TITLE:  Fairness In Asbestos Injury Resolution Act of 2003, B-301397, September 4, 2003
BNUMBER:  B-301397
DATE:  September 4, 2003
**********************************************************************
Fairness In Asbestos Injury Resolution Act of 2003, B-301397, September 4, 2003

    
B-301397
    
    
    
September 4, 2003
    
Fairness In Asbestos Injury Resolution Act of 2003
The Honorable Don Nickles
Chairman, Committee on the Budget
United States Senate

   Dear Mr. Chairman:
    
This is in response to your request that the General Accounting Office
prepare a comparison of the program that would be created by S. 1125, the
*Fairness In Asbestos Injury Resolution Act of 2003 (FAIR Act),* recently
reported in the Senate, and the existing National Vaccine Injury
Compensation Program and Black Lung Benefits Program. You also asked that
we comment on the borrowing authority in S. 1125. Enclosed is a chart
comparing the two statutory programs and S. 1125.  In response to your
second request, we offer the following observations regarding the
borrowing authority in S. 1125.
    
FAIR Act
    
Subsection 223(c) of the bill provides as follows:
    
*(c) BORROWING AUTHORITY*The Administrator [of the Office of Asbestos
Injury Claims Resolution] is authorized to borrow, in any calendar year,
an amount not to exceed anticipated contributions to the [Asbestos Injury
Claims Resolution] Fund in the following calendar year for purposes of
carrying out the obligations of the Fund under this Act.*

    
The Senate report on the bill explains that the FAIR Act provides the
Administrator with *authority to borrow from commercial lending
institutions amounts to offset short term losses in an amount that does
not exceed anticipated contributions for the following year.*  S. Rep. No.
108-118 at 29 (2003) (emphasis added).  See also id. at 53.
     
Borrowing Authority Generally
    
*Borrowing authority" is a type of budget authority that permits a federal
agency to incur obligations and to liquidate those obligations out of
borrowed moneys. U.S. General Accounting Office, A Glossary of Terms Used
in the Federal Budget Process 22 (GAO/AFMD-2.1.1) (Exposure Draft)
(Washington D.C. Jan. 1993).  See generally U.S. General Accounting
Office, Budget Issues:  Inventory of Accounts With Spending Authority and
Permanent Appropriations, 1996, GAO/AIMD-96-79, App. III, Figure III.2,
*Authority to Borrow by Agency, Bureau, and Account* (Washington, D.C. May
1996).  Borrowing from the Treasury is the most common form of borrowing
authority.  Borrowing authority  also may include authority to borrow
directly from the public, authority to borrow from the Federal Financing
Bank (FFB),[1] or some combination of authorities.  For a general
discussion, see U.S. General Accounting Office, Principles of Federal
Appropriations Law at 2-6 (2nd ed. 1991).
    
Commercial and Federal Borrowing Authority
    
Subsection 223(c) of S. 1125 would permit the Administrator of the Office
of Asbestos Injury Claims Resolution to *borrow, in any calendar year, an
amount not to exceed anticipated contributions to the Fund in the
following calendar year.*  The statutory language in the bill does not
specify the source of the borrowing.  The authority in subsection 223(c)
appears to permit borrowing from commercial lending sources as well as
borrowing from federal sources.   See  S. Rep. No. 108-118 29 (2003). 
Although commercial borrowing authority is less common than Treasury
borrowing authority, it has been authorized by Congress for specific
federal entities, either alone or in combination with Treasury borrowing
authority.  See, e.g., 12 U.S.C. S: 1795f (National
Credit Union Administration Central Liquidity Facility); 39 U.S.C.
S:S: 2005-06 (Postal Service).
    
The Administrator also may borrow from FFB.  The FFB*s enabling
legislation provides that any federal agency *which is authorized to
issue, sell, or guarantee any obligation is authorized to issue or sell
such obligations directly to the Bank.*  12 U.S.C. S: 2285(a).  See, e.g.,
B‑248647, April 24, 1995 (no need for Congress specifically to
authorize a federal financing arrangement in the Federal Triangle
Development Act since the FFB has separate statutory authority to provide
financing).  To provide certainty with regard to the sources from which
the Administrator may borrow, Congress may wish to make those sources
explicit in the bill.
    
