Fairness in Asbestos Injury Resolution Act of 2006 or the FAIR Act of 2006 - Establishes in the Department of Labor the Office of Asbestos Disease Compensation (Office), to be headed by an Administrator who is responsible for processing claims for asbestos-related illnesses and paying compensation to eligible claimants. Declares that the purpose of such Office is to provide timely, fair compensation to claimants whose health has been adversely affected by exposure to asbestos, on a no-fault basis and in a nonadversarial manner.
Stays any asbestos claim pending in a state or federal court on the date of enactment of this Act, unless the presentation of evidence has begun before a jury or judge, or a verdict, final order, or final judgment has been entered by a trial court.
Sets forth: (1) procedures for the filing of claims, including those for multiple injuries and additional awards; and (2) allowable award amounts for asbestos disease, based upon the level of such disease and whether a claimant smokes or has smoked tobacco products.
Establishes: (1) the Asbestos Insurers Commission (Commission) to determine the amount each insurer participant is required to pay into the Asbestos Injury Claims Resolution Fund; and (2) the Asbestos Injury Claims Resolution Fund to pay asbestos-related injury claims.
Directs the Administrator to establish programs for individuals exposed to asbestos as well as for individuals at risk for developing asbestos-related medical conditions.
Establishes the National Mesothelioma Research and Treatment Program for the detection, prevention, treatment, and cure of malignant mesothelioma.
Vests in the United States Court of Appeals for the District of Columbia exclusive jurisdiction to review, under expedited consideration, any rules or regulations promulgated under this Act by the Administrator or the Commission.
Amends the federal criminal code to prohibit and establish penalties for fraud and false information in connection with Fund claims.
Amends the Occupational Safety and Health Act of 1970 to establish criminal penalties for willful violations of occupational standards for exposure to asbestos.
Amends the Toxic Substances Control Act to require the Administrator of the Environmental Protection Agency (EPA) to promulgate proposed and final regulations to prohibit the manufacture, processing, or distribution in commerce of asbestos containing products.
Requires disposal of asbestos containing products within three years after the enactment of this Act, with certain exemptions.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 3274 Placed on Calendar Senate (PCS)]
Calendar No. 460
109th CONGRESS
2d Session
S. 3274
To create a fair and efficient system to resolve claims of victims for
bodily injury caused by asbestos exposure, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 26, 2006
Mr. Specter (for himself and Mr. Leahy) introduced the following bill;
which was read the first time
June 5, 2006
Read the second time and placed on the calendar
_______________________________________________________________________
A BILL
To create a fair and efficient system to resolve claims of victims for
bodily injury caused by asbestos exposure, and for other purposes.
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 2006'' or the ``FAIR Act of 2006''.
(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. Auditing procedures.
Subtitle C--Medical Criteria
Sec. 121. Medical criteria requirements.
Subtitle D--Awards
Sec. 131. Amount.
Sec. 132. Medical monitoring.
Sec. 133. Payment.
Sec. 134. 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. Violations 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) Environmental Protection Agency supported studies have
determined that the raw vermiculite ore mined and milled in
Libby, Montana contained 21 to 26 percent asbestos, by weight.
The milled ore, resulting from the processing in Libby, which
was shipped out of Libby contained markedly reduced percentages
of asbestos. A 1982 Environmental Protection Agency-supported
study concluded that ore shipped out of Libby contained 0.3 to
7 percent asbestos, by weight.
(12) 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.
(13) 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.
(14) 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 nonoccupational 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.''.
(15) 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.''.
(16) Nothing in this Act is intended to increase the
Federal deficit or impose any burden on the taxpayer. The
Office of Asbestos Disease Compensation established under this
Act shall be privately funded by annual payments from defendant
participants that have been subject to asbestos liability and
their insurers. Section 406(b) of this Act expressly provides
that nothing in this Act shall be construed to create any
obligation of funding from the United States or to require the
United States to satisfy any claims if the amounts in the Fund
are inadequate. Any borrowing by the Fund is limited to monies
expected to be paid into the Fund, and the Administrator shall
have no fiscal authority beyond the amount of private money
coming into the Fund. This Act provides the Administrator with
broad enforcement authority to pursue debts to the Fund owed by
defendant participants or insurer participants and their
successors in interest.
(b) Purpose.--The purpose of this Act is to--
(1) create a privately funded, publicly administered fund
to provide the necessary resources for a fair and efficient
system to resolve asbestos injury claims that will provide
compensation for legitimate present and future claimants of
asbestos exposure as provided in this Act;
(2) provide compensation to those present and future
victims based on the severity of their injuries, while
establishing a system flexible enough to accommodate
individuals whose conditions worsens;
(3) relieve the Federal and State courts of the burden of
the asbestos litigation; and
(4) increase economic stability by resolving the asbestos
litigation crisis that has bankrupted companies with asbestos
liability, diverted resources from the truly sick, and
endangered jobs and pensions.
SEC. 3. DEFINITIONS.
In this Act, the following definitions shall apply:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the Office of Asbestos Disease Compensation
appointed under section 101(b).
(2) Asbestos.--The term ``asbestos'' includes--
(A) chrysotile;
(B) amosite;
(C) crocidolite;
(D) tremolite asbestos;
(E) winchite asbestos;
(F) richterite asbestos;
(G) anthophyllite asbestos;
(H) actinolite asbestos;
(I) 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;
(v) claims arising out of medical
malpractice; or
(vi) any claim arising under--
(I) the Americans with Disabilities
Act of 1990 (42 U.S.C. 12101 et seq.);
(II) title VII of the Civil Rights
Act of 1964 (42 U.S.C. 2000e et seq.);
(III) the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 621
et seq.);
(IV) the Equal Pay Act of 1963 (29
U.S.C. 206);
(V) the Family and Medical Leave
Act of 1993 (29 U.S.C. 2601 et seq.);
(VI) section 1979 of the Revised
Statutes of the United States (42
U.S.C. 1983); or
(VII) the Rehabilitation Act of
1973 (29 U.S.C. 701 et seq.).
(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, 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.
(19) 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.
(20) 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.
(21) 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.
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
nonadversarial manner, to individuals whose health has been
adversely affected by exposure to asbestos.
(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
required under this Act;
(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 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 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 terminal
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 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 section 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 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 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) 6 shall be appointed for a term of 1 year;
(B) 7 shall be appointed for a term of 2 years; and
(C) 7 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 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 120 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 and any other
appropriate paralegal assistance;
(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) Limitation.--
(A) 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 monetary award made (whether by the Administrator
initially or as a result of administrative review)
under the Fund on such claim.
(B) Review of proposed decision.--
(i) Reasonable fee.--If an individual seeks
a review of a proposed decision in accordance
with section 114(d) and is awarded
compensation, the representative of such
individual may, in lieu of seeking payment for
services rendered subject to the limitation
described under subparagraph (A), obtain a
reasonable attorney's fee to be paid from any
compensation recovered by the individual.
(ii) Calculation of reasonable fee.--Any
fee obtained under clause (i) shall be
calculated by multiplying a reasonable hourly
rate by the number of hours reasonably expended
on the claim of the individual.
(iii) Requirements for compensation.--A
representative of an individual shall not be
eligible to receive a fee under clause (i),
unless--
(I) such representative submits to
the Administrator detailed
contemporaneous billing records for any
work actually performed in the course
of representation of an individual;
(II) the Administrator finds, based
on billing records submitted by the
representative under subclause (I),
that the work for which compensation is
sought was reasonably performed, and
that the requested hourly fee is
reasonable; and
(III) the claimant seeking a review
of a proposed decision has been awarded
monetary compensation by the
Administrator.
(iv) No fee for no compensation.--If the
claimant is denied any compensation after
review of the claim, the claimant's
representative may not receive a fee from
either the claimant or the Fund.
(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.--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.
(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) Immediate Startup.--
(1) In general.--Subject to section 101(d), the
Administrator may--
(A) start receiving, reviewing, and deciding claims
immediately upon the date of enactment of this Act; and
(B) reimburse the Department of Labor from the Fund
for any expense incurred--
(i) before that date of enactment in
preparation for carrying out any of the
responsibilities of the Administrator under
this Act; and
(ii) during the 60-day period following
that date of enactment to carry out such
responsibilities.
(2) 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 this title and the operation of the
Fund under title II, including procedures for the expediting of
terminal health claims, and processing of claims through the
claims facility.
(b) Interim Personnel and Contracting.--The Secretary of Labor and
the Assistant Secretary of Labor for the Employment Standards
Administration shall 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
including entering into contracts on an expedited or sole source basis
during the startup period for the purpose of processing claims or
providing financial analysis or assistance. 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) Terminal Health Claims.--
(1) In general.--The Administrator shall develop
procedures, as provided in section 106(f), to provide for an
expedited process to categorize, evaluate, and pay terminal
health claims. Such procedures, as provided in section 106(f),
shall include, pending promulgation of final regulations,
adoption of interim regulations as needed for processing of
terminal health claims.
(2) Eligible terminal health claims.--A claim shall qualify
for treatment as a terminal health claim if--
(A) the claimant is living and provides a diagnosis
of mesothelioma meeting the requirements of section
121(d)(9);
(B) the claimant is living and provides a credible
declaration or affidavit, from a diagnosing 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 due to
such asbestos-related illness; or
(C) the claimant is the spouse or child of an
eligible terminal 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 a malignant
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 terminal health claims.--The Administrator
may, in final regulations promulgated under section 101(c),
designate additional categories of claims that qualify as
terminal health claims under this subsection except that
exceptional medical claims may not proceed.
(4) Claims facility.--To facilitate the prompt payment of
terminal health claims prior to the Fund being certified as
operational, the Administrator shall contract with a claims
facility, which applying the medical criteria of section 121,
shall process and pay claims in accordance with section
106(f)(2). 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 a claims
facility for the processing of claims (except for exceptional
medical claims) in accordance with this title.
(d) Prioritization of Claims.--The Administrator shall, in final
regulations promulgated under section 101(c), designate categories of
claims to be handled on an expedited basis. The Administrator shall
prioritize the processing and payment of health claims involving
claimants with the most serious health claims. The Administrator shall
also prioritize claims from claimants who face 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 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 on the date of enactment
of this Act, other than a claim to which section 403(d)(2)
applies or as otherwise provided in section 402(f), stayed.
(2) Terminal health claims.--
(A) Procedures for settlement of terminal health
claims.--
(i) In general.--Any person that has filed
a terminal 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, shall seek a settlement in accordance with
this paragraph. Any person with a terminal
health claim, as provided under subsection
(c)(2), that arises after such date of
enactment shall seek a settlement in accordance
with this paragraph.
(ii) Filing.--
(I) In general.--At any time before
the Fund or claims facility is
certified as operational and paying
terminal health claims at a reasonable
rate, any person with a terminal 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) Exception.--Any person who
seeks compensation for an exigent
health claim from a trust in accordance
with section 402(f) shall not be
eligible to seek a settlement or
settlement offer under this paragraph.
