issue, Dr. Landrigan testified that 
smokers who have substantial exposure to asbestos have 55 times the 
background risk of developing lung cancer, while smokers who were not 
exposed to asbestos have 10 times the background risk of developing 
lung cancer. Clearly, the asbestos exposure makes a huge difference.
  There is a powerful synergistic effect between asbestos and tobacco 
in the

[[Page S828]]

causation of lung cancer. Both are substantial contributing factors to 
the disease. The smoker with substantial asbestos exposure should 
receive less compensation from the trust fund than the nonsmoker with 
lung cancer. That principle appears throughout the bill. But smoking is 
not a reason to exclude the smoker from all compensation.
  Without prolonged exposure to asbestos, the smoker would have been 
far less likely to contract lung cancer. It is a gross injustice to 
completely exclude these severely ill workers.
  Any person who was exposed to asbestos for 15 or more weighted years 
and now has lung cancer should be eligible for compensation from the 
trust fund. It would not be automatic. Their cases would be reviewed 
individually by a panel of physicians to determine whether asbestos was 
a ``substantial contributing factor'' to their lung cancer. These 
40,000 victims of asbestos should not be arbitrarily excluded from 
receiving compensation. They were included in the original legislation, 
it was agreed to by medical experts for both business and labor, and 
that provision should be restored to the bill. I will be proposing an 
amendment to rectify this serious injustice.
  This bill also tampers with the agreed-upon medical criteria 
carefully negotiated between representatives of business and labor by 
raising the standard of proof for each disease category. The language 
in S. 852 requires the workers to prove that asbestos was ``a 
substantial contributing factor'' to their disease, instead of just ``a 
contributing factor.'' This is a major increase in the burden workers 
must overcome to receive compensation. It is significantly higher than 
most states currently require in a court of law. Rather than having to 
show that asbestos exposure contributed to their illness, they will now 
have to address the relative impact of asbestos and other potential 
factors. This change is a serious step in the wrong direction, raising 
the bar even higher on injured workers.
  Another major shortcoming of this legislation is its failure to 
compensate the residents of areas that have experienced large-scale 
asbestos contamination. S. 852 simply pretends that this problem does 
not exist. It fails to compensate the victims of all asbestos-induced 
diseases, other than mesothelioma, whose exposure was not directly tied 
to their work. There is very substantial scientific evidence showing 
that the men, women and children who lived in the vicinity of asbestos-
contaminated sites, such mining operations and processing plants, can 
and do contract asbestos-induced disease.
  The reason that this legislation needs a special provision to 
compensate the residents of Libby, MT, is because it does not 
compensate victims of community contamination generally. The residents 
of Libby are certainly entitled to compensation, but so are the 
residents who lived near the many processing plants from Massachusetts 
to California that received the lethal ore from the Libby mine. The 
deadly dust from Libby, MT, was spread across America. W.R. Grace 
shipped almost 10 billion pounds of Libby ore to its processing 
facilities between the 1960s and the mid 1990s. One of the places it 
was shipped was to the town of Easthampton, MA, where the operations of 
an expanding plant spread the asbestos to the surrounding environment, 
into the air and onto the soil. I intend to discuss this problem in 
great detail as the debate moves forward.
  I raise it now as a dramatic example of one of the major injustices 
caused by the arbitrary exclusion of a large number of asbestos victims 
from compensation under the trust fund. Nor is the problem of community 
contamination limited to the sites receiving ore from Libby. Community 
asbestos contamination can result from many different sources. For 
example, medical experts believe it may result from exposure to 
asbestos after the collapse of the World Trade Center. Because of the 
long latency period, we often do not learn about community asbestos 
contamination until long after it occurs. Certainly these victims of 
asbestos are entitled to fair treatment as well. They should not be 
arbitrarily excluded from compensation as if their suffering is somehow 
less worthy of recognition than the suffering of other asbestos 
victims. Yet that is what S. 852 does.
  This is a bill that shifts more of the financial burden of asbestos-
induced disease to injured workers by unfairly and arbitrarily limiting 
the liability of defendants. It does not establish a fair and reliable 
system that will compensate all those who are seriously ill due to 
asbestos. It lacks a dependable funding stream which can ensure that 
all who are entitled to compensation actually receive full and timely 
payment. These are very basic shortcomings.
  We cannot allow what justice requires to be limited by what the 
wrongdoers are willing to pay. I intend to vote no and I urge my 
colleagues to do the same.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Graham). The Senator from Utah.
  Mr. HATCH. Mr. President, I rise today to speak in favor of S. 852, 
the bipartisan Fairness in Asbestos Injury Resolution Act of 2005. I 
commend the majority leader and Chairman Specter and Senator Leahy for 
seizing the bull by the horns and proceeding with this vitally 
important litigation. And it is bipartisan legislation.
  Make no mistake about this--this bill is not perfect. There are some 
things in the act that I wish were different, but that is the nature of 
the legislative process. It is about compromise and negotiation.
  In a moment, I will speak to specific aspects of this bill. But 
before I do, I would like to take a moment to respond to some of the 
allegations that my colleagues made on the floor yesterday.
  Some of them spoke of corruption. They spoke of undue influence 
wielded by lobbyists. And they spoke of fairness.
  The truth is, this legislation is badly needed. Personal injury 
lawyers--some personal injury lawyers--are profiting at the expense of 
asbestos victims and manufacturers alike.
  This bill is about fairness, justice, and certainty. It has become a 
bill that has tried to do away with fraud because this situation is 
fraught with fraud--fraud on American businesses, fraud on American 
consumers, and, more importantly, fraud on asbestos victims.
  Let me tell you what this bill does. This bill provides real 
compensation to real victims with real injuries. This bill stops a 
rampaging personal injury trial bar. This bill fixes a broken legal 
system that benefits personal injury lawyers at the expense of asbestos 
victims. And this bill provides certainty to everyone involved.
  Some of my colleagues on the other side have called S. 852 special 
interest legislation. If helping sick people and preventing fraud 
constitutes special interest action, then maybe they could get away 
with that charge. But I am very proud--and I think anybody who supports 
this bill would be proud--to support legislation that assists those 
special interests.
  I ask my colleagues: Do you know who opposes this bill? It is the 
personal injury lawyers involved. They are a small cadre of the total 
number of American Trial Lawyers Association members. These trial 
lawyers have fought this legislation the same way the old gunslingers 
fought the law in the Wild West. Some of my colleagues have spoken of 
bragging lobbyists. The only people I have ever heard bragging about 
the scams that are going on are some of these personal injury lawyers.
  Do you know when I heard them bragging? Last Congress, when we failed 
to invoke cloture on this bill's predecessor. It was not lobbyists or 
manufacturers or asbestos victims who were having some celebratory 
steak and champagne dinners in 2004; it was the personal injury 
lawyers. Why would they celebrate? They were celebrating because they 
successfully preserved their 40-percent payout on massive class action 
lawsuits and the exorbitant transaction costs that raise the amounts 
taken from victims to almost 60 percent, with only about 40 percent 
given to the victims. They were celebrating because their meal ticket 
was not taken away from them. Not this time.
  Before I continue, I wish to point out not all personal injury 
lawyers are bad, certainly not all trial lawyers. I was a trial lawyer 
in my younger days. I know most of them are good people with good 
intentions. However, as they say, it only takes one bad apple to spoil 
the whole bushel.