Extent of the Borrowing Authority in Subsection 223(c)
    
GAO in the past has recommended that Congress grant borrowing authority
selectively.[2]  Here, the borrowing authority granted by S. 1125 is
subject only to the limitation that it not exceed *anticipated
contributions to the Fund in the following calendar year.*  There is no
explicit provision in S. 1125 for retiring that debt.  Conceptually at
least, the Administrator could incur substantial cumulative debt, subject
only to his or her fiduciary responsibilities (see S:S: 222(a), (b)) and
ability to secure borrowing at reasonable terms.  Under section 405 of S.
1125, however, such borrowing would apparently not be supported by the
U.S. government.  Paragraph 405(b)(1) provides that generally, nothing in
the Act may be construed to *create any obligation of funding from the
United States Government.*[3]  See S. Rep. No. 108-118, above, at 57.  To
ensure that the government incurs no liability for repayment of borrowing
under the act, Congress may wish to explicitly state that repayment of
borrowing is limited solely to amounts available in the Fund.
    
In addition, Congress may wish to consider placing further restrictions on
borrowing under subsection 223(c), such as a ceiling on the cumulative
debt that may be incurred by the Administrator.  For example, Congress has
imposed a cumulative debt ceiling on borrowing by the Tennessee Valley
Authority (TVA).  16 U.S.C. S: 831n‑4 (TVA borrowing authority
limited to *an amount not exceeding $30,000,000,000 outstanding at any one
time*).  Congress also may wish to consider requiring Treasury approval or
oversight of borrowing by the Administrator.[4]  See, e.g., 15 U.S.C. S:
713a-4 (Commodity Credit Corporation borrowing *with the approval of the
Secretary of the Treasury*).
    
We trust this is responsive to your request. We are sending copies of this
correspondence to the Ranking Minority Member of the Senate Budget
Committee, to the Chair and Ranking Minority Member of the Senate
Judiciary Committee, the House Budget Committee, and the House Judiciary
Committee and to the sponsors of other asbestos-related bills now pending
in the Congress.  If we can be of further assistance in this matter,
please contact Charles Roney at 202-512-8152 or
Frank Maguire at 512-8226 of my staff.
    
Sincerely yours,
/signed/
    
Anthony H. Gamboa
General Counsel
    
Enclosure

   Enclosure                                                                                                                                              
    
Comparison of Key Elements of the National Vaccine Injury
Compensation Program, the Black Lung Benefits Program, and
    S. 1125, *The Fairness in Asbestos Injury Resolution Act of 2003*
    
    