(iii) Terminal health claim information.--
To file a terminal 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
collateral source compensation under
section 134, and copies of all
settlement agreements and related
documents sufficient to show the
accuracy of that amount.
(II) A description of any claims
for compensation for an asbestos
related injury or disease filed by the
claimant with any trust or class action
trust, and the status or disposition or
any such claims.
(III) All information that the
claimant would be required to provide
to the Administrator in support of a
claim under sections 113(c) and 121.
(IV) 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.
(V) For terminal 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. Identification of all
potential participants shall be made in
good faith by the claimant.
(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 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) Website.--
(I) Posting.--The Administrator or
claims facility shall post the
information described in subclause (II)
to a secure website, accessible on a
passcode-protected basis to
participants.
(II) Required information.--The
website established under subclause (I)
shall contain a listing of--
(aa) each claimant that has
filed a notice of intent to
seek a settlement or claim
under this clause;
(bb) the name of such
claimant; and
(cc) if applicable--
(AA) the name of
the court where such
claim was filed;
(BB) the case or
docket number of such
claim; and
(CC) the date such
claim was filed.
(III) Prohibitions.--The website
established under subclause (I) shall
not contain specific health or medical
information or social security numbers.
(IV) Participant access.--A
participant's access to the website
established under subclause (I) shall
be limited on a need to know basis, and
participants shall not disclose or sell
data, or retain data for purposes other
than paying an asbestos claim.
(V) Violations.--Any person or
other entity that violates any
provision of this clause, including by
breaching any data posted on the
website, shall be subject to an
injunction, or civil penalties, or
both.
(vi) 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 a terminal health claim.
(II) Requirements met.--If the
Administrator or claims facility
determines that the claim meets the
requirements of a terminal 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 (xiii).
(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
a terminal 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.
(vii) 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 (vi), the
Administrator or claims facility shall within
10 days after the end of the 60-day period
referred to under clause (vi)(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. The Administrator
or claims facility shall list all terminal
health claims for which notice has been
provided under this clause on the website
established under clause (v).
(viii) Failure to pay.--If the
Administrator or claims facility does not pay
the award as required under clause (xiii), the
Administrator shall refer the certified claim
within 10 days as a certified terminal health
claim to the defendants in the pending Federal
and State court action or to the potential
defendants identified under clause (iii)(IV)
for terminal claims arising after the date of
enactment of this Act. The Administrator or
claims facility shall list all terminal health
claims for which notice has been provided under
this clause on the website established under
clause (v).
(ix) Settlement offer.--Any participant or
participants may, within 30 days after receipt
of such notice as provided under clause (vii)
or (viii), 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 would receive
under section 131. If the aggregate amount
offered by all participants 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 for claims
pending before the date of enactment of this
Act 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 terminal health claim was
certified by the Administrator or claims
facility under clause (vi).
(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
participants equals 100 percent of what the
claimant would receive under the Fund, the
claimant shall accept such settlement in
writing.
(xi) Opportunity to cure.--If the
settlement offer is rejected for being less
than what the claimant would receive under the
Fund, the participants 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 would receive under
the Fund or if participants fail to make an
amended offer, the claimant shall recover 150
percent of what the claimant would receive
under the Fund. If the amount of the amended
settlement offer made by the Administrator,
claims facility, or participants equals 150
percent of what the claimant would receive
under the Fund, the claimant shall accept such
settlement in writing.
(xii) 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 participant,
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 terminal claimants.--For
other terminal 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 participants,
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, and penalty payment
if applicable, the claimant shall
release any outstanding asbestos
claims.
(xiii) Recovery of costs.--
(I) In general.--Any participant
whose settlement offer is accepted may
recover the cost of such settlement by
deducting from the participant's next
and subsequent contributions to the
Fund the full amount of the payment
made by such participant to the
terminal health claimant, unless the
Administrator finds, on the basis of
clear and convincing evidence, that the
participant'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 participants in title II.
(II) Reimbursement.--
Notwithstanding subclause (I), if the
deductions from the 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 participant
for such remaining cost not later than
6 months after the date of the third
scheduled Fund contribution.
(xiv) Failure to make offer.--If
participants fail to make a settlement offer
within the 30-day period described under clause
(ix) or make amended offers within the 10
business day cure period described 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).
(xv) Failure to pay.--If a participant
fails to pay an accepted settlement offer
within the payment schedule under clause (xii),
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) Stay terminated and reversion to court.--If 9
months after a terminal health claim has been filed
under subparagraph (A), a claimant has not received a
settlement under subparagraph (A)(xii) and the
Administrator has not certified to Congress that the
Fund or claims facility is operational and paying
terminal health claims at a reasonable rate, the stay
of claim provided under paragraph (1) shall be lifted
and such terminal health claimant, may immediately 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. If a claimant has failed
to file a claim or notice of intent to seek a
settlement, as required under subparagraph (A)(ii), the
provisions of this subparagraph shall not apply.
(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 participant
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
participant's next and subsequent contributions
to the Fund for that amount of the payment made
by such participant to the terminal health
claimant.
(3) Pursual of nonterminal asbestos claims in federal or
state court.--
(A) In general.--
(i) Pursual of claims.--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 nonterminal 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 (if the
claim is otherwise within the jurisdiction of
the court) or State court located within--
(I) the State of residence of the
claimant; or
(II) the State in which the
asbestos exposure occurred.
(ii) Rule of construction.--This
subparagraph shall not be construed as creating
a new Federal cause of action.
(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 capable of operating 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
nonterminal 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 have
been stayed or not filed may be filed or
reinstated in the appropriate Federal or State
court.
(4) Reservation of rights.--Except as otherwise provided in
this Act, participation in the offer and settlement process
under this subsection shall not affect or prejudice any rights
or defenses a party might have in any litigation.
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
sections 106(f)(2) and 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.--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) Nonmalignant diseases.--If a claimant has
previously filed a timely initial claim for
compensation for any nonmalignant disease level, there
shall be no limitations period applicable to the filing
of claims by the claimant for additional awards for
higher disease levels based on the progression of the
nonmalignant 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.
(4) Effect on pending claims.--
(A) In general.--Subject to subparagraphs (C) and
(D), if an asbestos claim that was timely filed within
10 years before the date of enactment of this Act is
pending as of that date and is preempted under section
403(e), a claim under this Act for the same disease or
condition may be filed with the Office under this
section not later than 5 years after such date of
enactment.
(B) Veterans.--For purposes of subparagraph (A),
any person with a timely filed asbestos claim shall
include any person who--
(i) is a veteran, as that term is defined
under section 101(2) of title 38, United States
Code; and
(ii) on the date of enactment of this Act--
(I) is receiving benefits for
disability, caused by exposure to
asbestos, under sections 1110 (wartime
disability), 1131 (peacetime
disability), or 3102 (training and
rehabilitation) of title 38, United
States Code; or
(II) has submitted an application
for such benefits to the Department of
Veterans Affairs that is pending or is
on administrative or judicial appeal.
(C) 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 noncontingent 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.
(D) Dormant claims.--A claimant shall have the
benefit of the special limitations period under
subparagraph (A) only if the claimant provides
documentation that the claimant has filed a pleading,
served a discovery response or request for discovery,
or taken other action to prosecute the pending asbestos
claim within the 3-year period ending May 25, 2006,
except that the failure to take such action to
prosecute the pending asbestos claim shall not preclude
the application of the special limitations period under
subparagraph (A) if the claimant shows either--
(i) that prosecution of the claim was
stayed during all or part of the 3-year period
ending May 25, 2006, by court order or
operation of law; or
(ii) that the claimant has taken reasonable
steps to prosecute the claim within the 3-year
period ending May 25, 2006, and that the period
of inactivity is the result of the ordinary,
generally applicable procedures or practices of
the court in which such asbestos claim was
pending.
(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, after the Fund has been certified
subject to section 106(f)(3)(E) has not provided a proposed decision to
the claimant under subsection (b) within 180 days after the filing of
the claim, the claim shall be deemed accepted and the claimant shall be
entitled to payment under section 133(a)(2). If the Administrator
subsequently rejects the claim the claimant shall receive no further
payments under section 133. If the Administrator subsequently rejects
the claim in part, the Administrator shall adjust future payments due
the claimant under section 133 accordingly. In no event may the
Administrator recover amounts properly paid under this section from a
claimant.
(d) Review of Proposed Decisions.--
(1) Right to hearing.--
(A) In general.--Any claimant not satisfied with a
proposed decision of the Administrator under subsection
(b) shall be entitled, on written request made within
90 days after the date of the issuance of the decision,
to a hearing on the claim of that claimant before a
representative of the Administrator. At the hearing,
the claimant shall be entitled to present oral evidence
and written testimony in further support of that claim.
(B) Conduct of hearing.--When practicable, the
hearing will be set at a time and place convenient for
the claimant. In conducting the hearing, the
representative of the Administrator shall not be bound
by common law or statutory rules of evidence, by
technical or formal rules of procedure, or by section
554 of title 5, United States Code, except as provided
by this Act, but shall conduct the hearing in such
manner as to best ascertain the rights of the claimant.
For this purpose, the representative shall receive such
relevant evidence as the claimant adduces and such
other evidence as the representative determines
necessary or useful in evaluating the claim.
(C) Request for subpoenas.--
(i) In general.--A claimant may request a
subpoena but the decision to grant or deny such
a request is within the discretion of the
representative of the Administrator. The
representative may issue subpoenas for the
attendance and testimony of witnesses, and for
the production of books, records,
correspondence, papers, or other relevant
documents. Subpoenas are issued for documents
only if such documents are relevant and cannot
be obtained by other means, and for witnesses
only where oral testimony is the best way to
ascertain the facts.
(ii) Request.--A claimant may request a
subpoena only as part of the hearing process.
To request a subpoena, the requester shall--
(I) submit the request in writing
and send it to the representative as
early as possible, but no later than 30
days after the date of the original
hearing request; and
(II) explain why the testimony or
evidence is directly relevant to the
issues at hand, and a subpoena is the
best method or opportunity to obtain
such evidence because there are no
other means by which the documents or
testimony could have been obtained.
(iii) Fees and mileage.--Any person
required by such subpoena to attend as a
witness shall be allowed and paid the same fees
and mileage as are paid witnesses in the
district courts of the United States. Such fees
and mileage shall be paid from the Fund.
(2) Review of written record.--In lieu of a hearing under
paragraph (1), any claimant not satisfied with a proposed
decision of the Administrator shall have the option, on written
request made within 90 days after the date of the issuance of
the decision, of obtaining a review of the written record by a
representative of the Administrator. If such review is
requested, the claimant shall be afforded an opportunity to
submit any written evidence or argument which the claimant
believes relevant.