[[Page S829]]

  We face an asbestos litigation crisis of unparalleled magnitude. Real 
asbestos victims with horrific injuries are receiving pennies on the 
dollar, while people who are not sick, or at least their lawyers, are 
receiving millions of dollars. American companies, businesses both 
large and small, many of which never produced or used asbestos fibers, 
are being forced into bankruptcy by fraudulent lawsuits. These 
bankruptcies hurt all Americans. Pensions are destroyed, jobs are lost, 
and all because our current legal system is vulnerable to unscrupulous 
trial lawyers. We have had the Supreme Court ask the Congress three 
times to weigh in on this and stop this mess from continuing. That is 
what we are trying to do with this bill.
  According to the RAND Institute for Civil Justice, the asbestos 
crisis has been called the worst occupational health disaster in U.S. 
history. The personal injury bar has compounded that disaster by filing 
countless meritless claims that deprive the truly injured of their just 
and deserved compensation. The RAND Institute has found that 
approximately 730,000 people have filed asbestos claims through 2002. 
Despite the fact that asbestos claims should decrease each year due to 
OSHA and, to some extent, EPA actions in the 1970s and 1980s which 
severely curtailed national asbestos exposure, we have seen a 
significant increase in the number of claims, particularly nonmalignant 
claims, during the last 15 years. It is a gravy train for some of these 
lawyers. That does not dismiss the fact that there are people who are 
hurt by this, many of whom are not going to get a dime because a large 
number of their companies are bankrupt.
  The large number of claims--expected to burgeon to the million-plus 
mark in the not-so-distant future--has resulted in 77 bankruptcies, the 
loss of some 60,000 jobs, or workers' privileges, and the depletion of 
countless pension programs. Moreover, due to the nature and number of 
these claims, compensation for the truly ill is often arbitrary and 
inequitable. According to the RAND Institute study, only 42 cents of 
every dollar spent on asbestos litigation actually goes to the asbestos 
victims; 31 cents goes to defense costs, and 27 cents goes to 
plaintiffs' attorneys. The situation becomes all the more deplorable 
when one factors in the ghastly specter of fraud. One study has shown 
that 41 percent of audited claims of alleged asbestosis or pleural 
disease were found to have either no disease or a less severe disease 
than alleged by the personal injury experts. That is simply 
unacceptable. We are trying to solve that problem.
  At present there are more than 300,000 asbestos-related claims 
pending before this Nation's courts. Company after company has plunged 
into bankruptcy with disastrous results. Some victims have gone without 
compensation and many have nowhere to turn. Thousands have lost their 
jobs. The only winners in most cases are the personal injury lawyers. 
Asbestos trial lawyers have pulled in over $20 billion in attorney's 
fees. One actuarial firm estimates that personal injury lawyers are 
expected to filch another $40 billion before they run out of victims. I 
don't have any problem with lawyers getting contingent fees for 
legitimate cases. I don't have any problem with that. But the fact is, 
many of these cases are not legitimate. It is time to make a choice. 
That choice is between private jets for trial lawyers and meaningful 
compensation for asbestos victims.
  Before I move on to the operational aspects of this legislation, I 
wish to take a moment to talk about the victims of asbestos exposure. 
Unfortunately, veterans comprise a large percentage of this group. I 
wish to make a plea on their behalf. This may be the last chance to 
help the men and women who served this country with such distinction 
and who, as a result of that service, were exposed to asbestos fibers. 
Time is rapidly running out for this group and many, if not most, of 
the companies they could turn to are now bankrupt, mainly because of 
these lawsuits. Even if they are not bankrupt, lawsuits take so much 
time and the verdicts are so uncertain that many will be cheated out of 
their just compensation. Even if some of these fine men and women 
manage to obtain a verdict against a company with sufficient assets to 
make good on the obligation, about 58 percent of the award would be 
consumed not by the victim but by trial lawyers. That is plain wrong.

  Let me tell you how this bill works. S. 852 will compensate 
legitimate asbestos victims in a timely fashion on a no-fault basis. 
They are not going to have to go to court to prove their case. 
Claimants must demonstrate they meet certain medical criteria--and 
those criteria were agreed on in a bipartisan agreement--but once that 
threshold showing has been made, thereby assuring that only the truly 
sick are compensated, the claimants will receive timely compensation 
based upon the nature of the injury.
  Some of my colleagues asserted that all claimants under this bill 
obtain a one-size-fits-all settlement if they meet the medical criteria 
requirements. As Chairman Specter has pointed out, that is plain wrong. 
There are nine tiers and corresponding awards under this bill, and it 
allows for further compensation if the condition worsens, meaning if a 
claimant had a level 2 injury that later developed into a level 8 
injury or more serious injury, that individual can obtain compensation 
up to the level 8 or more serious tier. That makes sense to me.
  It is worth pointing out that in addition to providing a no-fault and 
timely compensation system, the FAIR Act provides certainty to asbestos 
victims by taking away the whims of juries and the avarice of some of 
these personal injury lawyers. Under this bill, if you are sick, you 
will be compensated. Furthermore, this bill promotes economic stability 
and preserves jobs by taking the uncertain burden of direct and 
residual asbestos liability away from manufacturers, insurers, and 
others, and levying a measurable, known, and beneficial sum that will 
help those truly in need. In other words, they will have to pay, but it 
will be done on a reasonable, decent basis, so that those who are 
suffering will get paid in the end, where many of them will not under 
the current system.
  For the victims, it provides meaningful compensation in a relatively 
short order. It is no-fault compensation for them. For the 
manufacturers and other defendant entities, it removes the parasitic 
personal injury bar from the picture and assures that asbestos dollars 
reach asbestos victims.
  Finally, this bill contains an asbestos ban that will help lower 
asbestos exposure beyond what OSHA has achieved.
  I was surprised to hear some opponents of this bill say S. 852 is not 
ready, that any action on this measure would be premature. Frankly, I 
am somewhat shocked by this. I will not go into the full history of the 
bill. In fact, I will limit my discussion of its development to the 
107th Congress and beyond. But I must note that efforts in this area 
predate my efforts and the efforts of then-Chairman Leahy in the 107th 
Congress.
  Now with tremendous effort, Chairman Specter and Ranking Member Leahy 
have worked this through in a way that has greatly improved what we 
were trying to do back then. The Judiciary Committee has held at least 
a half dozen hearings on asbestos issues, and we have held several 
exhaustive markups over the years. In addition, I note that Chief Judge 
Emeritus of the Third Circuit, Edward R. Becker, and now-Chairman 
Specter held at least 36 meetings with stakeholders to reach the 
compromise before us. This was a monumental effort by Senator Specter 
and Former Chief Judge Edward R. Becker. I just saw Chief Judge Becker 
over in the Dirksen Building. I know the sacrifices he has made to try 
and help us on this matter. And to have this bill called special 
interest legislation, when we have had people such as Judge Becker work 
out these details by meeting with all concerned, including the trial 
lawyers, including businesses and individuals and groups and so forth, 
I don't know when anybody has made such an effort as both Chairman 
Specter and Judge Becker.
  We are currently on the third asbestos bill since the beginning of 
the 108th Congress. We have moved from S. 1125, which was the subject 
of a 4-day markup over 2 months, to S. 2290, to S. 852. Finally, after 
a 6-day markup, which also spanned 2 full months, the Judiciary 
Committee reported the current bill with a bipartisan 13-to-5 vote. 
That doesn't sound like special interest legislation to me. And it 
isn't.