   +------------------------------------------------------------------------+
|               |National Vaccine     |Black Lung      |S. 1125, 108th   |
|               |Injury Compensation  |Benefits Program|Cong. (as        |
|               |Program. (42 U.S.C.  |(30 U.S.C. S:S: |reported July 30,|
|               |S:S: 300aa-10        |901 et seq.)    |2003), *Fairness |
|               |et seq.)             |                |in Asbestos      |
|               |                     |                |Injury Resolution|
|               |                     |                |Act of 2003.*    |
|---------------+---------------------+----------------+-----------------|
|Type of        |For an injury: past  |Monthly income  |Cash award,      |
|Benefits       |and future           |maintenance     |payable over 3-4 |
|Payable        |unreimbursable       |payments        |years, derived   |
|               |medical, custodial   |(augmented based|from *benefit    |
|               |care and             |on beneficiary*s|table* based on  |
|               |rehabilitation costs,|number of       |medical          |
|               |actual and projected |dependents) and |condition. S:S:  |
|               |pain and suffering   |medical benefits|131, 133.        |
|               |and emotional        |related to      |*Medical         |
|               |distress (capped at  |treatment for   |monitoring* costs|
|               |$250,000), lost      |black lung      |for patients with|
|               |earnings, and        |disease. 30     |*nonmalignant    |
|               |reasonable attorneys*|U.S.C. S:       |disease* and     |
|               |fees and costs.      |922.[6]         |*minimum exposure|
|               |For a death: payment |                |criteria,* S:    |
|               |capped at $250,000.  |                |132.             |
|               |42 U.S.C.            |                |(Report[7] at    |
|               |S: 300aa-15.[5]      |                |43-44.)          |
|---------------+---------------------+----------------+-----------------|
|Benefit        |Petitioners who can  |Miners *totally |Any individual   |
|Eligibility    |prove that (1) an    |disabled* due to|who has suffered |
|               |injury listed on the |pneumoconiosis  |from an eligible |
|               |*Vaccine Injury      |(black lung     |disease or       |
|               |Table* occurred      |disease) or     |condition that is|
|               |within the applicable|related disease |believed to meet |
|               |time period, (2) the |and their       |the requirements.|
|               |vaccine significantly|survivors.  30  |S: 111.  See     |
|               |aggravated a         |U.S.C. S: 902,  |*Medical Criteria|
|               |preexisting          |931-32.[9]      |Requirements,* S:|
|               |condition, or (3) the|                |121; *Essential  |
|               |covered vaccine      |                |Elements of      |
|               |caused the condition.|                |Eligible Asbestos|
|               |42 U.S.C. S:         |                |Claim,* S: 113.  |
|               |300aa-11(c).[8]      |                |(Report at       |
|               |                     |                |36-43.)          |
|---------------+---------------------+----------------+-----------------|
|Source of      |The Vaccine Injury   |Claims are      |The Asbestos     |
|Benefits       |Compensation Trust   |funded by       |Injury Claims    |
|Funding        |Fund.[10]  Claims may|*responsible    |Resolution Fund. |
|               |be paid only from the|operators,*     |S: 133.  All     |
|               |Fund.  See 26 U.S.C. |i.e., mining    |claims must be   |
|               |S: 9510(d)(1).       |companies, or by|paid from the    |
|               |                     |the Black Lung  |Fund. S:         |
|               |                     |Disability Trust|133(a)(1).       |
|               |                     |Fund when the   |(Report at 44.)  |
|               |                     |employment was  |                 |
|               |                     |before Jan. 1,  |                 |
|               |                     |1970 or when no |                 |
|               |                     |coal mine       |                 |
|               |                     |operator can be |                 |
|               |                     |held            |                 |
|               |                     |liable.[11]  26 |                 |
|               |                     |U.S.C. S:       |                 |
|               |                     |9501(d), 30     |                 |
|               |                     |U.S.C. S:       |                 |
|               |                     |932.[12]        |                 |
|------------------------------------------------------------------------|
|                               TRUST FUND                               |
|------------------------------------------------------------------------|
|*Trust Fund*   |*There is established|*There is       |*There is        |
|Established    |in the Treasury of   |established in  |established in   |
|               |the United States a  |the Treasury of |the Office of    |
|               |trust fund to be     |the United      |Asbestos Injury  |
|               |known as the *Vaccine|States a trust  |Claims           |
|               |Injury Compensation  |fund to be known|Resolution, the  |
|               |Trust Fund*          |as the *Black   |Asbestos Injury  |
|               | . . . . * 26 U.S.C. |Lung Disability |Claims Resolution|
|               |S: 9510(a).          |Trust Fund*. . .|Fund . . . .*    |
|               |                     |.* 26 U.S.C.    |S: 223(a).       |
|               |                     |S: 9501.        |(Report at       |
|               |                     |                |53.)[13]         |
|---------------+---------------------+----------------+-----------------|
|Sources of Fund|An excise tax of 75  |Excise tax on   |Assessments  of  |
|Income         |cents is collected on|coal mining     |*contributions*  |
|               |every dose of covered|companies based |from *defendant  |
|               |vaccine purchased. 26|on each ton of  |participants*    |
|               |U.S.C. S: 4131.      |coal mined,     |(S: 202(a)(1))   |
|               |Upon payment of      |amounts         |and from         |