(e) Final Decisions.--
(1) In general.--If the period of time for requesting
review of the proposed decision expires and no request has been
filed, or if the claimant waives any objections to the proposed
decision, the Administrator shall issue a final decision. If
such decision materially differs from the proposed decision,
the claimant shall be entitled to review of the decision under
subsection (d).
(2) Time and content.--If the claimant requests review of
all or part of the proposed decision the Administrator shall
issue a final decision on the claim not later than 180 days
after the request for review is received, if the claimant
requests a hearing, or not later than 90 days after the request
for review is received, if the claimant requests review of the
written record. Such decision shall be in writing and contain
findings of fact and conclusions of law.
(f) Representation.--A claimant may authorize an attorney or other
individual to represent him or her in any proceeding under this Act.
SEC. 115. AUDITING PROCEDURES.
(a) In General.--
(1) Development.--The Administrator shall develop methods
for auditing and evaluating the medical and exposure evidence
submitted as part of 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.
(C) Submission of valid evidence.--Claimants shall
be allowed to submit valid evidence if prior evidence
is found unacceptable for purposes of establishing
eligibility for an award under this Act.
(b) Review of Certified B-Readers.--
(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.
(5) Disqualification.--Any certified B-reader who has
received compensation before the date of enactment of this Act
for assigning an ILO grade level to an x-ray, where the amount
of compensation depended on the assigned ILO grade level, is
disqualified from inclusion on the Administrator's 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.--
(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) PO<INF>2</INF>.--The term ``PO<INF>2</INF>'' means the
partial pressure (tension) of oxygen, which measures the amount
of dissolved oxygen in the blood.
(13) Pulmonary function testing.--The term ``pulmonary
function testing'' means spirometry testing that is in material
compliance with the quality criteria established by the
American Thoracic Society and is performed on equipment which
is in material compliance with the standards of the American
Thoracic Society for technical quality and calibration.
(14) Substantial occupational exposure to asbestos.--
(A) In general.--The term ``substantial
occupational exposure'' means employment in an industry
and an occupation where for a substantial portion of a
normal work year for that occupation, the claimant--
(i) handled raw asbestos fibers;
(ii) fabricated asbestos-containing
products so that the claimant in the
fabrication process was exposed to raw asbestos
fibers;
(iii) altered, repaired, or otherwise
worked with an asbestos-containing product such
that the claimant was exposed on a regular
basis to asbestos fibers; or
(iv) worked in close proximity to other
workers engaged in the activities described
under clause (i), (ii), or (iii), such that the
claimant was exposed on a regular basis to
asbestos fibers.
(B) Regular basis.--In this paragraph, the term
``on a regular basis'' means on a frequent or recurring
basis.
(15) TLC.--The term ``TLC'' means total lung capacity,
which is the total volume of air in the lung after maximal
inspiration.
(16) Weighted occupational exposure.--
(A) In general.--The term ``weighted occupational
exposure'' means exposure for a period of years
calculated according to the exposure weighting formula
under subparagraphs (B) through (E).
(B) Moderate exposure.--Subject to subparagraph
(E), each year that a claimant's primary occupation,
during a substantial portion of a normal work year for
that occupation, involved working in areas immediate to
where asbestos-containing products were being
installed, repaired, or removed under circumstances
that involved regular airborne emissions of asbestos
fibers, shall count as 1 year of substantial
occupational exposure.
(C) Heavy exposure.--Subject to subparagraph (E),
each year that a claimant's primary occupation, during
a substantial portion of a normal work year for that
occupation, involved the direct installation, repair,
or removal of asbestos-containing products such that
the person was exposed on a regular basis to asbestos
fibers, shall count as 2 years of substantial
occupational exposure.
(D) Very heavy exposure.--Subject to subparagraph
(E), each year that a claimant's primary occupation,
during a substantial portion of a normal work year for
that occupation, was in primary asbestos manufacturing,
a World War II shipyard, or the asbestos insulation
trades, such that the person was exposed on a regular
basis to asbestos fibers, shall count as 4 years of
substantial occupational exposure.
(E) Dates of exposure.--Each year of exposure
calculated under subparagraphs (B), (C), and (D) that
occurred before 1976 shall be counted at its full
value. Each year from 1976 to 1986 shall be counted as
\1/2\ of its value. Each year after 1986 shall be
counted as \1/10\ of its value.
(F) Other claims.--Individuals who do not meet the
provisions of subparagraphs (A) through (E) and believe
their post-1976 or post-1986 exposures exceeded the
Occupational Safety and Health Administration standard
may submit evidence, documentation, work history, or
other information to substantiate noncompliance with
the Occupational Safety and Health Administration
standard (such as lack of engineering or work practice
controls, or protective equipment) such that exposures
would be equivalent to exposures before 1976 or 1986,
or to documented exposures in similar jobs or
occupations where control measures had not been
implemented. Claims under this subparagraph shall be
evaluated on an individual basis by a Physicians Panel.
(b) Medical Evidence.--
(1) Latency.--Unless otherwise specified, all diagnoses of
an asbestos-related disease for a level under this section
shall be accompanied by--
(A) a statement by the physician providing the
diagnosis that at least 10 years have elapsed between
the date of first exposure to asbestos or asbestos-
containing products and the diagnosis; or
(B) a history of the claimant's exposure that is
sufficient to establish a 10-year latency period
between the date of first exposure to asbestos or
asbestos-containing products and the diagnosis.
(2) Diagnostic guidelines.--All diagnoses of asbestos-
related diseases shall be based upon--
(A) for disease Levels I through V, in the case of
a claimant who was living at the time the claim was
filed--
(i) a physical examination of the claimant
by the physician providing the diagnosis;
(ii) an evaluation of smoking history and
exposure history before making a diagnosis;
(iii) an x-ray reading by a certified B-
reader; and
(iv) pulmonary function testing in the case
of disease Levels III, IV, and V;
(B) for disease Levels I through V, in the case of
a claimant who was deceased at the time the claim was
filed, a report from a physician based upon a review of
the claimant's medical records which shall include--
(i) pathological evidence of the
nonmalignant asbestos-related disease; or
(ii) an x-ray reading by a certified B-
reader;
(C) for disease Levels VI through IX, in the case
of a claimant who was living at the time the claim was
filed--
(i) a physical examination by the
claimant's physician providing the diagnosis;
or
(ii) a diagnosis of such a malignant
asbestos-related disease, as described in this
section, by a board-certified pathologist; and
(D) for disease Levels VI through IX, in the case
of a claimant who was deceased at the time the claim
was filed--
(i) a diagnosis of such a malignant
asbestos-related disease, as described in this
section, by a board-certified pathologist; and
(ii) a report from a physician based upon a
review of the claimant's medical records.
(3) Credibility of medical evidence.--To ensure the medical
evidence provided in support of a claim is credible and
consistent with recognized medical standards, a claimant under
this title may be required to submit--
(A) x-rays or computerized tomography;
(B) detailed results of pulmonary function tests;
(C) laboratory tests;
(D) tissue samples;
(E) results of medical examinations;
(F) reviews of other medical evidence; and
(G) medical evidence that complies with recognized
medical standards regarding equipment, testing methods,
and procedure to ensure the reliability of such
evidence as may be submitted.
(c) Exposure Evidence.--
(1) In general.--To qualify for any disease level, the
claimant shall demonstrate--
(A) a minimum exposure to asbestos or asbestos-
containing products;
(B) the exposure occurred in the United States, its
territories or possessions, or while a United States
citizen, while an employee of an entity organized under
any Federal or State law regardless of location, or
while a United States citizen while serving on any
United States flagged or owned ship, provided the
exposure results from such employment or service; and
(C) any additional asbestos exposure requirement
under this section.
(2) Proof of exposure.--
(A) Affidavits.--Exposure to asbestos sufficient to
satisfy the exposure requirements for any disease level
may be established by a detailed and specific affidavit
that--
(i) is filed by--
(I) the claimant; or
(II) if the claimant is deceased, a
coworker or a family member of the
claimant; and
(ii) is found in proceedings under this
title to be--
(I) reasonably reliable, attesting
to the claimant's exposure; and
(II) credible and 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 and credible evidence.
(C) Additional evidence.--The Administrator may
require submission of other or additional evidence of
exposure, if available, for a particular claim when
determined necessary, as part of the minimum
information required under section 113(c).
(D) Evaluation.--The Administrator shall prescribe
procedures to randomly evaluate the affidavits
submitted to satisfy the exposure requirements for any
disease level.
(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(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 and 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, including
proximity, 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 and
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 subparagraph
(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 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,
other than silica, 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,
other than silica, 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) PO<INF>2</INF> 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,
other than silica, 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;
(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
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 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 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).
(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.
(E) Mesothelioma cases.--
(i) In general.--The Physicals Panel shall
grant priority status to--
(I) all Level IX claims with other
identifiable asbestos exposure as
provided under paragraph (9)(B)(iv);
and
(II) all Level IX claims that are
filed as exceptional medical claims.
(ii) Physician panel.--If the Physicians
Panel issues a certificate of medical
eligibility, the claimant shall be deemed to
qualify for Level IX compensation. If the
Physicians Panel rejects the claim, and the
Administrator deems it rejected, the claimant
may immediately seek judicial review under
section 302.
(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<DELETED>,</DELETED>
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 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.
(11) Asbestos exposure as the result of a natural or other
disaster.--
(A) In general.--A claimant may file an exceptional
medical claim with the Fund if such claimant has been
exposed to asbestos in any area that is subject to a
declaration by the President of a major disaster, as
defined under section 102 of the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (42 U.S.C.
5122), as the result of--
(i) the attack on the World Trade Center in
New York, New York on September 11, 2001; or
(ii) Hurricane Katrina or Hurricane Rita of
2005 in the Gulf Region of the United States.
(B) Review of evidence.--In reviewing medical
evidence submitted by a claimant under subparagraph
(A)(i) or (ii), the Physicians Panel shall take into
consideration the unique nature of these disasters and
the potential for asbestos exposure resulting from
these disasters.
(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:
Level Scheduled Condition or Disease Scheduled Value
I Asbestosis/Pleural Disease A Medical Monitoring
II Mixed Disease With Impairment $25,000
III Asbestosis/Pleural Disease B $100,000
IV Severe Asbestosis $400,000
V Disabling Asbestosis $850,000
VI Other Cancer $200,000
VII Lung Cancer With Pleural Disease smokers, $300,000;
ex-smokers, $725,000;
nonsmokers, $800,000
VIII Lung Cancer With Asbestosis smokers, $600,000;
ex-smokers, $975,000;
nonsmokers, $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.--The Administrator may increase
awards for Level IX claimants who have dependent
children so long as the increase under this paragraph
is cost neutral. Such increased awards shall be paid
for by decreasing awards for claimants other than Level
IX, so long as no award levels are decreased more than
10 percent.
(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 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) Lump-sum payments.--
(A) In general.--The Administrator shall develop
guidelines to provide for 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.