[[Page S830]]

  With that in mind, it is hard to understand how opponents of this 
bill can claim with a straight face that this bill is not ready for 
consideration by the full Senate. That is ridiculous. Can it be 
amended? Surely. That is why we debate. Can we change aspects of it? 
Surely. That is why we debate. That is why we have this debate on the 
floor, if we are ever allowed to debate it.
  This brings me to some of the outstanding criticisms of this 
legislation. First, we have heard it hurts small businesses. Since it 
is unclear to me what the deleterious effects on small business may be, 
I find it difficult to even spend time trying to refute those types of 
baseless charges. I would ask my colleagues who hold this belief to 
expound upon the allegation so we can better understand their concerns. 
However, before they do so, I ask my colleagues to look at the small 
business exception contained within S. 852, specifically section 204(b) 
of this act. Small businesses do not have to contribute to the fund 
while at the same time they receive its benefits. I have a hard time 
understanding why this is bad for small businesses. After all, they do 
get something for nothing.
  The next major objection focuses on the removal of pending cases from 
court. Such action is unfair, they say. Well, I am puzzled by this 
assertion as well. First, cases that have proceeded to the evidentiary 
stage of the trial are not touched by this act. Secondly, the 
underlying premise of this bill focuses on two things: one, the 
uncertainty of jury trials and the ability of defendants to pay; two, 
the parasitical impact some of these voracious trial lawyers have on 
the process. This bill will provide certainty to the process, ensure 
those who have been injured will receive compensation, and make sure 
compensation so awarded goes to the victims and not to the trial bar in 
such dimensions as we have had so far. In fact, the trial bar will be 
entitled to fees under this bill; they just won't be as high because 
the proof is a no-fault proof. It is like rolling off a log. I ask my 
colleagues, how is that unfair?
  The next assertion focuses on the amount of the trust fund. It is not 
enough to say it is not enough. That is what they say. To that I say, 
the CBO seems to think the amount falls within the estimated range of 
claims and, further, that this amount was agreed upon by Majority 
Leader Frist and then-Minority Leader Daschle after extensive 
negotiation. Overall, it would seem some Members on the other side of 
the aisle want to prevent us from proceeding to this bill. While I am 
not surprised by obstructive tactics--we have seen them before; I saw a 
good deal of them during the last Congress and I know enough to be able 
to say with confidence that what looks like a duck and quacks like a 
duck is, in fact, a duck--it is obstruction. Why can't we debate this 
bill up and down? Why don't we get into it? If we have legitimate 
objections, I am sure the distinguished chairman and ranking member 
will consider them. That is why we debate these things. I am 
nonetheless disturbed by the tactics of some on the other side, given 
the tremendous importance of this legislation to our country.
  As I say, the Supreme Court no less than three times asked us to do 
this--or at least to find some solution to this massive litigation 
crisis that is clogging our courts, hurting the country, and costing 
everybody an arm and a leg, without doing the justice to victims that 
this bill will do.
  It is troubling when we consider that without the FAIR Act, more and 
more Americans are certain to lose their jobs, and more and more 
victims of asbestos exposure will go without compensation. This all 
goes to show that personal injury lawyers are a powerful force, and 
some on the other side of the aisle are willing to hear the voice of 
the personal injury bar over the voices of hard-working Americans who 
want to keep their jobs and pensions. Don't tell me about special 
interest legislation. We all know what special interest is driving the 
opponents of this bill.
  The fact is that this bill continues to create a fair and efficient 
alternative compensation system to resolve the claims for injury caused 
by asbestos exposure. The fund is capitalized through private 
contributions from defendants and insurers, not the Government, and 
compensates victims under medical criteria that we reached on a 
bipartisan basis. I thought once we got the medical criteria, this bill 
should go forward. We had a lot of people on both sides saying they 
want to support it. Now we are here, and this is the chance to do it. 
If you don't like it, file amendments. I am sure the distinguished 
chairman and ranking member will give consideration to the amendments. 
The bill brings uniformity and rationality to a broken system so that 
resources are more effectively directed toward those who are truly 
sick.
  I know the last asbestos bill contained no fewer than 53 compromise 
measures demanded by the Democrats last year. Moreover, I know this 
bill contains many more. Chairman Specter and Ranking Minority Member 
Leahy are still working with the labor unions and others to improve the 
bill. This bill did not sneak up on anybody. It is not the instrument 
of a wayward group of influential lobbyists. The bipartisan FAIR Act is 
the product of years of negotiation and hard work--bipartisan people 
who are interested in solving problems, not creating them.
  Not only does this bill guarantee fair compensation to victims, it 
guarantees faster and more certain compensation at that. We anticipate 
that claimants will not have to endure years of discovery battles and 
endless litigation before they get paid. Currently, whether some 
victims get paid depends on the solvency of businesses. But under the 
FAIR Act, these victims will no longer have to go without payment. It 
is time to end the current system of jackpot justice, where only some 
win and many lose.
  Let me mention one group--the mesothelioma victims. Most of them have 
no chance at being fairly compensated because they work for companies 
that are now bankrupt. This bill takes care of them and helps them with 
their problem. Given that this bill is a clear net monetary gain for 
legitimate victims and provides payments faster and with more 
certainty, I am at a loss as to why anybody would object to this bill 
or object to a full and fair debate and a vote up or down. Quite 
frankly, the only entities that stands to lose under this bill are a 
handful of personal injury lawyers who have guzzled more than $20 
billion of the costs incurred on this issue as of the end of last year. 
If the improved FAIR Act is passed, they will not be able to leverage 
unimpaired claims to squeeze a projected $40 billion more for 
themselves from remotely connected companies by abusing a broken 
system.
  I support compensating attorneys for the value of their work, no 
question. Honest lawyers deserve to be paid. But when the lawyers get 
rich while diverting valuable resources away from sick victims and to 
people who are not victims, people who don't deserve compensation, 
which is going on here, something is wrong with the system. But you 
don't need me to tell you this; the Supreme Court, think tanks, and 
other nonpartisan commentators have been saying it for years.
  We have a serious problem on our hands which demands this body's full 
attention. I applaud our majority leader, the chairman of the Judiciary 
Committee, Senator Specter, and his ranking member, Senator Leahy, for 
bringing this bill to the floor. The time to act is now. I would like 
to see us go forward in a legitimate, honest way to try to solve these 
problems. If people on either side have objections to the bill or have 
a reason to try to change it, they can bring amendments forward, and 
let's battle it out. The chairman has been very open to accepting good 
ideas. He has consistently done that throughout this process. I don't 
think anybody can find fault with our chairman for the way he has 
operated on this bill and how hard he has worked.
  We have studied this asbestos problem at length, for decades. We have 
held numerous hearings, considered legislative proposals, and even 
underwent several marathon markups in the Judiciary Committee over the 
years. To the extent there are issues that remain unresolved, we can 
openly debate them on the floor of the Senate.
  The time has come to stop talking about doing something and take 
decisive action. Every day that passes is a day we withhold meaningful 
recovery to truly sick victims. Every day that passes is a day in which 
hard-working Americans at companies that had little

[[Page S831]]

