S.Amdt. 2888

SA 2888. Mr. ISAKSON submitted an amendment intended to be proposed by him to the bill S. 852, to create a fair and efficient system to resolve claims of victims for bodily injury caused by asbestos exposure, and for other purposes; which was ordered to lie on the table; as follows:

In lieu of the matter, insert the following:

SEC. 503. TRANSACTIONS.

(a) Notice of Transactions.--Notwithstanding any other provision of this Act, any participant that has engaged in any transaction or a 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).

(b) Timing of Notice and Related Actions.--

(1) In general.--Any notice that a participant is required to give under subsection (a) 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.

(2) Other notifications.--

(A) In general.--Not later than the date in any year on which a participant is required to make its contribution to the Fund, the participant shall deliver to the Administrator a written certification stating that--

(i) the participant has complied during the period since the last such certification or the date of enactment of this Act with the notice requirements set forth in this section; or

(ii) the participant was not required to provide any notice under this section during such period.

(B) 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.

(3) Notice completion.--The Administrator shall not consider any notice given under subsection (a) as given until such time as the Administrator receives substantially all the information required by this section.

(c) Contents of Notice.--

(1) In general.--The Administrator shall determine by regulation the information to be included in the notice required under this section, which shall include such information as may be necessary to enable the Administrator to determine whether--

(A) 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

(B) 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.

(2) Statements.--The notice shall also include--

(A) 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

(B) a statement by the participant as to whether that person has acknowledged that such person has become a successor in interest for purposes of this Act.

(d) Definition.--In this section, 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--

(1) generated at least 40 percent of the revenues of such participant (or its affiliated group);

(2) constituted at least 40 percent of the assets of such participant (or its affiliated group);

(3) generated at least 40 percent of the operating cash flows of such participant (or its affiliated group); or

(4) 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.

(e) Right of Action.--

(1) 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) that--

(A) involves 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

(B) 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.

(2) Relief allowed.--In any action commenced under this section, the Administrator or a participant, as applicable, may seek--

(A) with respect to a transaction (or series of transactions) referred to under subparagraph (A) of paragraph (1), a declaratory judgment regarding whether such person has become the successor in interest of such participant; or

(B) with respect to a transaction (or series of transactions) referred to under subparagraph (B) of paragraph (1)--

(i) a temporary restraining order or a preliminary or permanent injunction; or

(ii) such other relief regarding such transaction (or series of transactions) as the court determines to be necessary to ensure that performance of a participant's payment obligations under this Act is not materially impaired by reason of such transaction (or series of transactions).

(3) 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 subsection 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 subsection shall not preempt any other rights of any person under applicable Federal or State law.

(4) Venue.--Any action under this subsection 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.

(f) Regulations.--The Administrator--

(1) shall promulgate rules to carry out subsection (c), including regulations relating to the form, timing and content of notices; and

(2) may promulgate regulations to effectuate the intent of this section.

(g) Preemption of Section 223(j).--Section 223(j) shall have no force or effect.