(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 terminal 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.
(D) Prioritization of claims.--The Administrator
shall, in final regulations promulgated under section
101(c), designate categories of claims to be handled on
an expedited basis. The Administrator shall prioritize
the processing and payment of health claims involving
claimants with the most serious health risks. The
Administrator shall also prioritize claims from
claimants who face extreme financial hardship.
(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. 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.--
(1) In general.--The payment of an award to an asbestos
claimant under section 106 or 133 shall not affect any claim of
an asbestos claimant against--
(A) an insurance carrier with respect to insurance;
or
(B) against any person or governmental entity with
respect to worker's compensation, healthcare, or
disability.
(2) Rule of construction.--Nothing in this subsection shall
be construed to authorize the pursuit of a claim that is
preempted under section 403.
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) 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.
(3) Indemnitee.--The term ``indemnitee'' means a person
against whom any asbestos claim has been asserted before
December 31, 2002, who has received from any other person, or
on whose behalf a sum has been paid by such other person to any
third person, in settlement, judgment, defense, or indemnity in
connection with an alleged duty with respect to the defense or
indemnification of such person concerning that asbestos claim,
other than under a policy of insurance or reinsurance.
(4) 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.
(5) 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.
(6) 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).
(7) Asbestos premises claim.--The term ``asbestos premises
claim''--
(A) means an asbestos claim against a current or
former premises owner or landowner, or person
controlling or possessing premises or land, alleging
injury or death caused by exposure to asbestos on such
premises or land or by exposure to asbestos carried off
such premises or land on the clothing or belongings of
another person; and
(B) includes any such asbestos claim against a
current or former employer alleging injury or death
caused by exposure to asbestos on premises or land
owned, controlled or possessed by the employer, if such
claim is not a claim for benefits under a workers'
compensation law or veterans' benefits program.
(8) Asbestos premises defendant participant.--The term
``asbestos premises defendant participant'' means any defendant
participant for which 95 percent or more of its prior asbestos
expenditures relate to asbestos premises claims against that
defendant participant.
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(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 30 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 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.
(6) Asbestos premises defendant participants.--
(A) In general.--Asbestos premises defendant
participants that would be included in Tier II, III, IV
or V according to their prior asbestos expenditures
shall, after 5 years of the Fund being operational,
instead be assigned to the immediately lower tier, such
that--
(i) an asbestos premises defendant
participant that would be assigned to Tier II
shall instead be assigned to Tier III;
(ii) an asbestos premises defendant
participant that would be assigned to Tier III
shall instead be assigned to Tier IV;
(iii) an asbestos premises defendant
participant that would be assigned to Tier IV
shall instead be assigned to Tier V; and
(iv) an asbestos premises defendant
participant that would be assigned to Tier V
shall instead be assigned to Tier VI.
(B) Return to original tier.--The Administrator may
return asbestos premises defendant participants to
their original tier, on a yearly basis, if the
Administrator determines that the additional revenues
that would be collected are needed to preserve the
solvency of the Fund.
(e) Tier Placement and Costs.--
(1) Permanent tier placement.--After a defendant
participant or affiliated group is assigned to a tier and
subtier under section 204(i)(6), the participant or affiliated
group shall remain in that tier and subtier throughout the life
of the Fund, regardless of subsequent events, including--
(A) the filing of a petition under a chapter of
title 11, United States Code;
(B) a discharge of debt in bankruptcy;
(C) the confirmation of a plan of reorganization;
or
(D) the sale or transfer of assets to any other
person or affiliated group, unless the Administrator
finds that the information submitted by the participant
or affiliated group to support its inclusion in that
tier was inaccurate.
(2) Costs.--Payments to the Fund by all persons that are
the subject of a case under a chapter of title 11, United
States Code, after the date of enactment of this Act--
(A) shall constitute costs and expenses of
administration of the case under section 503 of title
11, United States Code, and shall be payable in
accordance with the payment provisions under this
subtitle notwithstanding the pendency of the case under
that title 11;
(B) shall not be stayed or affected as to
enforcement or collection by any stay or injunction
power of any court; and
(C) shall not be impaired or discharged in any
current or future case under title 11, United States
Code.
(f) Superseding Provisions.--
(1) In general.--All of the following shall be superseded
in their entireties by this Act:
(A) The treatment of any asbestos claim in any plan
of reorganization with respect to any debtor included
in Tier I.
(B) Any asbestos claim against any debtor included
in Tier I.
(C) Any agreement, understanding, or undertaking by
any such debtor or any third party with respect to the
treatment of any asbestos claim filed in a debtor's
bankruptcy case or with respect to a debtor before the
date of enactment of this Act, whenever such debtor's
case is either still pending, if such case is pending
under a chapter other than chapter 11 of title 11,
United States Code, or subject to confirmation or
substantial consummation of a plan of reorganization
under chapter 11 of title 11, United States Code.
(2) Prior agreements of no effect.--Notwithstanding section
403(c)(3), any plan of reorganization, agreement,
understanding, or undertaking by any debtor (including any pre-
petition agreement, understanding, or undertaking that requires
future performance) or any third party under paragraph (1), and
any agreement, understanding, or undertaking entered into in
anticipation, contemplation, or furtherance of a plan of
reorganization, to the extent it relates to any asbestos claim,
shall be of no force or effect, and no person shall have any
right or claim with respect to any such agreement,
understanding, or undertaking.
SEC. 203. SUBTIERS.
(a) In General.--
(1) Subtier liability.--Except as otherwise provided under
subsections (b), (d), and (l) of section 204, persons or
affiliated groups shall be included within Tiers I through VII
and shall pay amounts to the Fund in accordance with this
section.
(2) Revenues.--
(A) In general.--For purposes of this section,
revenues shall be determined in accordance with
generally accepted accounting principles, consistently
applied, using the amount reported as revenues in the
annual report filed with the Securities and Exchange
Commission in accordance with the Securities Exchange
Act of 1934 (15 U.S.C. 78a et seq.) for the most recent
fiscal year ending on or before December 31, 2002. If
the defendant participant or affiliated group does not
file reports with the Securities and Exchange
Commission, revenues shall be the amount that the
defendant participant or affiliated group would have
reported as revenues under the rules of the Securities
and Exchange Commission in the event that it had been
required to file.
(B) Insurance premiums.--Any portion of revenues of
a defendant participant that is derived from insurance
premiums shall not be used to calculate the payment
obligation of that defendant participant under this
subtitle.
(C) Debtors.--Each debtor's revenues shall include
the revenues of the debtor and all of the direct or
indirect majority-owned subsidiaries of that debtor,
except that the pro forma revenues of a person that is
included in Subtier 2 of Tier I shall not be included
in calculating the revenues of any debtor that is a
direct or indirect majority owner of such Subtier 2
person. If a debtor or affiliated group includes a
person in respect of whose liabilities for asbestos
claims a class action trust has been established, there
shall be excluded from the 2002 revenues of such debtor
or affiliated group--
(i) all revenues of the person in respect
of whose liabilities for asbestos claims the
class action trust was established; and
(ii) all revenues of the debtor and
affiliated group attributable to the historical
business operations or assets of such person,
regardless of whether such business operations
or assets were owned or conducted during the
year 2002 by such person or by any other person
included within such debtor and affiliated
group.
(b) Tier I Subtiers.--
(1) In general.--Each debtor in Tier I shall be included in
subtiers and shall pay amounts to the Fund as provided under
this section.
(2) Subtier 1.--
(A) In general.--All persons that are debtors with
prior asbestos expenditures of $1,000,000 or greater,
shall be included in Subtier 1.
(B) Payment.--Each debtor included in Subtier 1
shall pay on an annual basis 1.67024 percent of the
debtor's 2002 revenues.
(C) Other assets.--The Administrator, at the sole
discretion of the Administrator, may allow a Subtier 1
debtor to satisfy its funding obligation under this
paragraph with assets other than cash if the
Administrator determines that requiring an all-cash
payment of the debtor's funding obligation would render
the debtor's reorganization infeasible.
(D) Liability.--
(i) In general.--If a person who is subject
to a case pending under a chapter of title 11,
United States Code, as defined in section
201(3)(A)(i), does not pay when due any payment
obligation for the debtor, the Administrator
shall have the right to seek payment of all or
any portion of the entire amount due (as well
as any other amount for which the debtor may be
liable under sections 223 and 224) from any of
the direct or indirect majority-owned
subsidiaries under section 201(3)(A)(ii).
(ii) Cause of action.--Notwithstanding
section 221(e), this Act shall not preclude
actions among persons within a debtor under
section 201(3)(A) (i) and (ii) with respect to
the payment obligations under this Act.
(iii) Right of contribution.--
(I) In general.--Notwithstanding
any other provision of this Act, if a
direct or indirect majority-owned
foreign subsidiary of a debtor
participant (with such relationship to
the debtor participant as determined on
the date of enactment of this Act) is
or becomes subject to any foreign
insolvency proceedings, and such
foreign direct or indirect-majority
owned subsidiary is liquidated in
connection with such foreign insolvency
proceedings (or if the debtor
participant's interest in such foreign
subsidiary is otherwise 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.
(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.
(5) Calculation of unencumbered assets.--Unencumbered
assets shall be calculated as the Subtier 2 or 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.
(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 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
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, and such
settlement, judgment, defense, or indemnity costs
constitute 75 percent or more of the total prior
asbestos expenditures by the person or affiliated
group.
(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.--
(1) Payment.--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:
(A) The participant or affiliated group has
satisfied its obligations under this subtitle during
the 30 annual payment cycles of the operation of the
Fund.
(B) The amount received by the Fund from defendant
participants, excluding any amounts rebated to
defendant participants under subsections (d) and (m),
equals the maximum aggregate payment obligation of
section 202(a)(2).
(2) Limitation.--
(A) Definition.--In this paragraph, the term
``affiliated group'' shall include any defendant
participant that is an ultimate parent.
(B) In general.--For any affiliated group, the
total payment in any year, including any guaranteed
payment surcharge under subsection (l) and any
bankruptcy trust guarantee surcharge under section
222(c), shall not exceed the lesser of $16,702,400 or
1.67024 percent of the revenues of the affiliated group
for the most recent fiscal year ending on or before
December 31, 2002, or for the most recent 12-month
fiscal year as of the date the limitation is applied,
whichever is greater.
(C) Exception.--The limitation in this paragraph
shall not apply to defendant participants in Tier I or
to any affiliated group whose revenues for the most
recent fiscal year ending on or before December 31,
2002, or for the most recent 12-month fiscal year as of
the date the limitation applied, whichever is greater,
exceeds $1,000,000,000.