or nothing to do with asbestos face decreased pensions and an uncertain 
employment future. Every day that passes is a day that we deny 
consideration of a comprehensive solution to one of the most plaguing 
civil justice issues of our time.
  This is step one. If we can get a bill out of the Senate, this would 
move forward so fast. The House would have to come up with its 
legislation, and we would then go to conference. I have no doubt, 
having watched the chairman and ranking member, that they would be 
working in good faith to try to accommodate and please all legitimate 
points of view on these very profound and difficult issues. I 
compliment them one more time. These folks deserve that we debate this 
bill fully, that we have a vote up or down on the bill in the end, and 
that we go through this process and hopefully continue to improve the 
legislation so that we can do justice in our society.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. DURBIN. Mr. President, first, let me acknowledge the obvious. A 
lot of work has gone into this bill. Senator Specter, Senator Leahy, 
and members of the Judiciary Committee, including Senator Hatch, have 
spent hours, days, weeks, and months preparing this bill. It is a bill 
that should have taken a long time because it is a bill that says 
something very basic and fundamental and, in many ways, revolutionary: 
It says we can no longer trust the court system in America. It says the 
court system is inadequate in America to compensate victims. That is a 
charge not made lightly, I am sure, by the sponsor of this legislation. 
It is one we should not take lightly on the floor of the Senate because 
we have established over the course of this Nation's history some 
things which are generally accepted by most Americans.
  It is true that Congress and legislatures write the law. The 
President and executive branch enforce it. And when it comes to making 
decisions of how that law applies to our lives, we trust the courts. 
The decision has been made by those who are pushing this bill that we 
can no longer trust the courts. The decision has been made that we have 
to replace our court system with something else. If we are going to 
step away from a time-honored institution and tradition in America to 
create an alternative, it is a daunting task.
  Those of us who have been critical of this legislation are going to 
hold the sponsors to some very fundamental questions. The first: Can 
you provide the same level of fairness and compensation in your new 
system that the courts of America provide today? The answer can be 
found in responses from victims groups around the country. The victims 
of asbestos have been writing to Members of Congress saying: Don't pass 
this legislation. The compensation you will give to the victims and 
their families is inadequate and unpredictable. Those families have 
come to see me. They have heartbreaking stories--stories of young men 
and young women whose lives were snuffed out because of exposure to 
asbestos. In not a single case have I ever met somebody who said: I 
guess I knew I had it coming to me; I decided to expose myself to 
asbestos. I never ran into a person like that or heard a story like 
that.
  The victims of asbestos are as surprised by the diagnosis as they can 
be. It is no surprise to us when we consider this insidious disease. 
These flaky fibers which are breathed into the lungs can sit there like 
a timebomb for decades. Do you recall the movie actor named Steve 
McQueen? He died from mesothelioma. He was exposed to asbestos at some 
point in his life, which later exploded into a fatal lung disease. 
Earlier this week on the floor, I talked about my former colleague, 
Bruce Vento, of Minnesota, a Congressman from St. Paul. He was a 
picture of health and was in the gym every morning, and then he didn't 
feel well. He went to the doctor, and after a chest x-ray, they said: 
You were somehow in your life exposed to asbestos. Now you have 
mesothelioma and just months to live.
  Those stories are repeated over and over again about men who worked 
in asbestos mines who got off scot-free and never developed a problem, 
but their wives at home, who shook out their work clothes before 
putting them into the washer, breathed in the fibers and contracted 
asbestosis and mesothelioma and died. It is insidious.
  I could spend more than an hour telling you that, since 1934, the 
companies which have been creating asbestos products have known how 
dangerous this product is. I could, and maybe I will at some point, go 
through the extensive evidence of deception and cover-up by these 
companies so that their employees did not understand the serious 
dangers they were exposed to in the workplace, and the dangers that 
many of them took home in their work clothes. These victims and their 
families come to visit me--lovely young women from the Chicago suburbs 
with beautiful children, and they show pictures of families whose 
husbands were lost in their early forties to mesothelioma.
  This bill says that compensation for victims of asbestos is capped at 
$1.1 million. If you happen to be a mesothelioma victim, that's only 
$1.1 million for medical bills, lost wages, and to raise children. That 
is a figure which might have sounded pretty large to start with, but it 
begins to be very modest when you look at individual victims and their 
families. That is why the victims have come to us and said: Don't 
replace the court system in America with this approach. It is not fair 
to the victims.
  Others have come to us as well and said that the way you put the 
money into the trust fund, which is supposed to pay the victims, is a 
mystery. We have repeatedly asked the chairman of the Judiciary 
Committee who is the sponsor of the legislation, to provide us with the 
documentation. Please show us how $140 billion will adequately 
compensate the victims of asbestos exposure over the 50-year life span 
of this bill. We are still waiting for the information. So we are going 
to replace the court system with a trust fund. We are going to say that 
$140 billion will be enough for 50 years, without any evidence of how 
that number was arrived at or whether that number will really meet the 
needs of the victims. I will speak in a few moments about those experts 
who have analyzed this bill and found that the numbers underlying the 
assumptions are totally wrong.
  Another group that comes to us to discuss this bill are those being 
asked to pay into the trust fund that will be created by this bill. The 
argument has been made on the floor, thank goodness, that the taxpayers 
won't have to pay into this. These will be businesses and insurance 
companies which will put money in the trust fund so they don't have to 
pay out asbestos claims any longer in court. Well, it turns out that 
some businesses will do quite well. Some of them are going to receive a 
windfall in terms of what they have put into this fund as opposed to 
what they might pay in court.
  U.S. Gypsum is a company that has a large legal exposure for 
asbestos. Because of corporate reports they made public in the last 
couple of weeks, we now know that, in order for the company to pay out 
all the existing claims filed against USG by victims of asbestos, they 
estimate it will cost them in the range of $4 billion. This chart is an 
excerpt of an article from BusinessWeek dated January 27, 2006, which 
says, USG is willing to cough up $4 billion to settle victims' claims. 
That is $4 billion of asbestos exposure for this one corporation. So if 
they didn't pay that amount in court settlements, and instead came into 
this bill, what would they pay into this trust fund? That figure is 
$900 million, according to USG's own corporate report.
  This is a windfall. They have to be smiling and praying this bill is 
going to pass because if it does, the company is off the hook for over 
$3 billion of legal liability that they even admit to in court. And who 
will make up the difference? Who is going to make up the $3.1 billion 
this company should be paying the victims? Other companies. Companies 
that may never have had many lawsuits filed against them because of 
asbestos, and companies that have never paid out a penny in terms of 
asbestos claims, even if they were sued. These smaller companies will 
be expected to pay millions and millions of dollars into this trust 
fund when larger companies are walking away with a windfall.
  So we asked again to the sponsor of this legislation: If you cannot 
tell us how you arrived at the figure of $140

[[Page S832]]

billion, can you at least give us the names of the companies and how 
much they are expected to contribute into this trust fund? And we are 
still waiting.
  The chairman spoke yesterday about how he was going to subpoena these 
records. I hope they will be produced during the course of this debate. 
I hope we will have a list of all the businesses with----
  Mr. SPECTER. Mr. President, will the Senator from Illinois yield for 
a question?
  Mr. DURBIN. I will be happy to yield.
  Mr. SPECTER. Is the Senator from Illinois aware of the fact that the 
Judiciary Committee, on which he serves, issued a subpoena and has the 
names of the companies that are going to be contributing to the trust 
fund.
  Mr. DURBIN. I know the chairman made that statement yesterday, and I 
am hoping he will share that information.
  Mr. SPECTER. Mr. President, I am advised by staff, since I posed the 
question, in a note to the effect that Senator Durbin's staff did come 
to look at the list. Is the Senator from Illinois aware of that?
  Mr. DURBIN. May I respond to the chairman by stating that I 
understand this information on the list has been characterized as 
confidential information before the committee and cannot be shared 
publicly.
  Mr. SPECTER. The pending question--and I will be glad to answer his--
is, Does the Senator from Illinois know that his staff came to look at 
the list?
  Mr. DURBIN. I am aware of the fact they reviewed it, but I am also 
aware of the fact this has not been made public as part of this 
conversation and part of this record.
  Mr. SPECTER. Mr. President, with all due respect, the issue isn't 
whether it has been made public, the issue is whether it is in 
existence, and the issue beyond being in existence is whether it is 
available to Members who have to vote on the bill. So when the Senator 
from Illinois asserts that you don't know who is making contributions, 
it is simply not so.
  The issue of confidentiality is true. It has been raised by the 
companies because they are concerned that if it is disclosed how much 
they have contributed or are proposing to contribute that they may be 
targets for more litigation.
  I don't wish to interrupt the Senator from Illinois further. I simply 
wish to make the point that he is wrong when he says we don't know who 
is going to contribute the money, and his own staffer has taken a look 
at the list.
  Mr. DURBIN. Let me respond, if I may. Why is this cloaked in secrecy? 
Why is this a secret conversation? How can we have confidence that the 
$140 billion figure has any validity? How can we have confidence that 
the businesses that will be called on are going to be able to 
contribute to this fund if this is cloaked in secrecy and 
confidentiality? Most of these lawsuits are open, public record. It is 
hard for me to imagine that a business is going to be sued because 
someone has identified them as a potential contributor to this trust 
fund.
  Nevertheless, if we are expected to replace the court system in 
America with this new trust fund system, how can we do it with any 
confidence if all the information is not on the table? Why the secrecy? 
What are we concealing? What we are concealing, frankly, is the most 
controversial elements of this bill: a question of whether $140 billion 
will actually pay the victims--and I doubt that it will--a question of 
whether companies are going to be asked to pay into this trust fund who 
shouldn't be asked to pay into the trust fund and, subsequently, may be 
forced into bankruptcy, closing their doors because of it. These are 
questions of great moment. To say a staff person can have access to 
secret files in an office hardly gives any comfort in the midst of a 
public debate about an issue of this magnitude.
  Mr. SPECTER. Mr. President, will the Senator from Illinois yield 
further?
  Mr. DURBIN. I will yield for a question.
  Mr. SPECTER. Is the Senator from Illinois aware, putting it in the 
form of a question, that he has made a shift in positions, first 
asserting that we don't know who is going to contribute the money, then 
finding out that we do know who is going to contribute the money, that, 
in fact, his staffer has looked at that list, and he is now raising a 
different issue as to what is the need for secrecy?
  That is not the point about which I raised the question. When he 
talks about litigation, there are many confidential matters in 
litigation which remain confidential on a showing of cause. So my 
question to the Senator from Illinois is, does he realize that he has 
shifted his position from objecting to the status where nobody knows 
who is contributing, changing to why the reason for the secrecy?
  Mr. DURBIN. I say to the Senator from Pennsylvania----