|               |compensation to a    |recovered from  |*insurance       |
|               |petitioner, the Fund |*responsible    |participants.*   |
|               |is subrogated to all |operators,* and |(S: 212(a)).     |
|               |rights of the        |certain         |Additional       |
|               |petitioner.          |penalties       |contributions    |
|               |Collections under    |assessed under  |from             |
|               |this provision are   |the Act.  26    |asbestos-related |
|               |deposited in the     |U.S.C. S: 4121. |civil trusts.    |
|               |Fund. 42 U.S.C. S:   |Interest        |(S: 402)         |
|               |300aa-17.            |income.  26     |(Report at 29,   |
|               |Interest income.  26 |U.S.C.          |56.)[14]         |
|               |U.S.C. S: 602(b)(3). |S: 9602(b)(3).  |                 |
|---------------+---------------------+----------------+-----------------|
|Investment of  |Yes. Treasury is     |Yes. Treasury is|Yes. The         |
|Funds permitted|required to invest   |required to     |Administrator is |
|or required?   |funds not required to|invest funds not|required by      |
|               |meet current         |required to meet|section 222 to   |
|               |withdrawals *only in |current         |invest the assets|
|               |interest-bearing     |withdrawals     |of the Fund      |
|               |obligations of the   |*only in        |consistent with a|
|               |United States.*  26  |interest-bearing|*prudent person* |
|               |U.S.C. S: 9602(b).   |obligations of  |standard.        |
|               |                     |the United      |S: 222(a), (b).  |
|               |                     |States.*  26    |(Report at 53.)  |
|               |                     |U.S.C. S:       |                 |
|               |                     |9602(b).        |                 |
|---------------+---------------------+----------------+-----------------|
|Specific       |Yes. Claims may be   |Yes. The Fund is|Yes. The bill    |
|limitation of  |paid only out of the |specifically    |specifically     |
|government     |Fund.  26 U.S.C.     |designated as   |provides that    |
|liability for  |S: 9510(d)(1).       |the source of   |nothing in it    |
|claims?[15]    |                     |benefit         |*may be construed|
|               |                     |payments, making|as creating a    |
|               |                     |other sources   |cause of action  |
|               |                     |unavailable.    |against the      |
|               |                     |26 U.S.C. S:    |United States* or|
|               |                     |9501; 30 U.S.C. |*construed to    |
|               |                     |S: 932(a).      |create any       |
|               |                     |                |obligation of    |
|               |                     |                |funding from the |
|               |                     |                |United States    |
|               |                     |                |Government.*  S: |
|               |                     |                |405.  (Report at |
|               |                     |                |29, 60.)         |
|---------------+---------------------+----------------+-----------------|
|Other costs    |Expenses incurred by |Administrative  |Principal and    |
|payable from   |the federal          |costs incurred  |interest on      |
|Fund?          |government in        |by agencies that|borrowings and   |
|               |administering the    |administer      |administrative   |
|               |program, capped at no|benefits and    |expenses         |
|               |more than $9,500,000 |operate the     |necessary to     |
|               |for any fiscal year. |trust fund.     |carry out        |
|               |26 U.S.C.            |26 U.S.C. S:    |activities of the|
|               |S: 9510(c)(1) (B).   |9501(d)(5).     |Office of        |
|               |                     |                |Asbestos Injury  |
|               |                     |                |Claims Resolution|
|               |                     |                |and the Asbestos |
|               |                     |                |Insurers         |
|               |                     |                |Commission.      |
|               |                     |                |S:S: 217, 223(a).|
|               |                     |                |(Report at 53.)  |
|---------------+---------------------+----------------+-----------------|
|Explicit[16]   |No. But see 26 U.S.C.|No. But see 26  |Yes. Fund is to  |
|fiduciary      |S: 9602, *Management |U.S.C. S: 9602, |be administered  |
|responsibility?|of Trust Funds.*     |*Management of  |*in a fiduciary  |
|               |                     |Trust Funds.*   |capacity* with   |
|               |                     |                |*care, skill,    |
|               |                     |                |prudence, and    |
|               |                     |                |diligence,* to a |
|               |                     |                |*prudent person* |
|               |                     |                |standard.        |
|               |                     |                |S:S: 222(a), (b).|
|               |                     |                |(Report at 53.)  |
|---------------+---------------------+----------------+-----------------|
|   |Borrowing  |None.[17]            |If tax revenues |The Administrator|
|   |Authority  |                     |are insufficient|is authorized to |
|   |           |                     |to cover        |borrow, in any   |
|   |           |                     |expenditures,   |calendar year, an|
|   |           |                     |Congress may    |amount not to    |
|   |           |                     |appropriate     |exceed           |
|   |           |                     |*repayable      |anticipated      |
|   |           |                     |advances* to the|contributions to |
|   |           |                     |Fund.  Such     |the Fund in the  |
|   |           |                     |advances are    |following        |
|   |           |                     |repayable with  |calendar year for|
|   |           |                     |interest.  26   |purposes of      |
|   |           |                     |U.S.C. S:       |carrying out the |
|   |           |                     |9501(c).        |obligations of   |
