[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1125 Reported in Senate (RS)]
Calendar No. 239
108th CONGRESS
1st Session
S. 1125
[Report No. 108-118]
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
July 22, 2003
Mr. Hatch (for himself, Mr. Nelson of Nebraska, Mr. DeWine, Mr. Miller,
Mr. Voinovich, Mr. Allen, Mr. Chambliss, and Mr. Hagel) introduced the
following bill; which was read twice and referred to the Committee on
the Judiciary
July 30 (legislative day, July 21), 2003
Reported by Mr. Hatch, with amendments
[Omit the part struck through and insert the part printed in italic]
_______________________________________________________________________
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 2003'' or the ``FAIR Act of 2003''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. <DELETED>Purpose.</DELETED> Findings and purpose.
Sec. 3. Definitions.
TITLE I--ASBESTOS CLAIMS RESOLUTION
Subtitle A--United States Court of <DELETED>Asbestos</DELETED> Federal
Claims
Sec. 101. <DELETED>Establishment of Asbestos Court.</DELETED> United
States Court of Federal Claims.
Subtitle B--Asbestos Injury Claims Resolution Procedures
Sec. 111. Filing of claims.
Sec. 112. General rule concerning no-fault compensation.
Sec. 113. Essential elements of eligible asbestos claim.
Sec. 114. Eligibility determinations and claim awards.
Sec. 115. Medical evidence auditing procedures.
Sec. 116. Claimant assistance program.
Subtitle C--Medical Criteria
Sec. 121. <DELETED>Essential elements of eligible asbestos claim.</DELETED>
Medical criteria requirements.
<DELETED>Sec. 122. Diagnostic criteria requirements.
<DELETED>Sec. 123. Latency criteria requirements.
<DELETED>Sec. 124. Medical criteria requirements.
<DELETED>Sec. 125. Exposure criteria requirements.
</DELETED>Subtitle D--Awards
Sec. 131. Amount.
Sec. 132. Medical monitoring.
Sec. 133. Payments.
Sec. 134. Reduction in benefit payments for collateral sources.
Subtitle E--En Banc Review
Sec. 141. En banc review.
TITLE II--ASBESTOS INJURY CLAIMS RESOLUTION FUND
Subtitle A--Asbestos Defendants Funding Allocation
Sec. 201. Definitions.
Sec. 202. Authority and tiers.
Sec. 203. Subtier assessments.
Sec. 204. Assessment administration.
Subtitle B--Asbestos Insurers Commission
Sec. 210. Definitions.
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.
<DELETED>Sec. 215. Nonapplication of FOIA and confidentiality of
information.
</DELETED>Sec. 215. Application of FOIA.
Sec. 216. Termination of Asbestos Insurers Commission.
<DELETED>Sec. 217. Authorization of appropriations.
</DELETED>Sec. 217. Expenses and costs of the Commission.
Subtitle C--Office of Asbestos Injury Claims Resolution
Sec. 221. Establishment of the Office of Asbestos Injury Claims
Resolution.
Sec. 222. Powers of the Administrator and management of the Fund.
Sec. 223. Asbestos Injury Claims Resolution Fund.
Sec. 224. Enforcement of contributions.
<DELETED>Sec. 225. Additional contributing participants.
</DELETED>TITLE III--JUDICIAL REVIEW
Sec. 301. Judicial review of decisions of the <DELETED>Asbestos Court.</DELETED>
United States Court of Asbestos Claims.
Sec. 302. Judicial review of final determinations of the Administrator
and of the Asbestos Insurers Commission.
Sec. 303. Exclusive review.
Sec. 304. Private right of action against reinsurers.
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. Annual report of the Administrator.
Sec. 405. Rules of construction relating to liability of the United
States Government.
Sec. 406. Effect on insurance and reinsurance contracts.
TITLE V--PROHIBITION OF ASBESTOS CONTAINING PRODUCTS
Sec. 501. Prohibition on asbestos containing products.
<DELETED>SEC. 2. PURPOSE.</DELETED>
<DELETED> The purpose of this Act is to create a privately funded,
publicly administered fund to provide the necessary resources for an
asbestos, injury claims resolution program.</DELETED>
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) A great number 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 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.
(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 condition 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 Injury Claims
Resolution appointed under section 221(c).
<DELETED> (2) Asbestos.--The term ``asbestos'' includes--
</DELETED>
<DELETED> (A) asbestos chrysotile;</DELETED>
<DELETED> (B) asbestos amosite;</DELETED>
<DELETED> (C) asbestos crocidolite;</DELETED>
<DELETED> (D) asbestos tremolite;</DELETED>
<DELETED> (E) asbestos winchite;</DELETED>
<DELETED> (F) asbestos richterite;</DELETED>
<DELETED> (G) asbestos anthophyllite;</DELETED>
<DELETED> (H) asbestos actinolite;</DELETED>
(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) any of the minerals listed under subparagraphs
(A) through (H) that has been chemically treated or
altered, and any asbestiform variety, type, or
component thereof; and
(J) 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 personal injury claim for damages or other relief
presented in a civil action or bankruptcy proceeding,
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 claims
for benefits under a workers' compensation law or
veterans' benefits program, or claims brought by any
person as a subrogee by virtue of the payment of
benefits under a workers' compensation law.
(4) Asbestos claimant.--The term ``asbestos claimant''
means an individual who files an asbestos claim under section
111.
<DELETED> (5) Asbestos court; court.--The terms ``Asbestos
Court'' or ``Court'' means the United States Court of Asbestos
Claims established under section 101.</DELETED>
(6)</DELETED> (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.