  Mr. SPECTER. As a couple of experienced trial lawyers and debaters, 
or at least he is an experienced trial lawyer and debater.
  Mr. DURBIN. As the Senator from Pennsylvania is as well. In response, 
unless and until we put this information out to be reviewed in a 
comprehensive and honest way, I don't believe we can stand before the 
American people and say this is a good replacement for the courts of 
America.
  Let me tell the Senator what happened. A member of my staff was 
invited to the Senator's office to view the secret list. He was warned 
ahead of time not to take any notes, not to make any copies, and not to 
disclose the nature and substance of the secret list because they were 
treated as committee confidential. My staffer went to view the list and 
reported to me the information wasn't very helpful in answering the 
most basic questions about the companies, their liability, and, of 
course, the impact on each company and whether they can survive the 
contributions to the trust fund.
  Under the committee confidential rule the chairman has imposed on all 
staff members reviewing this list, I am not sure I can say much more 
about this secret list on the floor, but I will say this is a highly 
unusual process to have secret lists, secret information, and 
confidentiality, when we are literally talking about people's lives and 
health. I don't think the Senator can come forward and meet his burden 
of proof, to go back to the language of trial lawyers, that we should 
replace the court system in America based on secret lists kept in his 
office. That strikes me as a far cry from the kind of public debate 
which we should invite for this bill.
  Mr. SPECTER. Mr. President, will the Senator yield further for a 
question?
  Mr. DURBIN. I have been more than happy to yield, and I will continue 
to yield.
  Mr. SPECTER. How can the Senator call it a secret list when it is 
available for his inspection?
  Mr. DURBIN. I say to the Senator, when he makes it available for the 
inspection of all Members and the American people, it is no longer a 
secret list. Mr. President, is the Senator prepared to do that? That is 
my question, without yielding the floor to the Senator.
  Mr. SPECTER. I will review the matter with the view to see if we can 
make it public. I am open to any modification which is reasonable. I am 
not bound by any protocol, and I will go back to the providers of the 
list to see if it can be made available. But when the Senator from 
Illinois asserts that it is secret, he is simply wrong. It is not 
secret. He can look at it. I think he raises a good point when he says 
that nobody can make a copy of it.
  Offhand, on horseback, on one foot, I think staffers should be able 
to make a copy of it. Take the copy and show it to the Senator. I think 
that is reasonable, with the agreement of the staffer and the Senator 
that if we decide to retain the confidentiality, they will respect 
that. I trust Senator Durbin and I trust his staff to honor 
confidentiality if we stick with it.
  As I say, I will review that as well. But Senator Durbin has to make 
a decision. I am sure Senator Durbin has an open mind on this question. 
Now that I reflect on it, I am not so sure he does have an open mind on 
this question, and he doesn't have to have an open mind on this 
question. I think he raises a good point when he says we ought to know 
who contributes the money. I raised hell to get the information and 
finally had to raise a subpoena to get the information. We have it so 
that it is available for those who have to make a decision.

[[Page S833]]

  When he carries the point further that he would like to see it made 
public, if I can accommodate that, I will.
  Mr. DURBIN. I was happy to yield again to the Senator, whom I respect 
very much. I tell him, for the record, on May 25 of last year, we sent 
a letter to him about Goldman Sachs, asking that we have some 
information about the $140 billion figure, how it was arrived at, and 
how it will be paid for. So this is not the first time this issue has 
come up.
  It is curious to me that we are writing a bill that is going to 
change the laws of all the States of America, and if we are going to 
close those courtrooms across America. Yet the Senator from 
Pennsylvania had to issue a subpoena to obtain a list of the names of 
the companies that are going to contribute to the trust fund. This is a 
very strange process.
  Usually, legislation emanates from within Congress and affects the 
outside world. It appears that the secret list at issue emanated from 
the outside and whoever created it wasn't anxious to share it. So if 
there is skepticism by those of us critical of the bill, I think there 
is good reason.
  We never received a reply to our May letter of last year. It is an 
indication to me that this whole process has been very unusual and very 
different from any process I have seen.
  Somewhere, someone has come up with a number as to how much we need 
to compensate these victims, and someone has come up with a source on 
how that number will be arrived at, and the chairman had to go to the 
lengths of subpoenaing the information that was the basis for this bill 
that will affect hundreds of thousands of Americans and their lives.
  Mr. SPECTER. Mr. President, will the Senator will yield further?
  Mr. DURBIN. I will be happy to yield.
  Mr. SPECTER. When he says I haven't responded to his letter, I have 
responded to his letter by getting him the information. The Senator 
from Illinois is diligent, resourceful, and raises lots of questions. I 
would challenge him to say I haven't responded to all of them.
  Mr. DURBIN. I say to the chairman, he is the most responsive Member I 
can think of, and I thank him for his service and friendship. I have 
shared with him my concerns on this issue, and he has gone so far as to 
issue a subpoena.