|   |           |                     |                |the Fund.        |
|   |           |                     |                |S: 223(c).[18]   |
|   |           |                     |                |(Report at 29,   |
|   |           |                     |                |53.)             |
|------------------------------------------------------------------------|
|                           CLAIMS PROCEDURES                            |
|------------------------------------------------------------------------|
|Filing and     |Individual files a   |Miners and their|Claims system    |
|Processing     |*petition for        |survivors apply |will be          |
|Procedures     |compensation* with   |to the DOL for  |administered by  |
|               |the U.S. Court of    |benefits.  DOL  |the Court of     |
|               |Federal Claims.  A   |obtains a       |Federal Claims,  |
|               |Health and Human     |medical and     |which will       |
|               |Services physician   |employment      |establish an     |
|               |conducts a medical   |history and     |Office of Special|
|               |review of the        |identifies      |Asbestos Masters |
|               |petition and makes a |*operators* who |to process and   |
|               |recommendation.  A   |may be liable   |make initial     |
|               |Justice attorney     |for the claim   |decisions on     |
|               |reviews the petition |and makes an    |claims.  Claims  |
|               |to determine whether |initial         |filed under the  |
|               |it meets the legal   |determination.  |bill will be     |
|               |requirements for     |Parties,        |referred to      |
|               |compensation. These  |including       |claims examiners |
|               |reviews are provided |claimants or    |for an initial   |
|               |to the Court.  The   |operators, may  |review.  Once a  |
|               |HHS position is      |appeal and      |claim is         |
|               |represented by a     |submit          |complete, a      |
|               |Justice attorney in  |additional      |special asbestos |
|               |hearings before a    |evidence.       |master has 60    |
|               |*special master,*    |Informal        |days to determine|
|               |appointed by the     |conferences may |the amount of any|
|               |Court.  42 U.S.C.    |be held to try  |award. S:S:      |
|               |S: 300aa-12.[19]     |to resolve      |111-115.         |
|               |                     |differences.    |(Report at 30,   |
|               |                     |DOL then        |36-7.)           |
|               |                     |prepares a      |                 |
|               |                     |proposed        |                 |
|               |                     |*Decision and   |                 |
|               |                     |Order* which is |                 |
|               |                     |subject to      |                 |
|               |                     |appeal as set   |                 |
|               |                     |forth below.    |                 |
|               |                     |[20]            |                 |
|---------------+---------------------+----------------+-----------------|
|*No Fault*     |Yes.  The petitioner |Yes, although   |Yes. Claimants   |
|claims process?|is not required to   |the Act         |*shall not be    |
|               |show that a          |contemplates    |required to      |
|               |particular vaccine   |that            |demonstrate that |
|               |manufacturer or      |*responsible    |the              |
|               |administrator was    |operators* will |asbestos-related |
|               |negligent.  42 U.S.C.|be the primary  |injury for which |
|               |S: 300aa-11.[21]     |funding source. |the claim is     |
|               |                     |30 U.S.C. S:    |being made       |
|               |                     |932. Claimants  |resulted from the|
|               |                     |or mine         |negligence or    |
|               |                     |operators       |other fault of   |
|               |                     |dissatisfied    |any other        |
|               |                     |with the initial|person.* S: 112. |
|               |                     |DOL decision can|(Report at 36.)  |
|               |                     |appeal.  The    |                 |
|               |                     |appeals process |                 |
|               |                     |is              |                 |
|               |                     |adversarial.[22]|                 |
|               |                     |                |                 |
|---------------+---------------------+----------------+-----------------|
|Appeal of      |The decision on      |Decisions can be|Decisions of the |
|Decisions      |entitlement or       |appealed to the |*special master* |
|               |compensation by the  |Office of       |on claims may be |
|               |*special master* may |Administrative  |appealed to a    |
|               |be appealed to the   |Law Judges at   |U.S. Court of    |
|               |Court of Federal     |DOL, to the     |Asbestos Claims, |
|               |Claims and           |independent     |which would be a |
|               |subsequently to the  |Benefits Review |three judge court|
|               |U.S. Court of Appeals|Board at DOL, to|established by   |
|               |for the Federal      |the U.S. Circuit|the Court of     |
|               |Circuit and the      |Court of Appeals|Federal Claims.  |
|               |Supreme Court.       |with            |S: 141(a), (b).  |
|               |S: 300aa‑12(e),|jurisdiction    |Decisions of the |
|               |(f).                 |where the miner |Asbestos Court   |
|               |                     |was exposed to  |could be appealed|
|               |                     |coal mine dust, |to the Federal   |
|               |                     |and finally to  |Circuit and the  |
|               |                     |the Supreme     |Supreme Court.   |
|               |                     |Court.  See DOL |S: 301. (Report  |
|               |                     |Employment Law  |at 44, 55.)      |
|               |                     |Guide. [23]     |                 |
|---------------+---------------------+----------------+-----------------|