(D) Determinations.--The revenues of the affiliated
group shall be determined in accordance with section
203(a)(2), except for the applicable date. An
affiliated group that claims a reduction in its payment
in any year shall file with the Administrator, in
accordance with procedures prescribed by the
Administrator, sufficient information to allow the
Administrator to determine the amount of any such
reduction in that year. If as a result of the
application of the limitation provided in this
paragraph an affiliated group is exempt from paying all
or part of a guaranteed payment surcharge or bankruptcy
trust surcharge, then the reduction in the affiliated
group's payment obligation due to the limitation in
this subsection shall be redistributed in accordance
with subsection (l).
(E) Rule of construction.--Nothing in this
paragraph shall be construed as reducing the minimum
aggregate annual payment obligation of defendant
participants as provided under subsection (h).
(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.--Any defendant participant in any
tier 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 an adjustment by demonstrating to the
satisfaction of the Administrator that the amount of
its payment obligation would materially and adversely
affect the defendant participant's ability to continue
its business and to pay or satisfy its debts generally
as and when they come due. Such an adjustment shall be
in an amount that in the judgment of the Administrator
is reasonably necessary to prevent such material and
adverse effect on the defendant participant's ability
to continue its business and to pay or satisfy its
debts generally as and when they come due.
(B) Factors to consider.--In determining whether to
make an adjustment under subparagraph (A) and the
amount thereof, the Administrator shall consider--
(i) the financial situation of the
defendant participant and its affiliated group
as shown in historical audited financial
statements, including income statement, balance
sheet, and statement of cash flow, for the 3
fiscal years ending immediately before the
application and projected financial statements
for the 3 fiscal years following the
application;
(ii) an analysis of capital spending and
fixed charge coverage on a historical basis for
the 3 fiscal years immediately preceding a
defendant participant's application and for the
3 fiscal years following the application;
(iii) any payments or transfers of property
made, or obligations incurred, within the
preceding 6 years by the defendant participant
to or for the benefit of any insider as defined
under section 101(31) of title 11, United
States Code, or any affiliate as defined under
section 101(2) of title 11, United States Code;
(iv) any prior extraordinary transactions
within the preceding 6 years involving the
defendant participant, including payments of
extraordinary salaries, bonuses, or dividends;
(v) the defendant participant's ability to
satisfy its payment obligation to the Fund by
borrowing or financing with equity capital, or
through issuance of securities of the defendant
participant or its affiliated group to the
Fund;
(vi) the defendant participant's ability to
delay discretionary capital spending; and
(vii) any other factor that the
Administrator considers relevant.
(C) Term.--A financial hardship adjustment under
this paragraph shall have a term of 5 years unless the
Administrator determines at the time the adjustment is
made that a shorter or longer period is appropriate in
the light of the financial condition of the defendant
participant and its affiliated group and other relevant
factors, provided that a financial hardship adjustment
under this paragraph shall terminate automatically in
the event that the defendant participant holding the
adjustment files a petition under title 11, United
States Code.
(D) Renewal.--A defendant participant may renew a
hardship adjustment upon expiration by demonstrating
that it remains justified. Such renewed hardship
adjustments shall have a term of 5 years unless the
Administrator determines at the time of the renewed
adjustment that a shorter or longer period is
appropriate in light of the financial condition of the
defendant participant and its affiliated group and
other relevant factors. A renewed financial hardship
adjustment under this paragraph shall terminate
automatically in the event that the defendant
participant holding the adjustment files a petition
under title 11, United States Code.
(E) Procedure.--
(i) In general.--The Administrator shall
prescribe the information to be submitted in
applications for adjustments under this
paragraph.
(ii) Financial information.--All audited
financial information required under this
paragraph shall be as reported by the defendant
participant in its 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.). Any defendant
participant that does not file reports with the
Securities and Exchange Commission or which
does not have audited financial statements
shall submit financial statements prepared in
accordance with generally accepted accounting
principles. The chairman, chief executive
officer, and chief financial officer of the
defendant participant shall certify under
penalty of law the completeness and accuracy of
the financial statements provided under this
subparagraph.
(iii) Certification.--The chairman, chief
executive officer, and chief financial officer
of the defendant participant shall certify that
any projected information and analyses
submitted to the Administrator were made in
good faith and are reasonable and attainable.
(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 measured against the
likely cost of past and potential
future claims in the absence of this
Act;
(III) when compared to the median
payment rate for all defendant
participants in the same tier; or
(IV) 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 2-tier main tier
and a 2-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;
(iii) shall be granted a 2-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;
and
(iv) may, subject to the discretion of the
Administrator, be exempt from any payment
obligation if such defendant participant
establishes with the Administrator that--
(I) such participant has satisfied
all past claims; and
(II) there is no reasonable
likelihood in the absence of this Act
of any future claims with costs for
which the defendant participant might
be responsible.
(B) Guidelines.--
(i) In general.--In determining which
defendant participants may receive inequity
adjustments, the Administrator shall give
preference in the following order:
(I) Defendant participants that
have significant insurance coverage
applicable to asbestos claims, such
that on the date of enactment of this
Act, 80 percent or more of their
available primary insurance limits for
asbestos claims remains available.
(II) Defendant participants for
which, under the guidance in section
404(a)(2)(E), 75 percent of the prior
asbestos expenditures of such defendant
participants were caused by or arose
from premise liability claims.
(III) Defendant participants that
can demonstrate that their prior
asbestos expenditures are inflated due
to an unusually large, anomalous
verdict and that such verdict has
caused such defendants to be in a
higher tier.
(IV) Any other factor determined
reasonable by the Administrator to have
caused a serious inequity.
(ii) Consideration.--In determining whether
a defendant participant has significant
insurance coverage applicable to asbestos
claims such that on the date of enactment of
this Act, 80 percent or more of their available
primary insurance limits for asbestos claims
remains available, the Administrator shall
inquire and consider--
(I) the defendant participant's
expected future liability in the tort
system and the adequacy of insurance
available measured against future
liability; and
(II) whether the insurance coverage
is uncontested, or based on a final
judgment or settlement.
(C) 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.
(D) Term.--Subject to the annual availability of
funds in the defendant inequity adjustment account
established under subsection (j), an inequity
adjustment under this subsection shall have a term of 3
years.
(E) Renewal.--A defendant participant may renew an
inequity adjustment every 3 years by demonstrating that
the adjustment remains justified.
(F) 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) Tier ii adjustments for well-insured defendant
participants.--
(A) Definitions.--In this paragraph--
(i) the term ``adjusted cash flow from
operating activities'' means audited cash flows
from operating activities as set forth in the
Financial Accounting Standards Board Statement
of Financial Accounting Standards No. 95 in
effect on the date of enactment of this Act,
adjusted for amounts--
(I) increased by cash paid for
interest and taxes to the extent that
such amounts are included in cash flows
from operating activities;
(II) increased by payments made for
asbestos indemnity, defense costs, and
any payments required under this Act,
to the extent that such amounts are
included in cash flows from operating
activities;
(III) increased by nonrecurring and
unusual cash charges, including
restructuring charges and other non-
operating costs, to the extent that
such amounts are included in cash flows
from operating activities;
(IV) decreased by cash
distributions to minority interests to
the extent that such amounts are
included in cash flows from investing
activities and cash flows from
financing activities;
(V) increased by cash proceeds on
sales of assets net of related secured
debt, affiliates, subsidiaries, and
investments to the extent that such
amounts are included in cash flows from
investing and cash flows from financing
activities;
(VI) increased by cash
distributions from nonconsolidated
affiliates and investments to the
extent that such amounts are included
in cash flows from investing activities
and cash flows from financing
activities;
(VII) increased by net cash flow
used by, and decreased by net cash flow
gained from, working capital items to
the extent such amounts are not already
adjusted under this subparagraph and
are included in cash flows from
operating activities;
(VIII) increased by net cash flow
used by, and decreased by net cash flow
gained from, other nonworking capital
assets and liabilities, to the extent
such amounts are not already adjusted
under this subparagraph and are
included in cash flows from operating
activities;
(IX) decreased by reimbursements or
cash proceeds received from asbestos
insurance policies for related
expenses, to the extent that such
amounts are included in cash flows from
operating activities; and
(X) decreased by other nonoperating
cash income; and
(ii) the term ``working capital'' means
current assets (excluding cash and short-term
investments) less current liabilities
(excluding short-term debt).
(B) Election of alternative adjustment.--Except for
defendant participants that consent to be assigned to
Tier II under section 204(i)(7)(A), a defendant
participant assigned to subtier 3, 4, or 5 of Tier II
may elect the adjustment under this paragraph, which
shall apply instead of an adjustment under paragraph
(3).
(C) Adjustment.--Subject to subparagraphs (D) and
(E), the annual payment obligation, taking into
consideration the limitation under subsection (a)(2),
of any defendant participant that elects the adjustment
under this paragraph shall be adjusted so as not to
exceed the greater of $500,000 or 5 percent of that
defendant participant's adjusted cash flow from
operating activities for the most recent fiscal year
ending on or before December 31, 2002, or for the most
recent fiscal year.
(D) Limitation.--The aggregate total of adjustments
under this paragraph in any year may not exceed
$100,000,000. If the aggregate amount of adjustments
authorized under this paragraph exceeds $100,000,000,
the adjustment to which each defendant participant
electing such an adjustment shall be reduced pro rata
until the aggregate of all adjustments equals
$100,000,000.
(E) Surcharges.--Defendant participants receiving
an adjustment under this paragraph shall also be
subject to the guaranteed payment surcharge under
subsection (m) and the bankruptcy trust surcharge under
section 222(c). Such surcharges shall be based on the
full amount of any adjustment to which the defendant
participant would be entitled under subparagraph (C)
without regard to the limitation under subparagraph
(D).
(5) Limitation on adjustments.--The aggregate total of
inequity adjustments under paragraph (3) in effect in any given
year shall not exceed $200,000,000, except to the extent that
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).
(6) Rulemaking and advisory panels.--
(A) Appointment.--The Administrator may 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.
(D) Rules.--The Administrator may adopt rules
consistent with this Act to make the determination of
hardship and inequity adjustments more efficient and
predictable.
(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.
(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), (g), and (m) of this section) fail
in any year to raise at least $3,000,000,000, 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, after applicable
reductions or adjustments have been taken according to
subsections (d) and (m), the Administrator 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 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);
(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); and
(ii) 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);
(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 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 nondebtor 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 nondebtor 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 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 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 $200,000,000 in any such year shall
be placed in a defendant inequity adjustment account
established within the Fund by the Administrator.
(2) Use of account monies.--Monies from the defendant
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 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(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
required under subsection (h), 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)in any given year, the
Administrator 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) 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), (g), and (m) of this section).
(2) Limitation.--
(A) Definition.--In this paragraph, the term
``economically distressed industry'' means an industry,
defined by a primary 5-digit NAICS code, wherein 2 or
more defendant participants are in Subtier 1 of Tier II
under sections 202 and 203, and at least \2/3\ of such
Tier II defendant participants suffered net operating
losses in their United States manufacturing business in
2005.