  The point I wanted to make to the chairman is raising this issue was 
not sua sponte. I started asking this question long ago as to why we 
couldn't get the most fundamental----
  Mr. SPECTER. Parliamentary inquiry: Does sua sponte apply to this 
discussion? I withdraw the parliamentary inquiry.
  When the Senator from Illinois says the chairman had to issue a 
subpoena, I consider it a compliment. I have had to deal with 
stakeholders on all sides who have been recalcitrant. We haven't--I, 
we, Senator Leahy and I--haven't left any stone unturned. If people who 
want this bill and are obligated to provide money won't give the 
information I want, if they are for the bill and they are for the 
position I am sponsoring, I am going to get tough about it. I am going 
to get a subpoena so that Senator Durbin knows what is going on, and I 
think the American people, through their elected representatives, will 
know what is going on.
  Does the Senator want me to yield? If I can get wider distribution, I 
will.
  Mr. DURBIN. Let me reclaim my time but also say to the chairman, 
parenthetically, what we engaged in--yielding back and forth--draws 
perilously close to debate on the Senate floor, which we try to avoid 
at any cost. I will do my best to always yield to meaningful questions 
and comments as those made by the chairman of the Senate Judiciary 
Committee. But I want to return to my comments.
  This is a curious situation, where the chairman of the committee who 
wrote the bill had to issue a subpoena to get the information about 
what the bill meant. Now that is a curious situation. It leads one to 
believe that someone else, other than this committee, is writing the 
bill. Who could that possibly be? Who has enough interest in this 
matter to want to move forward with passing this bill outside of 
Capitol Hill? I gave one example earlier of one corporation which 
stands to gain $3.1 billion if this bill passes. Those are companies 
very interested in this bill.
  There has been a lot of talk on the floor about the lobbying effort 
on behalf of this legislation. It has been huge.
  (Ms. MURKOWSKI assumed the Chair.)
  Mr. SPECTER. Madam President, will the Senator from Illinois yield 
for a question?
  Mr. DURBIN. After I finish my sentence, I will yield. I concede this 
bill is a clash of special-interest titans on both sides. I think 
proponents of the bill have invested a lot more in its passage than 
those who oppose it. Maybe we will never know the true figures, but the 
interesting thing is that the first bill of this Senate session is not 
a bill to address the Medicare prescription drug crisis, it is not a 
bill to provide affordable, accessible health care to Americans, it is 
not a bill to deal with the energy crisis and the heating bills that 
are killing us in the Midwest and the Northeast, it is not a bill to 
deal with pension security for workers who are losing a lifetime of 
pension investment to a merger or a bankruptcy or corporate sleight of 
hand. It is a bill that is brought by lobby groups and special 
interests that have invested tens of millions of dollars trying to 
force this issue and bring this matter before us on the Senate floor.
  Mr. SPECTER. Madam President, parliamentary inquiry: Has the Senator 
from Illinois finished that sentence?
  Mr. DURBIN. I just finished. That was a period.
  Mr. SPECTER. There are a lot of semicolons in that sentence, then.
  Mr. DURBIN. I am not yielding the floor unless the Senator wishes to 
ask a question. Then I will be happy to yield.
  Mr. SPECTER. There is a lot of competition for the floor. There are 
three of us on the floor. A lot of competition for it.
  When the Senator from Illinois talks about special interest groups, 
there are others involved in this legislation and they are the victims. 
They are thousands, tens of thousands of victims who are suffering 
deadly diseases. Those are the people about whom this Senator is 
concerned.
  Yesterday I put into the Record an article from the front page of the 
Hill about $3 million being spent by lobbyists to defeat this bill. 
Today the New York Times has a detailed story about how much money is 
being spent to defeat this bill.
  It is true there are some who want this bill--the manufacturers and 
some insurance companies. But the people who really want this bill are 
the victims.
  I take just a little umbrage at one sentence, one statement made by 
the Senator from Illinois when he says that because I have to subpoena 
material, it raises a question about who is writing the bill, that 
somebody else is writing the bill.
  Let me assure you, Madam President, and anybody who may be watching 
on C-SPAN--if we had anybody, we lost them a long time ago--no special 
interest has written this bill. It is a non sequitur. I have to respond 
in some way to sua sponte. It is a non sequitur to say that because it 
was necessary to subpoena information that somebody else wrote the 
bill.
  Mr. DURBIN. Without yielding the floor, would the Senator please tell 
us what Government agency he subpoenaed for the information to produce 
the secret list?
  Mr. SPECTER. I will be glad to respond. I didn't subpoena any 
governmental agency. We subpoenaed the companies who were obligated to 
provide the money.
  Mr. DURBIN. Without yielding the floor, would the Senator please 
state for the Record the names of the nongovernment agencies, private 
companies he had to subpoena to understand the underlying basis for 
this trust fund and how $140 billion was arrived at?
  Mr. SPECTER. I didn't have to subpoena anybody to understand the 
underlying basis for this bill. This is my bill. I understood it when I 
thought it through and when I wrote it. Will I provide the names of 
those who are to be contributors? I do not have them at my disposal, 
and I certainly don't have them in my mind. But the staffer from the 
Senator from Illinois has already seen them and I would be glad to 
personally take the Senator from Illinois to look at the list.

[[Page S834]]

  Mr. DURBIN. Madam President, if this were a courtroom I would say the 
witness is not responsive. I asked the Senator a very direct question: 
Who did you send the subpoena to if it wasn't a government agency? And 
the answer, he knows, is: A private company. The obvious question is: 
Why are private companies writing a bill we have on the floor of the 
Senate today? They are writing that bill because they have a deep, 
personal interest in this bill. They are going to do quite well, thank 
you. Some companies are going to end up, as a result of this 
legislation, walking away from their legal liabilities in court for 
asbestos injury and asbestos death. These are the companies that want 
to see us close down the court system for these victims and create 
something else because they are the winners.
  I hope the Senator from Pennsylvania--I don't want to create any 
umbrage, or raise any questions about his integrity. I am not. But I 
hope he will at a later point in the day come to the floor and disclose 
the names of the private companies that created the secret list that 
suggests there may be thousands of corporations across America that 
will have to contribute to this trust fund.
  I wish to go to the most basic questions about the $140 billion. 
Where did we come up with $140 billion? How can we suggest that over 
the next 50 years or more that will be enough? It is important that it 
is enough. Yesterday my friend, the Senator from Pennsylvania, 
addressed this issue. He came to the floor and this is what Senator 
Specter said about this $140 billion figure:

       The figure of $140 billion was worked out by Senator Frist 
     and Senator Daschle about a year and half ago. It is a figure 
     which rose from that which was originally put in the trust 
     fund to that figure where CBO has given us the assurance that 
     the range of cost will be somewhere between $120 billion and 
     $135 billion. Under one contingency, it could go to $150 
     billion, but that is unlikely.

  Senator Specter went on to say something else, and I think is a very 
important statement. It is a long sentence, but bear with me:

       We have within the structure of the bill a provision that 
     the administrator can make a reevaluation going through 
     certain preconditions so that if it looks like we're going to 
     exceed the $140 billion, we can make modifications in the 
     medical standards and criteria to stay within the $140 
     billion.

  End of quote from the Senate floor. A statement by the chairman of 
the Judiciary committee yesterday stating there will be modifications 
in medical standards and criteria. Make no mistake what that means. It 
means less money for victims. It means if this fund runs out of money, 
the victims will receive even less. So the winners will be winning 
more, the losers losing more. And the victims will be the ultimate all-
time losers in this situation.
  I think it was an honest answer. I believe Chairman Specter was very 
candid in what he said. He could have said that if we exceed $140 
billion in claims, that we would return all the cases to the tort 
system and the court system. But he knows if he said that, it would be 
hard to explain how we get into this trust fund for a few years, close 
the courthouse door, cut off all the pending lawsuits, and then declare 
the trust fund doesn't work. He didn't say that.

  He could have said the Federal taxpayers will have to step in at that 
point and take care of the victims. But he knew that would cause a 
problem, not just on his side of the aisle but across the Senate. A 
Federal bailout is not viewed very positively when our Federal budget 
is facing the deepest deficits in the history of the United States.
  So he said, and I admire his candor, we will just reduce the amounts 
we pay the victims. That is how we will make $140 billion work. That is 
a very candid and straightforward, but harrowing answer.
  To say to people, if you were in the midst of a lawsuit, if you have 
worked around asbestos and have asbestosis and you are limited in your 
activities and maybe in the span of your life, and you filed a lawsuit 
against the company that exposed you to this asbestos, and you worked--
and I know this because I used to do this for a living--worked for 
years to get that case into court with great sacrifices and 
frustrations and motions and continuances, and you are finally there--
when this bill passes, if you don't have your case before a jury, you 
are finished. Close the door. Take your file home. You get to start all 
over.
  Then what happens? You go into this trust fund, which on balance will 
probably pay you less, and you hope and pray there will be enough money 
there to pay you. If there is not, Senator Specter has said we will cut 
back your pay and your compensation for being injured by asbestos until 
we can hit this magic $140 billion number. That is the reality of this 
bill.
  I think it is fair to ask, Is the $140 billion figure accurate? I 
have been through this on the Senate Judiciary Committee for several 
years. Senator Orrin Hatch offered a version of this bill. He began by 
saying all we need is $90 billion over 50 years. Then we got into a 
committee debate and markups, and the figure moved up to $154 billion 
during the course of committee process. At that time the CBO, the 
Congressional Budget Office, estimated it would cost between $124 and 
$136 billion for anticipated claims.
  Since this virtual endorsement of the trust fund bill from 3 years 
ago, the Congressional Budget Office has progressively but 
unquestionably expressed greater and greater reservations about that 
number, about the viability of the trust fund and whether the figure we 
are talking about today is an honest figure to compensate victims.
  Let me share this report from the Congressional Budget Office. I will 
read it:

       There is a significant likelihood that the fund's revenues 
     would fall short of the amount needed to pay valid claims, as 
     well as debt-service and administrative costs. There is also 
     some likelihood that the fund's revenues would be sufficient 
     to meet those needs. The final outcome cannot be predicted 
     with great certainty. Without a substantial increase in the 
     resources available to the fund, there is no way to guarantee 
     the fund will not either revert to the court system or 
     require additional funding.