|Alternate      |Yes, although under  |Yes.  There is  |No. Section      |
|avenues of     |the Act an individual|no explicit     |403(c) provides  |
|redress        |alleging a           |provision in the|that Act is the  |
|available?     |vaccine-related      |Black Lung      |*exclusive       |
|               |injury or death must |legislation     |remedy* for      |
|               |first file a claim   |prohibiting tort|*personal injury*|
|               |before pursuing a    |lawsuits by     |asbestos claims. |
|               |tort claim.  After   |miners afflicted|*No asbestos     |
|               |pursuing a petition  |by Black Lung   |claim may be     |
|               |under the Program, a |disease.[24]    |pursued in any   |
|               |petitioner can elect |                |Federal or State |
|               |to bring a suit in   |                |court, except for|
|               |civil court by 1)    |                |enforcement of   |
|               |withdrawing the      |                |claims for which |
|               |petition under       |                |an order or      |
|               |certain conditions or|                |judgment has been|
|               |2) electing to reject|                |duly entered by a|
|               |the decision and     |                |court that is no |
|               |judgment of the      |                |longer subject to|
|               |Court. 42 U.S.C. S:  |                |any appeal or    |
|               |300aa-21.   If the   |                |judicial review .|
|               |petitioner does elect|                |. . . S:S: 2(3); |
|               |to bring suit, the   |                |403(c)(1).       |
|               |Act limits the claims|                |(Report at       |
|               |the petitioner can   |                |56-57.)          |
|               |make against the     |                |                 |
|               |manufacturer.  42    |                |                 |
|               |U.S.C.               |                |                 |
|               |S:S: 300aa-22, 23.   |                |                 |
|------------------------------------------------------------------------|
|                            OTHER PROVISIONS                            |
|------------------------------------------------------------------------|
|Provision for  |No.[25]              |No.[26]         |Under section    |
|early          |                     |                |404,             |
|termination?   |                     |                |Administrator    |
|               |                     |                |must certify     |
|               |                     |                |annually that 95 |
|               |                     |                |% of eligible    |
|               |                     |                |claimants who    |
|               |                     |                |filed claims     |
|               |                     |                |during the prior |
|               |                     |                |calendar year    |
|               |                     |                |have received    |
|               |                     |                |compensation to  |
|               |                     |                |which they were  |
|               |                     |                |entitled and 95% |
|               |                     |                |of the           |
|               |                     |                |obligations of   |
|               |                     |                |the Fund owed to |
|               |                     |                |eligible         |
|               |                     |                |claimants in the |
|               |                     |                |prior calendar   |
|               |                     |                |year have been   |
|               |                     |                |paid.  If        |
|               |                     |                |Administrator    |
|               |                     |                |cannot so        |
|               |                     |                |certify, he or   |
|               |                     |                |she has a 90 day |
|               |                     |                |period to remedy |
|               |                     |                |this situation.  |
|               |                     |                |Otherwise,       |
|               |                     |                |program sunsets  |
|               |                     |                |and claimants may|
|               |                     |                |litigate claims. |
|               |                     |                |(Report at 57,   |
|               |                     |                |61.)             |
|---------------+---------------------+----------------+-----------------|
|Current Status |The Fiscal Year 2004 |Coal taxes have |                 |
|of the Fund    |Budget indicated that|been chronically|                 |
|               |the estimated balance|inadequate to   |                 |
|               |of the Fund at the   |cover           |                 |
|               |end of Fiscal year   |expenditures and|                 |
|               |2003 was $1.907      |the Fund has    |                 |
|               |billion. See FY 04   |borrowed        |                 |
|               |Budget at 409.[27]   |extensively from|                 |
|               |                     |the General     |                 |
|               |                     |Fund.[28] The   |                 |
|               |                     |outstanding debt|                 |
|               |                     |at the end of FY|                 |
|               |                     |2003 was        |                 |
|               |                     |estimated to be |                 |
|               |                     |over $8         |                 |
|               |                     |billion.  See FY|                 |
|               |                     |04 Budget at    |                 |
|               |                     |653, 665-667.   |                 |
|---------------+---------------------+----------------+-----------------|
+------------------------------------------------------------------------+