(B) In general.--In no case shall the
Administrator--
(i) impose a surcharge under this
subsection on any defendant participant
included in Subtier 3 of Tier V or VI as
described under section 203; or
(ii) notwithstanding paragraph (1), impose
in any year a surcharge under this subsection
on any defendant participant in an economically
distressed industry in excess of 15 percent of
the amount set forth for Subtier 1 of Tier II
defendant participants under section
203(c)(2)(A).
(C) Reallocation.--Any amount not imposed under
subparagraph (B) shall be reallocated on a pro rata
basis, in accordance with each defendant participant's
(other than a defendant participant described under
subparagraph (B) relative annual liability under
sections 202 and 203 (as modified by subsections (b),
(d), (f), and (g) of this section).
(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.
(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.--
(A) Reduction.--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 10th, 15th, 20th, and 25th years after the date
of enactment of this Act. Except as provided under
subparagraph (B), the reductions under this paragraph
shall be applied on an equal pro rata basis to the
funding obligations of all defendant participants.
(B) Calculation.--The reductions under this
subsection shall not apply to defendant participants in
Tier I, Subtiers 2 and 3, and class action trusts. For
defendant participants whose payment obligation has
been limited under section 204(a)(2) or who have
received a financial hardship adjustment under section
204(d)(2), aggregate potential reductions under this
subsection shall be calculated on the basis of the
defendant participant's tier and subtier without regard
to such limitation or adjustment. If the aggregate
potential reduction under this subsection exceeds the
reduction in the defendant participant's payment
obligation due to the limitation under section
204(a)(2) and the financial hardship adjustment under
section 204(d)(2), then the defendant participant's
payment obligation shall be further reduced by the
difference between the potential reduction provided
under this subsection and the reductions that the
defendant participant has already received due to the
application of the limitation provided in section
204(a)(2) and the financial hardship adjustment
provided under section 204(d)(2). If the reduction in
the defendant participant's payment obligation due to
the limitation provided in section 204(a)(2) and any
financial hardship adjustment provided under section
204(d)(2) exceeds the amount of the reduction provided
in this subsection, then the defendant participant's
payment obligation shall not be further reduced under
this paragraph.
(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.--
(A) In general.--Except as provided under
subparagraph (B), any reduction or waiver of the
defendant 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 defendant
participants, except with respect to defendant
participants in Subtiers 2 and 3 of Tier I and
class action trusts, for that year.
(B) Calculation.--The reductions or waivers
provided under this subsection shall not apply to
defendant participants in Tier I, Subtiers 2 and 3, and
class action trusts. For defendant participants whose
payment obligation has been limited under section
204(a)(2) or who have received a financial hardship
adjustment under section 204(d)(2), aggregate potential
reductions under this subsection shall be calculated on
the basis of the defendant participant's tier and
subtier without regard to such limitation or
adjustment. If the aggregate potential reductions or
waivers under this subsection exceed the reduction in
the defendant participant's payment obligation due to
the limitation under section 204(a)(2) and the
financial hardship adjustment under section 204(d)(2),
then the defendant participant's payment obligation
shall be further reduced by the difference between the
potential reductions or waivers provided under this
subsection and the reductions that the defendant
participant has already received due to the application
of the limitation provided in section 204(a)(2) and the
financial hardship adjustment provided under section
204(d)(2). If the reduction in the defendant
participant's payment obligation due to the limitation
provided in section 204(a)(2) and any of the financial
hardship adjustment provided under section 204(d)(2)
exceeds the amount of the reductions or waivers
provided in this subsection, then the defendant
participant's payment obligation shall not be further
reduced under this paragraph.
(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.--
(i) Amount of 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 the
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 shall be uniform
for all insurer participants.
(ii) Reserve study required.--The
Commission shall conduct a reserve study (the
``Reserve Study'') to determine the appropriate
reserve allocation of each insurer participant
and may request information from each insurer
participant, defendant participant, the
Securities and Exchange Commission or any State
regulatory agency for the purpose of conducting
the Reserve Study. The Reserve Study shall
calculate each insurer's exposure to current
and future asbestos claims in the asbestos
litigation environment before the date of
enactment of this Act. Such calculation shall
be derived from the following elements:
(I) An estimation of each defendant
participant's current and future
exposure to expense and loss costs in
the asbestos litigation environment
before the date of enactment of this
Act (``Ultimate Expense and Loss'').
(II) The application of a uniform
set of assumptions regarding the
application of insurance and
reinsurance to Ultimate Expense and
Loss and an analysis of each insurer
participant's unresolved or unexhausted
insurance or reinsurance coverage
applicable to such Ultimate Expense and
Loss for each defendant participant;
(III) A projection of each
insurer's exposure to claims by
entities that had not yet become
defendants as of the date of enactment
of this Act, but might reasonably have
been anticipated to become defendants
in the future if the asbestos
litigation environment before the date
of enactment of this Act had continued.
Not later than 60 days after the
initial meeting of the Commission, the
Commission shall commence a rulemaking
proceeding under section 213(a) to
propose and adopt a methodology for
conducting the Reserve Study and
allocating payments among insurer
participants on the basis of the
Reserve Study. Such methodology shall
be consistent with this subparagraph.
(iii) Permitted extrapolation of ultimate
expense and loss for peripheral defendant
participants.--The Commission may establish an
appropriate methodology to extrapolate Ultimate
Expense and Loss for Tier VI defendant
participants for the purposes of the Reserve
Study. Considerations for such methodology
shall include the nature of that Tier VI
defendant participant's asbestos liability, the
number of pending and historic asbestos claims
against the Tier VI defendant participant, and
the jurisdictions in which such Tier VI
defendant participant had been sued for
asbestos liability.
(iv) Rule of construction.--Nothing in this
subparagraph shall affect the initial payment
requirement in section 212(e)(1).
(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 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, insures the asbestos liability, directly or
indirectly, of (and that arises out of the manufacture,
sale, distribution or installation of materials or
products by, or other conduct 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 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.--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 except as provided under
paragraph (1)(B), subsection (f)(3), and
section 405(f), 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.
(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) 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(f).
(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).
(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;
(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(g)(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 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 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) Bankruptcy Trust Guarantee.--
(1) In general.--Notwithstanding any other provision of
this Act, the Administrator shall have the authority to impose
a pro rata surcharge on all participants under this subsection
to ensure the liquidity of the Fund, if--
(A) the declared assets from 1 or more bankruptcy
trusts established under a plan of reorganization
confirmed and substantially consummated on or before
July 31, 2004, are not available to the Fund because a
final judgment that has been entered by a court and is
no longer subject to any appeal or review has enjoined
the transfer of assets required under section 524(j)(2)
of title 11, United States Code (as amended by section
402(f) of this Act); and
(B) borrowing is insufficient to assure the Fund's
ability to meet its obligations under this Act such
that the required borrowed amount is likely to increase
the risk of termination of this Act under section 405
based on reasonable claims projections.
(2) Allocation.--Any surcharge imposed under this
subsection shall be imposed over a period of 5 years on a pro
rata basis upon all participants, in accordance with 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.
(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,
including a refusal or failure to provide the information
required under section 204 needed to determine liability, the
Administrator may bring a civil action in 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;
(C) for temporary, preliminary, or permanent
relief; or
(D) to enforce a subpoena issued under section
204(i)(9) to compel the production of documents
necessary to determine liability.
(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 pay any contribution required by this Act, then,
in addition to any other penalties imposed by this Act, the
Administrator 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 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 2006.''.
(j) Transactions.--
(1) Notice of transaction.--Any participant that has
engaged in any transaction or series of transactions under
which a significant portion of such participant's assets,
properties, or business was, directly or indirectly,
transferred by any means (including 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 transaction (or series of transactions).
(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 after the date of consummation of
the 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 under 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 were
transferred in the transaction (or series of
transactions) should be considered to be the
successor in interest of the participant for
purposes of this Act; or
(ii) the transaction (or series of
transactions) is 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 the participant believes any person 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
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 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) Right of action.--
(A) In general.--Notwithstanding section 221(f), if
the Administrator or any participant believes that a
participant 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 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 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) a temporary
restraining order or a preliminary or permanent
injunction 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 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 became 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 exclusively 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.
(6) 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.
(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
nonoccupational exposures;
(vi) the intensity and duration of exposure
to risk levels of naturally occurring asbestos
as defined by the Environmental Protection
Agency; and
(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 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 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(g).
(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) 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), 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 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.--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) 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. 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 2006 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 2006.
``(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 2006, 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 2006),
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 2006) 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 2006.''.
(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 2006) 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 2006); 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
2006; 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 2006, 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 2006 shall--
``(A) constitute costs and expenses of
administration of a case under section 503 of this
title;
``(B) notwithstanding any case pending under this
title, be payable in accordance with section 202 of
that Act;
``(C) not be stayed;
``(D) not be affected as to enforcement or
collection by any stay or injunction of any court; and
``(E) not be impaired or discharged in any current
or future case under this title.''.
(f) Treatment of Trusts.--Section 524 of title 11, United States
Code, as amended by this Act, is amended by adding at the end the
following:
``(j) Asbestos Trusts.--
``(1) In general.--A trust shall assign a portion of the
corpus of the trust to the Asbestos Injury Claims Resolution
Fund (referred to in this subsection as the `Fund') as
established under the Fairness in Asbestos Injury Resolution
Act of 2006 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 clause (ii)
of this subparagraph and 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
2006) shall be transferred to the Fund not
later than 90 days after the date of enactment
of the Fairness in Asbestos Injury Resolution
Act of 2006 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 clause (i), and
except as provided under subparagraphs (B),
(C), and (E), any trust established to provide
compensation for asbestos claims (as defined in
section 3 of the Fairness in Asbestos Injury
Resolution Act of 2006), other than a trust
established under a reorganization plan subject
to section 202(c) of that Act, shall transfer
the assets in such trust to the Fund as
follows:
``(I) In the case of a trust
established on or before December 31,
2005, such trust shall transfer 90
percent of the assets in such trust to
the Fund not later than 90 days after
the date of enactment of the Fairness
in Asbestos Injury Resolution Act of
2006.
``(II) In the case of a trust
established after December 31, 2005,
such trust shall transfer 88 percent of
the assets in such trust to the Fund
not later than 90 days after the date
of enactment of the Fairness in
Asbestos Injury Resolution Act of 2006.
``(iii) Not later than 90 days after the
date on which the Administrator of the Office
of Asbestos Disease Compensation (referred to
in this section as the `Administrator')
certifies in accordance with section
106(f)(3)(E)(ii) of the Fairness in Asbestos
Injury Resolution Act of 2006 that the Fund is
fully operational and paying all valid asbestos
claims at a reasonable rate, any trust
transferring assets under clause (ii) shall
transfer all remaining assets in such trust to
the Fund. The transfer required by this clause
shall not include any trust assets needed to
pay--
``(I) previously incurred expenses;
or
``(II) claims determined to be
eligible for compensation under clause
(vi).