  That is an honest answer. When we ask this official organization of 
Congress that is supposed to assess whether $140 billion is enough, 
their honest answer is, we can't say either way, but we certainly can't 
give you a guarantee that $140 billion is all that will be needed.
  The Congressional Budget Office went on to say, in analyzing the bill 
before us:

       CBO expects the value of valid claims likely to be 
     submitted to the fund over the next 50 years could be between 
     $120 and $150 billion, not including possible financing (debt 
     services) costs.

  Remember those words. Because it turns out the money from companies 
will not come into the trust fund fast enough to pay the massive influx 
of claims right at the start, the trust fund is going to have to borrow 
that money. And in borrowing money, the trust fund has to pay interest 
and finance costs. And all of the lamentations on the floor here about 
attorney's fees notwithstanding, at the end of the day, we will find 
that substantial amounts of money in the trust fund will be paid in 
interest costs, from the borrowing to try to keep this fund afloat as 
legitimate asbestos victims ask for their fair compensation.
  That is a reality. It is a reality that suggests the $140 billion 
figure cannot be substantiated. If this were an idea of Senator Daschle 
and Senator Frist a year and a half ago, as much as I respect both of 
them, and I respect them very much, I don't know that either one of 
them is actuaries, nor do I know that they have the expertise to come 
up with a magic figure to predict the cost of this trust fund over a 
50-year lifespan.
  Let's take some of these concerns directly.

       The CBO states that the expected $120-$150 billion in 
     qualified asbestos injury claims on the trust fund ``does not 
     include possible financing costs and administrative expenses. 
     The interest cost of this borrowing [they say] would add 
     significantly to the long-term costs faced by the fund. . . 
     .''

  What are the financing costs? We are talking about debt service, 
money the Federal Government has to expend in order to either lend on 
its own to the new trust fund or go to private capital markets. The 
debt service costs could reach $50 billion or more.
  We would find, then, that more than a third of the money going into 
the trust fund would be used to pay out in interest costs, not in 
victim compensation. Why? Because the secret and maybe soon public list 
of contributions by companies and insurance companies

[[Page S835]]

indicates not enough will be coming into the fund to match all of the 
injured victims across America who are going to be turning to this new 
fund, which, at the same time, closes down the court system for 
hundreds of thousands of American citizens.

  Here is more of the CBO's analysis:

       Because expenses would exceed revenues in many of the early 
     years of the fund's operations, the administrator would need 
     to borrow funds to make up the shortfall. The interest cost 
     of this borrowing would add significantly to the long-term 
     costs faced by the fund and contributes to the possibility 
     that the fund might become insolvent.

  Is it worth the gamble? Is it worth the gamble for us to pass a fund 
to close down the court system, to tell people who have worked for 
months and years to bring their case to a judge or a jury that they are 
now out of the system, then close the courtroom doors? Is it worth the 
gamble to them and their families that our calculations are right? 
Should we replace the court system on the possibility that we have 
guessed right about $140 billion, that in fact it would not become 
insolvent? Or should we shrug our shoulders and say, well, if we 
guessed wrong, what is the worst thing that could happen? According to 
the author of this bill, the victims will receive less money.
  So when the chairman of the Judiciary Committee suggests that the 
chorus of voices of victims is what brings us to the floor today, I 
would say to him I am sure there are some who are in that chorus, but 
it might not be much more than a small quartet. The larger choir of 
victims across America has told us about their opposition to this bill. 
I could read that list of victims, unions, and other groups into the 
record. They are telling us this is the wrong thing to do. It is unjust 
to close the courthouse door to thousands of people across America and 
to say to them: Trust us, we have an idea for a trust fund. It has 
never been tried before, we are not quite sure of the figure, the 
contributors to the trust fund are on the secret list which may become 
public, but trust us. It is well worth your life and your health.
  There is a group called Bates White which testified before the Senate 
Judiciary Committee, a group that has represented businesses and 
various organizations.
  In September 2005, this economic consulting firm issued a report 
about this bill. I don't know why they conducted this report, but I 
have read it and attended a Judiciary Committee hearing where Dr. 
Charles Bates of that firm testified. According to the author, the 
report examined the viability of the fund. They focused on two primary 
categories of claimants who posed the greatest threat to the fund's 
financial viability.
  First, they conclude that the bill would create entitlements for many 
individuals with lung and other cancers who were not compensated in the 
historical tort environment. The Bates White report states this 
entitlement likely will result in at least a tenfold increase in the 
number of other cancer victims relative to the cases being brought in 
our courts today.
  Here is why. Based on epidemiological studies between 2000 and 2055, 
some 3.5 million people in the eligible population covered by this bill 
will develop lung or other cancers, not including mesothelioma. 
Asbestos is only one of the myriad of significant risk factors that may 
be causally related to lung and ``other'' cancers. But S. 852 would 
compensate all cancer claimants who have minimal pleural or lung 
changes based on subjective x-ray readings.
  According to this study, the filing rates for the trust fund are also 
expected to increase substantially over the historical rates in the 
tort system due to the relative ease of the filing which is to be 
created by this trust fund bill. Thus, according to Bates White, the 
bill would compensate for a dramatically larger number of patients.
  Second, the Bates White report concludes that the bill is going to 
revive what they call ``dormant claims,'' which are asbestos injury 
lawsuits that have been settled with most but not all defendants. The 
bill allows some claimants who filed their lawsuits prior to 2000 to be 
eligible for payment in the trust fund if those claims have not been 
fully resolved. Thousands of such cases currently remain on court 
dockets.
  This incremental entitlement for the differential between the amounts 
collected in such suits in settlement or judgments, and the amount 
awardable from the fund, they estimate, could total up to $26 billion. 
And if these victims seek to recover the difference, that would add 
significantly to the cost of the trust fund.
  Let me say at the outset that I think the court system as well as the 
trust fund should be generous to victims. As I said earlier, I don't 
know of a single victim of asbestos exposure who knowingly and 
willingly exposed themselves. Many of them were duped by deception of 
corporate officers who insisted there was no danger involved.
  I am not questioning the decision in the bill to extend such 
payments, but I do join Bates White in questioning whether the programs 
set forth in the bill can be paid for. What Bates White has said is, if 
you look at the bill as it is written, and the people who will be 
compensated, it is going to cost dramatically more than earlier 
estimates.
  Based on these two factors and using very conservative economic 
assumptions, the Bates White study concludes the bill would create 
entitlement claims valued between $301 billion and $561 billion.
  The bill's trust fund is capped at $140 billion. This study says the 
amount of payouts could be more than double, or as much as three times, 
or even more than that in actual payouts. That is how far we could have 
missed the mark when it comes to this economic analysis underlying this 
bill.
  What this study found raises serious questions about the solvency of 
this fund: Saying to the thousands of victims, Close up your court 
case, stop working with your attorney, stop going to the courthouse, we 
are going to take care of you, and then we don't. We come up with a 
$140 billion trust fund that is inadequate to the needs of these 
victims.
  I also want to point out that Bates White updated their study 
yesterday. The economists at this firm announced this week that they 
found a $90 billion error in the Congressional Budget Office's analysis 
of this same bill.
  This is a serious issue. It should be serious enough to take this 
bill off the calendar. If the CBO's estimate is wrong by $90 billion, 
we have to stop where we are. We shouldn't go forward. Bates White's 
new analysis demonstrates this oversight.
  According to the numbers the Congressional Budget Office presents in 
its own report, CBO asserts that 1.5 million individuals will receive 
compensation for nonmalignant conditions, meaning they have bilateral 
pleural disease and 5 or more years of exposure. Under this bill, these 
victims are entitled to medical monitoring.
  Yet, national cancer incidence rates establish that more than 200,000 
of these claimants among the 1.5 million will eventually develop lung 
or other cancers.
  This means, if we take the CBO numbers as the baseline, there could 
be an additional 200,000 claimants who will qualify for lung and other 
cancer claims, which are paid out much higher levels of compensation in 
this bill. Yet the Congressional Budget Office's current estimate takes 
into consideration only 28,000 people in this category.
  So, the new information from Bates White presents a real concern that 
the Congressional Budget Office may have missed at least 170,000 
potential victims who weren't considered in the CBO's earlier analysis.
  The Congressional Budget Office relied on an arbitrary standard 
assumption that only 15 percent of the population will ever file for 
the higher claim. These additional claimants represent more than $90 
billion in additional costs to the fund.
  CBO's estimate currently assumes that 85 percent of qualifying 
claimants who took the trouble to sign up for medical monitoring under 
this bill would not file the paperwork to collect their entitlement if 
they ever developed a more serious illness down the road. This is not a 
credible scenario.