    
    

   ------------------------

   [1] Congress established the Federal Financing Bank to (1) finance federal
and federally assisted borrowings in ways that least disrupt private
markets, (2) coordinate such borrowing programs with the government*s
overall fiscal policy, and (3) reduce the costs of such borrowings from
the public.  See 12 U.S.C. S:S: 2281 et seq.  FFB provides financial
assistance to or on behalf of federal agencies by (1) making direct loans
to federal agencies to help them fund their programs, (2) purchasing loan
assets from federal agencies, and (3) making direct loans to nonfederal
borrowers (including foreign governments) that are secured by federal
agency guarantees. FFB obtains funds by borrowing from the Department of
the Treasury or the public.  Each loan made by Treasury matches the terms
and conditions, except for the interest rate, of the corresponding loans
made by FFB. FFB charges its borrowers the interest it incurs on Treasury
borrowing, plus a fee to cover administrative costs.  See U.S. General
Accounting Office, Financial Audit:  Federal Financing Bank*s 1993 and
1992 Financial Statements, GAO/AIMD-95-4 (Washington D.C. 1994).  See also
*The Federal Financing Bank.*  http://www.treas.gov/ffb (last visited
Sept. 3, 2003).
[2] As a general proposition, direct appropriations provide enhanced
congressional control relative to borrowing authority.  See, e.g.,
B-141869, July 26, 1961.  See also U.S. General Accounting Office, Budget
Issues: Agency Authority to Borrow Should Be Granted More Selectively,
GAO/AFMD-89-4 (Washington, D.C. Sept. 1989). 
[3] Section 405(b) of S.1125, as reported in the Senate, provides in full
as follows:
*Nothing in this Act may be construed to *
(1)  create any obligation of funding from the United States Government,
other than the funding for personnel and support as provided under
subtitle A of title I; or
(2)  obligate the United States Government to pay any award or part of an
award, if amounts in the Fund are inadequate.*
[4] Under section 2286 of Title 12, U.S.C., *the prior approval of the
Secretary of the Treasury* is required with respect to methods, source,
timing and financing of *obligations issued or sold by any Federal
agency.*  Whether this section would be applicable to borrowing by the
Administrator is open to question due to an explicit exception in the
statute for *obligations issued or sold pursuant to an Act of Congress
which expressly prohibits any guarantee of such obligations by the United
States.*   12 U.S.C. S: 2286(a); see also, 12 U.S.C. S: 2288(3)
(definition of *guarantee* as *any guarantee, insurance or other pledge
with respect to the payment of all or part of the principal or interest of
any obligation . . . .*).  As indicated above, section 405 of the bill
provides generally that, nothing in the Act may be construed to *create
any obligation of funding from the United States Government.*
[5] See *National Vaccine Injury Compensation Program Fact Sheet,*
Department of Health and Human Services, Health Resources and Services
Administration, Office of Special Programs.
www.hrsa.gov/osp/vicp/fact_sheet.htm (last visited Aug. 30, 2003).  Note
that, unless otherwise indicated, the discussion in this chart applies to
injuries or deaths from vaccines administered after October 1, 1988. 
Claims for compensation for injuries or deaths from vaccines administered
prior to that date are no longer accepted. See *Commonly Asked Questions
About the National Vaccine Injury Compensation Program,* Department of
Health and Human Services, Health Resources and Services Administration,
updated Dec. 18, 2002.  http://www.hrsa.gov/osp/vicp/qanda.htm (last
visited Aug. 30, 2003) (hereafter referred to as *VICP Commonly Asked
Questions*).
[6] See Department of Labor, Office of the Assistant Secretary for Policy,
Employment Law Guide, *Black Lung Compensation,* 
http://www.labor.gov/asp/programs/guide/blklung.htm (last visited Aug. 30,
2003) (hereafter cited as *DOL Employment Law Guide*).
[7] S. Rep. No. 108-118 (July 30, 2003).
[8] See VICP Commonly Asked Questions.
[9] Eligibility requirements vary depending on date of claim. See
Department of Labor, Benefits Review Board, Black Lung Deskbook, Part I.A,
*General History and Purpose.* http://www.dol.gov/brb/bldesk.htm (last
visited Aug. 30, 2003) (hereafter referred to as *Black Lung Deskbook*).
[10] For vaccines administered prior to October 1, 1988, claims are paid
from general fund appropriations rather than the Trust Fund. See  U.S.
General Accounting Office, Vaccine Injury Trust Fund: Revenue Exceeds
Current Need for Paying Claims, GAO/HEHS-00-67 at 7 (Washington D.C. March
2000).  See also Budget of the United States Government, Fiscal Year 2004,
App. at 405 (hereafter referred to as *FY 04 Budget*).
[11] The Black Lung Program includes a *Part B* program covering existing
cases caused by prior years of coal dust exposure funded with general
revenues and administered by the Social Security Administration.  A *Part
C* program, covering claims filed since 1973, was administered by DOL and
funded by a tax on coal and by *responsible operators.*  The Trust Fund
was established in 1977.  The older, *Part B* benefits continue to be
funded from the general fund, although it is now also administered by
DOL.  See Congressional Research Service, *The Black Lung Benefits
Program,* Edward Rappaport, June 12, 2002 (hereafter referred to as
*Rappaport*); U.S. General Accounting Office, Black Lung Program: Further
Improvements Can Be Made in Claims Adjudication GAO-HRD-90-75 (Washington