``(iv) Except as provided under
subparagraph (B), the Administrator of the Fund
shall accept any assets transferred under
clauses (ii) or (iii) and utilize them for any
purposes for the Fund under section 221 of the
Fairness in Asbestos Injury Resolution Act of
2006, including the payment of claims for
awards under such Act to beneficiaries of the
trust from which the assets were transferred.
``(v) 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).
``(vi) Any trust transferring assets under
clause (ii) shall be subject to the following
requirements:
``(I) The trust may continue to
process asbestos claims, make
eligibility determinations, and pay
claims in a manner consistent with this
clause if a claimant--
``(aa) provides to the
trust a copy of a binding
election submitted to
Administrator waiving the right
to secure compensation under
section 106(f)(2) of the
Fairness in Asbestos Injury
Resolution Act of 2006, unless
the claimant is permitted under
section 106(f)(2)(B) of such
Act to seek a judgment or order
for monetary damages from a
Federal or State court;
``(bb) meets the
requirements for compensation
under the distribution plan for
the trust as of the date of
enactment of the Fairness in
Asbestos Injury Resolution Act
of 2006;
``(cc) for any condition
satisfies the medical criteria
under the distribution plan for
the trust that is most nearly
equivalent to the medical
criteria described in paragraph
(2), (3), (4), (5), (7), (8),
or (9) of section 121(d) of the
Fairness in Asbestos Injury
Resolution Act of 2006, except
that, notwithstanding any
provision of the distribution
plan of the trust to the
contrary, the trust shall not
accept the results of a DLCO
test (as such test is defined
in section 121(a) of the
Fairness in Asbestos Injury
Resolution Act of 2006) for the
purpose of demonstrating
respiratory impairment; and
``(dd) for any of the
cancers listed in section
121(d)(6) of the Fairness in
Asbestos Injury Resolution Act
of 2006 does not seek, and the
trust does not pay, any
compensation until such time as
the Institute of Medicine finds
that there is a causal
relationship between asbestos
exposure and such cancer, in
which case such claims may be
paid if such claims otherwise
qualify for compensation under
the distribution plan of the
trust as of the date of
enactment of the Fairness in
Asbestos Injury Resolution Act
of 2006.
``(II) The trust shall not accept
medical evidence from any physician,
medical facility, or laboratory whose
evidence would be not be accepted as
evidence--
``(aa) under the Manville
Trust as of the date of
enactment of the Fairness in
Asbestos Injury Resolution Act
of 2006; or
``(bb) by the Administrator
under section 115(a)(2) of such
Act.
``(III) The trust shall not amend
its scheduled payment amount or payment
percentage as in effect on the date of
enactment of the Fairness in Asbestos
Injury Resolution Act of 2006.
``(IV) The trust shall not amend
its eligibility criteria after the date
of enactment of the Fairness in
Asbestos Injury Resolution Act of 2006,
except to conform any criteria in any
category under the distribution plan of
the trust with related criteria in a
related category under section 121 of
the Fairness in Asbestos Injury
Resolution Act of 2006.
``(V) The trust shall notify the
Administrator of the Fund of any claim
determined to be eligible for
compensation after the date of
enactment of the Fairness in Asbestos
Injury Resolution Act of 2006, and the
amount of any such compensation awarded
to the claimant of such claim. The
notification required by this subclause
shall be made in such form as the
Administrator shall require, and not
later than 15 days after the date the
determination is made.
``(VI) The trust shall not pay any
claim without a certification by a
claimant, subject to the penalties
described in the Fairness in Asbestos
Injury Resolution Act of 2006, stating
the amount of collateral source
compensation that such claimant has
received, or is entitled to receive,
under section 134 of the Fairness in
Asbestos Injury Resolution Act of 2006.
In the event that collateral source
compensation exceeds the amount that
the claimant would be paid (excluding
any adjustments under section 131(b)
(3) and (4) of the Act) for such
condition under the Act most similar to
the claimant's claim with the trust,
such trust shall not make any payment
to the claimant.
``(VII) Upon finding that the trust
has breached any condition or
conditions of this clause, the
Administrator shall require the
immediate payment of remaining trust
assets into the Fund in accordance with
section 402(f) of the Fairness in
Asbestos Injury Resolution Act of 2006.
The Administrator shall be entitled to
an injunction against further payments
of nonliquidated claims from the assets
of the trust during the pendency of any
dispute regarding the findings of
noncompliance by the Administrator. The
court in which any action to enforce
the obligations of the trust is pending
shall afford the action expedited
consideration.
``(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 2006 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 2006, 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 2006,
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, except that any
provision of such an injunction channeling asbestos
claims to such a trust for resolution shall have no
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 2006, 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 2006.''.
(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 2006), 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 2006), 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 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, including a claim described under
subsection (e)(2), 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 by--
(I) the authorized legal
representative acting on behalf of the
settling defendant or insurer, 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,
the plaintiff has fulfilled all conditions to
payment under the settlement agreement.
(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) of this Act and section 524(j)(3) of title 11,
United States Code, as amended by this Act, 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 impaneling 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) of this Act and section 524(j)(3) of title 11, United
States Code, as amended by this Act.
(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.--
(A) In general.--Except as provided under
subsection (d)(2), no judgment other than a judgment
for dismissal may be entered in any action asserting an
asbestos claim (including any claim described in
paragraph (2)) in any Federal or State court on or
after the date of enactment of this Act.
(B) Dismissal on motion.--A court may dismiss any
action asserting an asbestos claim (including any claim
described in paragraph (2)) on--
(i) motion by any party to such action; or
(ii) its own motion.
(C) Denial of motion.--If a court denies a motion
to dismiss under subparagraph (B)(i), it shall stay
further proceedings in any such action until final
disposition of any appeal taken under this Act.
(D) Exception for pending claims in court.--
(i) In general.--Except as provided under
subsection (d)(2) and clause (ii) of this
subparagraph, an action asserting an asbestos
claim that is pending on the date of enactment
of this Act in any Federal or State court may
not be dismissed under subparagraph (A), but
any stay shall continue in effect, if the
plaintiff (or the personal representative of
the plaintiff, if the plaintiff is deceased or
incompetent) in such action has filed a claim,
or is still entitled under section 113(b) to
file a claim, with the Fund with respect to the
disease, condition, or injury forming the basis
of such action.
(ii) Dismissal allowed if claim is
adjudicated.--An action exempt from dismissal
under clause (i) shall be dismissed if--
(I) the plaintiff's claim under the
Fund has been finally adjudicated,
and--
(aa) the award, if any, to
the plaintiff from the Fund has
been paid in whole or in part;
or
(bb) the plaintiff has been
determined to be eligible for
medical monitoring;
(II) the plaintiff's claim under
the Fund has been finally adjudicated
and the claimant is not entitled to
receive a monetary award or medical
monitoring under subtitle D of title I;
(III) the plaintiff's claim has
been resolved and paid in full under
section 106(f);
(IV) after the Administrator
certifies to Congress that the Fund has
become operational and paying all valid
asbestos claims at a reasonable rate,
the plaintiff's claim is pending in any
venue other than a venue described
under section 405(h)(3); or
(V) before the Administrator
certifies to Congress that the Fund has
become operational and paying all valid
asbestos claims at a reasonable rate,
the plaintiff's claim--
(aa) is subject to section
106(f)(3); and
(bb) would not be permitted
to proceed in the venue in
which that claim is pending
under such paragraph.
(E) Notice.--A claimant shall provide notice to the
Administrator of any pending action involving an
asbestos claim in any Federal or State court in which
such claimant is a plaintiff. The Administrator shall
send notice to the appropriate Federal or State court
of any adjudication of any claim with the Fund filed by
a plaintiff in an action that has been stayed under
subparagraph (D)(i).
(F) Rule of construction.--Nothing in this
paragraph shall be construed to limit dismissal, at any
time, of a claim pending in Federal or State court for
reasons independent of the enactment of 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 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, including a claim described under paragraph (2),
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(g) 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(g), 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 Applicable
Funding Obligation Ends: 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(g), 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 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 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 preponderance 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 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 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.--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 written agreement specifically providing
insurance, 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(h), except to the extent that--
(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 disease level, 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 and over
the predicted lifetime of the program as and when
required, an evaluation of the Fund's ability to retire
its existing debt and assume additional debt, and an
evaluation of the Fund's ability to satisfy other
obligations under the program; and
(C) a report on any changes in projections made in
earlier annual reports or sunset analyses regarding the
Fund's ability to meet its financial obligations;
(5) a summary of any legal actions brought or penalties
imposed under section 223, any referrals made to law
enforcement authorities under section 408 (a) and (b), and any
contributions to the Fund collected under section 408(e);
(6) 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 those claimants who suffer from
diseases or conditions for which exposure to asbestos was a
substantial contributing factor;
(7) a summary of the results of audits conducted under
section 115; and
(8) a summary of prosecutions under section 1348 of title
18, United States Code (as added by this Act).
(c) Certification.--The Administrator shall certify in the annual
report required under subsection (a) whether, in the best judgment of
the Administrator, the Fund will have sufficient resources for the
fiscal year in which the report is issued to make all required
payments--
(1) with respect to all claims determined eligible for
compensation that have been filed and that the Administrator
projects will be filed with the Office for the fiscal year; and
(2) to satisfy the Fund's debt repayment obligation,
administrative costs, and other financial obligations.
(d) 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 (f), 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.
(e) Recommendations of Administrator and Advisory Committee.--
(1) Referral.--If the Administrator recommends changes to
this Act under subsection (d), 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.
(f) Shortfall Analysis.--
(1) In general.--
(A) Analysis.--If the Administrator concludes, at
any time, that the Fund may not be able to pay claims
as such claims become due at any time within the next 5
years and to satisfy its other obligations, the
Administrator shall prepare 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. The Administrator shall submit such analysis to
the Committee on the Judiciary of the Senate and the
Committee on the Judiciary of the House of
Representatives. Any recommendations made by the
Administrator for changes to the program shall, in
addition, be referred to the Advisory Committee on
Asbestos Disease Compensation established under section
102 for review.
(B) Range of alternatives.--The range of
alternatives under subparagraph (A) may include--
(i) termination of the program set forth in
titles I and II of this Act in its entirety;
(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, enhancement of
enforcement authority, changes in the timing of
payments, changes in contributions by defendant
participants, insurer participants (or both
such participants), or changes in award
values); or
(iii) any measure that the Administrator
considers appropriate.
(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 (g), 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.
(g) 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--
(i) the Administrator has begun the
processing of claims; and
(ii) as part of the review conducted to
prepare an annual report under this section,
the Chief Financial Officer of the Department
of Labor, giving due consideration to the audit
conducted under subsection (h), determines that
if any additional claims are resolved, the Fund
will not have sufficient nontaxpayer resources
and borrowing authorized under section 221 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)(II), the remaining obligations to
the asbestos trust of the debtor and the class action
trust shall be determined by multiplying the amount of
assets transferred to the Fund by such debtor or class
action trust by the applicable percentage set forth in
the following schedule depending on the year in which a
termination shall take effect under paragraph (2). The
applicable percentage shall be adjusted between years
by quarter-annual increments.