  After all, isn't the purpose of medical monitoring to provide early 
detection of these and other diseases, which means that more people 
rather than fewer would have the opportunity to learn about such 
illnesses?
  As late as yesterday, there are new, fundamental questions being 
raised about whether this trust fund at $140

[[Page S836]]

billion gives us an honest figure to work with. If it is not an honest 
figure, it means as the years progress, we are going to have to reduce 
payments to victims.
  To suggest this is a victims bill is to overlook the obvious: the 
starting point of the bill is so flawed. Let me show you some charts 
about how this will be funded because I think they are a good 
indication of the problem that the fund faces in convincing a majority 
of the Senate to support this bill.
  This is a chart which addresses the timing of this bill, comparing 
when the liabilities will arise for claims coming into the fund, versus 
when the revenues from the companies will come into the trust fund. As 
you can see, the red line shows liabilities which are very high in the 
earlier years, but you will notice the low green line is never adequate 
to meet the needs of liability. From the outset, the fund is falling 
behind. Simply stated, it is not collecting enough money to compensate 
victims.
  One of the arguments being made is we have to replace the court 
system because it takes so long; there are delays. What is going to 
happen when this fund doesn't have enough money and hundreds of 
thousands of Americans who are sick and dying come for compensation?
  At best, we will borrow money, adding more cost to the fund 
dramatically, or we will tell them to wait in line until we have 
received enough trust fund revenue to pay them. Or, I suppose, as the 
chairman said yesterday, we will just say we can pay them now, but we 
will have to pay them less than what we promised in this bill. That 
appears to be the range of options based on the way we are dealing with 
this issue.
  Take a look at this chart which shows that liabilities will greatly 
exceed the assets of the trust fund from the very start, and the 
excess--the red line--continues to build over the years. This is a 50-
year period of time. You can see even with the revenue coming in that 
it never matches the liabilities they anticipate. This chart doesn't 
even include the new information from the Bates White study, which 
could mean there is even a greater amount of shortfall in this trust 
fund.
  Let's talk about interest costs for a moment. The fund borrows in its 
early years because, obviously, all the corporations on the secret list 
can't come up with all the money they are supposed to produce 
initially. Some of them will take a period of time. In fact, some of 
them have told us to forget it, that this bill will end up bankrupting 
them. So those companies will disappear.
  But in the meantime, there are still needy victims and people who 
would otherwise go to courts for compensation. The fund starts to 
borrow in its first years to meet the shortfall but realizes barely 
half the value of future revenue, and the other half has to be used to 
pay interest.
  Senator Hatch was here a few moments ago speaking about attorney's 
fees and how that is taking money away from victims. Some would argue 
that without an attorney, many victims would never have their day in 
court or a chance to succeed in court. What we have here is the fact 
that we will be paying into this trust fund and almost half of the 
revenues will be spent on interest and administration. Out of the $140 
billion in the trust fund--which may not be enough--almost half of it 
is going to go to pay creditors, financial institutions, banks, maybe 
foreign governments. I don't know who will lend money to this trust 
fund. We will pay out interest to them, and we will have less to pay to 
the victims.
  This was really supposed to be an upfront, no-fault system to help 
victims with $140 billion compensation over 50 years. It turns out that 
the real steady winners are creditors of the fund. According to one 
analysis, as little as 52 percent of the trust fund could be used to 
pay the claimants and 48 percent for interest, which is almost half of 
the amount of money during the life of this fund.
  Some suggest that we are doing a great favor by creating this trust 
fund. Well, it is a great favor for sure to credit institutions but to 
the victims, it is not. As more money is paid out in interest, less is 
available for the victims.
  What the Senator who authored this bill said yesterday is, We will 
just cut the compensation. That is the way we will make up the 
difference. For every dollar of interest paid, we pay one dollar less 
to someone who is dying of mesothelioma. That is how this is being 
conducted.
  The sponsors have put a lot of time in this bill, and it was a 
Herculean task to try to address something 50 years in the future. I 
concede to all of that. But shouldn't the people who are pushing for a 
change have the burden of proving that change is an improvement over 
status quo? Shouldn't that be the starting point of a debate?
  If you want to change the current system, shouldn't you have the 
burden of establishing that your change is a good one, and that $140 
billion is the right figure, rather than to say that Senator Daschle 
and Senator Frist thought it was a good figure? Shouldn't you have the 
burden of showing that the input of money into the trust fund from the 
secret list of corporations and insurance companies is going to be 
adequate to meet the payouts of the victims? Shouldn't you have the 
responsibility of showing that $140 billion is going to go to the 
victims rather than to creditors and financial institutions and 
interest and administrative costs?
  Isn't that the starting point? I think it is. Once they have met that 
burden of proof, then we can say: All right, we will compare the court 
system to your trust fund and decide which is the better way to go. But 
they have not met that burden of proof. They have asked us to accept on 
faith that this trust fund is going to treat victims fairly on a timely 
basis. I think many people are concerned about that.
  There will be enormous amounts of claims that are expected to flood 
into this trust fund on day one, and by that time all the cases in 
court will be shut down if they are not at the jury stage. Let me 
repeat that important fact. If the litigants are not presenting any 
evidence in court, all of those cases will be shut down, according to 
this bill.
  You know those victims are going to turn around and say: My husband 
is dying. My husband has limited activity and can't work. Where do I go 
now?
  They will be told: Come to the trust fund. Come to this $140 billion 
trust fund.
  We can expect a flood of applications in the early stages if this 
trust fund is created. Will the Department of Labor be able to create 
this new office and new bureaucracy to manage this flood of claims?
  For those of you who have any doubts about the efficiency of 
government and its ability to respond to millions of people in need, I 
would suggest the following words: the Medicare prescription drug bill. 
You know what I mean.
  This system which was created 2 years ago by the Senate and the House 
and signed by the President was supposed to compensate some 40 million 
Medicare recipients for their prescription drugs. Ask any Senator in 
this Chamber what they have heard back home. This is a disaster. They 
had 2 years to be ready. And, unfortunately, this system is fatally 
flawed. One critic said it is an unsalvageable fiasco and lives are at 
stake. Senior citizens now wonder if they can get their prescription 
drugs filled, and for some of those it is critical for them to just 
keep going on a day-to-day basis.
  Now they are being told in this bill to trust us again.
  We are going to create a Federal trust fund where hundreds of 
thousands of claims may come in initially and ask that they be 
compensated on a timely basis, and they will be told by the Federal 
Government, trust us, we will give you the money right away.
  That is cold comfort for someone who has been sitting for a year or 
two with medical records and lawyers getting ready to present their 
case in court. But if they aren't among the fortunate few who have 
brought their case to a jury or to a judge, presented their evidence, 
and ended up with a verdict or settlement, then, unfortunately, 
everything they have done is for naught. They are tossed out of the 
system.
  These victims deserve better than empty promises in this bill. They 
and the Senate deserve solid information about how this bill will work 
and remain solvent throughout the entire lifetime. Without such 
information, the Senate should reject this bill.

[[Page S837]]

  The PRESIDING OFFICER. The time for the recess has arrived.
  Mr. DURBIN. Madam President, I yield the floor.

                          ____________________