D.C. March 1990); FY 04 Budget at 664. The discussion in this chart refers
to the *Part C* program, unless otherwise indicated.
[12] Under the Act (30 U.S.C. S:S: 931, 932), Part C claims are to be
processed under an applicable state workers* compensation law approved by
the Secretary of Labor under the Act.  To date, no state workers*
compensation program has been approved by the Secretary. 20 C.F.R. S:
722.4 (2003).  See Black Lung Deskbook, Part I.B.; Rappaport at 4. 
Accordingly, under current practice, claims are filed with and adjudicated
by DOL and benefits paid by the mine operators or from the Fund, as
described above.
[13] Although the Fund that would be created by S. 1125 shares many
characteristics of a federal trust fund, it is not designated as a *trust
fund* in the bill and therefore is more properly designated for budgetary
purposes as a *special fund account.* See U.S General Accounting Office,
Federal Trust and Other Earmarked Funds: Answers to Frequently Asked
Questions, GAO-01-199SP (Washington D.C. Jan. 2001). For a general
discussion, see U.S. General Accounting Office, Principles of Federal
Appropriations Law, 2d Ed., Vol. IV, Chap. 17, Part D, *Trust Funds.*  A
special fund account is defined simply as a *federal fund account
earmarked by law for a specific purpose.*  U.S. General Accounting Office,
A Glossary of Terms Used in The Federal Budget Process: Exposure Draft,
GAO/AFMD-2.1.1 at 5 (Rev. Jan. 1993).  See also Office of Management and
Budget Circular No. A-11, S:S: 20.3, 20.11.  
[14] Although the Administrator is authorized to invest amounts in the
Fund, there is no explicit authority in the Act for investment income to
be credited to the Fund.  See 62 Comp. Gen. 70 (1982).  It is clear that
it is the intent of the drafters that investment income be credited to the
Fund.  See especially S: 222(b)(4).  Congress may wish to consider,
however, making this authority explicit.  See, e.g., 26 U.S.C. S:
9602(b)(3).
[15] A future Congress would be free, in the exercise of its legislative
power, to provide additional funds to implement any of this legislation. 
See, e.g., 36 Comp. Gen. 240, 242 (1956) ("It is fundamental * that one
Congress cannot bind a future Congress  and  that  the  Congress has full
power to make an appropriation in excess of a cost limitation contained in
the original authorization act.  This authority is exercised as an
incident to the power of the Congress to appropriate and regulate
expenditures of the public money.").  For example, see *Status of Fund,*
below.
[16] The fact that Congress has designated a fund as a *trust fund* does
not mean that the administering agency has a full range of fiduciary
obligations.  The scope of the trustee*s duties with respect to a trust
fund will necessarily depend on the substantive law creating those
duties.  United States v. Mitchell, 463 U.S. 206, 224 (1983).
[17] See 26 U.S.C. S: 9510(d)(3) (If the Fund *has insufficient funds to
pay all claims,* claims shall *be paid in full in the order in which they
are finally determined.*).
[18] See Report at 59 (the Administrator *holds authority to borrow from
commercial lending institutions amounts to offset short term losses in an
amount that does not exceed anticipated contributions for the following
year*).
[19] See U.S. General Accounting Office, Vaccine Injury Compensation:
Program Challenged to Settle Claims Quickly and Easily, GAO/HEHS-00-8
(Washington D.C. Dec. 1999) App. II.
[20] See Department of Labor, Employment Standards Administration,
*Compliance Guide to the Black Lung Benefits Act,* August 22, 2002
www.dol.gov/eas/regs/compliance/owcp/blbenact.html  (last visited Aug. 30,
2003) (hereafter referred to as *DOL Compliance Guide*).  See also
GAO-HRD-90-75, above.
[21] See GAO/HEHS-00-8, above, at 5.
[22] See GAO-HRD-90-75,  above, at 13; DOL Compliance Guide.
[23] See also GAO-HRD-90-75, above, at 13.
[24] In informal discussions with our office, DOL indicated that, because
the federal Black Lung program is coordinated closely with state workers*
compensation programs and because those state programs generally preclude
lawsuits for injuries covered under those programs, tort lawsuits related
to Black Lung disease would be problematical.
[25] The Act provided for a maximum permitted number of awards in its
early years of implementation. Under the Act, the Secretary must review,
on a quarterly basis, the number of awards of compensation made under the
Act.  For the first 48 months of program implementation, if the number of
such awards had exceeded a number specified in the statute, the Secretary
was to notify Congress.  Beginning 180 days after such notification, no
further petitions under the Act would have been permitted and limitations
on civil actions under the Act would have ceased to apply.  42 U.S.C. S:
300aa-34.  See H.R. Rep. No. 100-391(I) (1987) at 690-91.
[26] The evident expectation upon enactment of *Part C* authority was that
that program would be temporary and that eventually state workers*
compensation programs would process black lung claims. Elliot Coal Mining,
Inc. v. Director, Office of Workers* Compensation Programs, 17 F.3d 616,
627 (3d Cir. 1994).  See also Rappaport at 4.  The Act at one point
provided that no payment of benefits could be made under Part C after
1981.  See H.R. Rep. No. 95-151 (1977).  This provision was repealed by
the 1978 amendments to the Act.  Pub. L. No. 95-239, S: 7(d), 92 Stat. 97,
99, March 1, 1978.
[27]See GAO/HEHS-00-67, above.
[28]See GAO HRD-90-75, above.