Year After Enactment in Which Applicable
the Termination is Effective Percentage:
1............................................. 100.00
2............................................. 93.95
3............................................. 87.98
4............................................. 82.40
5............................................. 76.97
6............................................. 71.66
7............................................. 66.50
8............................................. 61.48
9............................................. 56.61
10............................................ 52.01
11............................................ 47.65
12............................................ 43.52
13............................................ 39.62
14............................................ 35.96
15............................................ 32.55
16............................................ 29.36
17............................................ 26.39
18............................................ 23.65
19............................................ 21.11
20............................................ 18.76
21............................................ 16.62
22............................................ 14.66
23............................................ 12.86
24............................................ 11.24
25............................................ 9.78
26............................................ 8.48
27............................................ 7.32
28............................................ 6.29
29............................................ 5.37
30............................................ 4.55
31............................................ 3.83
32............................................ 3.20
33............................................ 2.66
34............................................ 2.18
35............................................ 1.77
36............................................ 1.42
37............................................ 1.13
38............................................ 0.89
39............................................ 0.70
40............................................ 0.54
41............................................ 0.40
42............................................ 0.29
43............................................ 0.19
44............................................ 0.12
45............................................ 0.05
46 and thereafter............................. 0.00
(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 (h) 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 (h), 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 (h).
(7) Establishment of master asbestos trust.--
(A) Creation.--Within 120 days after the
determination of the Administrator under paragraph (1),
the Administrator shall create a trust to be the
successor to the asbestos trusts and any class action
trust, to receive funds equal to the amount determined
by the Administrator to be necessary to pay the
remaining aggregate obligations to the asbestos trusts
and any class action trust under paragraph (1) (A)(iii)
and (B), and to use such funds for the exclusive
purpose of providing benefits in accordance with the
terms of this paragraph to persons who would have held
valid asbestos claims against the asbestos trusts or
any class action trust had this Act not been enacted
and to otherwise defray the reasonable expenses of
administering the master trust.
(B) Jurisdiction.--The United States District Court
for the District of Columbia shall have exclusive
jurisdiction, without regard to amount in controversy,
over the master trust and all civil actions involving
the application and construction of this subparagraph
and the trust documents, including any action for the
payment of benefits due under the terms of this
subparagraph after exhaustion of trust remedies and any
action for breach of fiduciary duty on the part of any
fiduciary of the master trust.
(C) Trustees.--The district court shall appoint,
upon petition by the Administrator after consultation
with the Advisory Committee, 3 trustees to administer
the master trust. Each trustee, and any successor to
each trustee, must be independent, free of any adverse
interest and have sufficient qualifications and
experience to fulfill the responsibilities described in
this section.
(D) Trust advisory committee.--The Administrator,
in consultation with the Advisory Committee, shall
appoint 3 persons to represent the interests of trust
beneficiaries as members of a trust advisory committee
to consult with and advise the trustees respecting the
administration of the master trust and resolution of
asbestos claims. At least 1 of the members of the trust
advisory committee shall be selected from among
individuals recommended by recognized national labor
federations, and at least 1 of the members of the trust
advisory committee shall be experienced in representing
the interests of trust beneficiaries.
(E) Legal representative.--The district court shall
appoint, upon petition by the Administrator after
consultation with the Advisory Committee, a legal
representative of persons who may in the future have
claims against the master trust for the purpose of
protecting the rights of such persons respecting the
master trust and consulting with and advising the
trustees respecting the administration of the master
trust and resolution of asbestos claims. The legal
representative shall have standing to appear and be
heard as a representative of the future asbestos
claimants in any civil action before the district court
relating to the master trust. The legal representative
shall not represent the interests of any person who has
filed a claim for benefits against the master trust
with respect to such claim.
(F) Trust documents.--The Administrator, in
consultation with the Advisory Committee, shall create
such trust documents as may be necessary to create and
govern the operations of the master trust. The trust
documents shall contain provisions that--
(i) address the payment of compensation to
and reimbursement of necessary and reasonable
expenses of the trustees, trust advisory
committee members and legal representative, and
appointment of successors to such persons,
subject to approval by the district court in
the case of successors to the trustees and
legal representative; and
(ii) provide for the master trust's
obligation to defend and indemnify the
Administrator, trustees, members of the trust
advisory committee, legal representative and
their respective successors against and from
legal actions and related losses to the extent
that a corporation is permitted under the laws
of Delaware to defend and indemnify its
officers and directors.
(G) Duty of trustees.--The trustees shall
administer the master trust in accordance with the
terms of this subparagraph and the Trust Documents for
the exclusive purpose of providing benefits to persons
with valid claims against the master trust and
otherwise defraying the reasonable expenses of
administering the master trust, and shall manage and
invest the assets of the trust with the care, skill,
prudence, and diligence, under like circumstances
prevailing at the time, that a prudent person acting in
like capacity and manner would use.
(H) Claims resolution procedures.--The trustees, in
consultation with the trust advisory committee and the
legal representative, shall adopt claims resolution
procedures that provide for fair and expeditious
payment of benefits to all persons described in
subparagraph (A). The claims resolution procedures
adopted and implemented by the trustees shall contain--
(i) pro rata distributions of award amounts
that are subject to adjustment, if necessary,
based on periodic evaluations of the value of
the master trust's assets and estimates of the
numbers and values of present and future
asbestos claims for benefits that may be
awarded by the master trust and other
mechanisms that provide reasonable assurance
that the master trust will value, and be in a
financial position to pay, similarly situated
asbestos claims presented to it that involve
similar diseases in substantially the same
manner;
(ii) proof requirements, claim submission
procedures, and claim evaluation and allowance
procedures that provide for expeditious filing
and evaluation of all asbestos claims submitted
to the master trust;
(iii) provisions for priority review and
payment of claimants whose circumstances
require expedited evaluation and compensation;
(iv) exposure requirements for asbestos
claimants to qualify for a remedy that fairly
reflect the legal responsibility of at least 1
entity whose liabilities were channeled to an
asbestos trust or any class action trust; and
(v) review and dispute resolution
procedures for disputes regarding the master
trust's disallowance or other treatment of
claims for benefits.
(I) Medical criteria.--The trustees, in
consultation with the trust advisory committee and the
legal representative, shall adopt and maintain uniform
medical criteria that fairly reflect a current state of
applicable law and scientific and medical knowledge.
The trustees may adopt the medical criteria of section
121.
(J) Award amounts.--The trustees, in consultation
with the trust advisory committee and the legal
representative, shall adopt a matrix of award amounts
for disease categories that applies to all claimants
who qualify for payment under the medical criteria and
claims resolution procedures. The trustees may adopt
the matrix of award amounts of section 131 or such
other matrix that the trustees determine provides
similar benefits for similar claims and fairly reflects
the liability of the entities whose liabilities were
channeled to the asbestos trusts and any class action
trust.
(K) Payments to claimants.--The trustees shall pay
each qualifying claimant a benefit equal to the product
of the master trust payment percentage and the award
amount to such claimant. The master trust payment
percentage at any given time shall be determined by the
trustees based on their periodic evaluation of the
master trust's assets and projected claims as described
in subparagraph (H)(i).
(L) Amendments.--The trustees, in consultation with
the trust advisory committee and legal representative,
may amend the trust documents, the claims resolution
procedures, the medical criteria and the award matrix
to the extent necessary to more effectively and
efficiently carry out the purpose of the master trust.
If the substantive consolidation of the asbestos trusts
and any class action trust effected by this subsection
is held to be unconstitutional, the trustees shall
adopt amendments to the trust documents, claims
resolution procedures, medical criteria and award
matrix as may be necessary to bring the master trust in
compliance with the Constitution, including if
necessary, amendments requiring, for each such trust,
separate claims resolution procedures, award amounts
and accounting of assets and liabilities.
(8) Payment to master trust.--The amount determined by the
Administrator to be necessary to pay the remaining aggregate
obligations to the asbestos trusts and any class action trust
under paragraph (1) (A)(iii) and (B) shall be transferred to
the master trust within 90 days of termination under this
subsection. Any individual with a valid asbestos claim against
any asbestos trust or class action trust shall be entitled to
seek relief on account of such claim from the master trust
described in paragraph (7) in accordance with that paragraph.
(h) Nature of Claim After Sunset.--
(1) In general.--
(A) Relief.--
(i) In general.--On and after the date of
termination under subsection (g), 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 (g),
except that any individual who would have held
a valid asbestos claim against any asbestos
trust or class action trust had this Act not
been enacted may obtain relief on account of
such claim only from the master trust described
in subsection (g)(7) in accordance with the
provisions of such subsection.
(ii) Rule of construction.--This
subparagraph shall not be construed as creating
a new Federal cause of action.
(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 (g), 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 1 county (or Federal district), the trial
court shall determine which State and county (or
Federal district) is the most appropriate forum for the
claim. If the court determines that another forum would
be the most appropriate forum for a claim, the court
shall dismiss the claim. Any otherwise applicable
statute of limitations shall be tolled beginning on the
date the claim was filed and ending on the date the
claim is dismissed under this subparagraph.
(D) State venue requirements.--Nothing in this
paragraph shall preempt or supersede any State's law
relating to venue requirements within that State which
are more restrictive.
(4) Class action trusts.--Notwithstanding any other
provision of this section, 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.
(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.
(i) Audit.--Any annual report to Congress required under this
section shall be reviewed and certified as fairly representing the
financial condition of the Fund by an independent auditor.
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, 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.
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
2006.''.
(2) Public service health act.--Section 2702(a)(1) of the
Public Health Service Act (42 U.S.C. 300gg-1(a)(1)) is amended
by adding at the end the following:
``(I) Participation in a medical monitoring program
under the Fairness in Asbestos Injury Resolution Act of
2006.''.
(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
2006.''.
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) 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.--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.--
``(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:
``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.
Calendar No. 460
109th CONGRESS
2d Session
S. 3274
_______________________________________________________________________
A BILL
To create a fair and efficient system to resolve claims of victims for
bodily injury caused by asbestos exposure, and for other purposes.
_______________________________________________________________________
June 5, 2006
Read the second time and placed on the calendar
Introduced in Senate
Sponsor introductory remarks on measure. (CR S5344-5347)
Introduced in the Senate. Read the first time. Placed on Senate Legislative Calendar under Read the First Time. (text of measure as introduced: CR S5344-5388)
Read the second time. Placed on Senate Legislative Calendar under General Orders. Calendar No. 460.
Committee on the Judiciary. Hearings held. Hearings printed: S.Hrg. 109-594.
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