<DELETED> (7) Collateral source.--The term ``collateral
source''--</DELETED>
<DELETED> (A) means all collateral sources,
including--</DELETED>
<DELETED> (i) disability
insurance;</DELETED>
<DELETED> (ii) health insurance;</DELETED>
<DELETED> (iii) medicare;</DELETED>
<DELETED> (iv) medicaid;</DELETED>
<DELETED> (v) death benefit
programs;</DELETED>
<DELETED> (vi) defendants;</DELETED>
<DELETED> (vii) insurers of defendants;
and</DELETED>
<DELETED> (viii) compensation trusts;
and</DELETED>
<DELETED> (B) shall not include life insurance.
</DELETED>
(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 judgment or settlement for an asbestos-related injury that is
the subject of a claim filed under section 111.
(7) Court of federal claims; court.--The terms ``Court of
Federal Claims'' or ``Court'' mean the United States Court of
Federal Claims established under section 171 of title 28,
United States Code.
(8) Eligible disease or condition.--The term ``eligible
disease or condition'' means, to the extent that the illness
meets the medical criteria requirements established under
subtitle C of title I, asbestosis/pleural disease, severe
asbestosis disease, mesothelioma, lung cancer I, lung cancer
II, other cancers, and qualifying nonmalignant asbestos-related
diseases.
(9) Fund.--The term ``Fund'' means the Asbestos Injury
Claims Resolution Fund established under section 223.
(10) Law.--The term ``law'' includes all law, judicial or
administrative decisions, rules, regulations, or any other
principle or action having the effect of law.
<DELETED> (11) Participant.--The term ``participant'' means
any person subject to the funding requirements of title II,
including--</DELETED>
<DELETED> (A) any defendant participant subject to
an assessment for contribution under subtitle A of that
title; and</DELETED>
<DELETED> (B) any insurer participant subject to an
assessment for contribution under subtitle B of that
title.</DELETED>
(11) 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 an
assessment for contribution under subtitle A of
that title;
(ii) any insurer participant subject to an
assessment for contribution 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.
(ii) Applicability.--Clause (i) shall not
apply to a person who may be assessed for
contributions under subtitle A of title II for
prior asbestos expenditures related to asbestos
claims that are not covered by an injunction
described under clause (i).
(12) 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.
(13) 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.
(14) Substantially continues.--The term ``substantially
continues'' means that the business operations have not been
significantly modified by the change in ownership.
(15) Successor in interest.--The term ``successor in
interest'' means any person that acquires assets, and
substantially continues the business operations, of a
participant. The factors to be considered in determining
whether a person is a successor in interest include, but are
not limited to--
(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.
(<DELETED>14</DELETED>) (16) 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.
(<DELETED>15</DELETED>) (17) Worker's compensation law.--
The term ``worker's 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. <DELETED>sections</DELETED>
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 Federal
Employers' Liability Act, or damages recovered by any
employee in a liability action against an employer.
TITLE I--ASBESTOS CLAIMS RESOLUTION
<DELETED>Subtitle A--United States Court of Asbestos Claims</DELETED>
<DELETED>SEC. 101. ESTABLISHMENT OF ASBESTOS COURT.</DELETED>
<DELETED> (a) In General.--Part I of title 28, United States Code,
is amended by inserting after chapter 7 the following:</DELETED>
<DELETED>``CHAPTER 9--UNITED STATES COURT OF ASBESTOS CLAIMS</DELETED>
<DELETED>``Sec.
<DELETED>``201. Establishment of the United States Court of Asbestos
Claims.
<DELETED>``202. Magistrates.
<DELETED>``203. Retirement of judges of the United States Court of
Asbestos Claims.
<DELETED>``Sec. 201. Establishment of the United States Court of
Asbestos Claims</DELETED>
<DELETED> ``(a) Establishment and Appointment of Judges.--</DELETED>
<DELETED> ``(1) In general.--The President shall appoint, by
and with the advice and consent of the Senate, 5 judges, who
shall constitute a court of record known as the United States
Court of Asbestos Claims.</DELETED>
<DELETED> ``(2) Article i court.--The Court of Asbestos
Claims is declared to be a court established under article I of
the Constitution of the United States.</DELETED>
<DELETED> ``(b) Term; Removal; Compensation.--</DELETED>
<DELETED> ``(1) Term.--Each judge appointed under subsection
(a) shall serve for a term of 15 years, except that judges
initially appointed shall serve for staggered terms as the
President shall determine appropriate to assure
continuity.</DELETED>
<DELETED> ``(2) Removal.--Judges may be removed by the
President only for good cause.</DELETED>
<DELETED> ``(3) Compensation.--Each judge shall receive a
salary at the rate of pay, and in the same manner, as judges of
the district courts of the United States.</DELETED>
<DELETED> ``(c) Chief Judge.--</DELETED>
<DELETED> ``(1) In general.--The President shall designate 1
of the judges appointed under subsection (b)(1), who is less
than 70 years of age, to serve as chief judge.</DELETED>
<DELETED> ``(2) Term.--The chief judge may continue to serve
as such until--</DELETED>
<DELETED> ``(A) he or she reaches the age of 70
years;</DELETED>
<DELETED> ``(B) another judge is designated as chief
judge by the President; or</DELETED>
<DELETED> ``(C) the expiration of his or her term
under subsection (b)(1).</DELETED>
<DELETED> ``(3) Continuity of service.--Upon the designation
by the President of another judge to serve as chief judge, the
former chief judge may continue to serve as a judge of the
Court of Asbestos Claims for the balance of the term to which
he or she was appointed.</DELETED>
<DELETED> ``(4) Powers of chief judge.--The chief judge is
authorized to--</DELETED>
<DELETED> ``(A) prescribe rules and procedures for
hearings and appeals of the Court of Asbestos Claims
and its magistrates;</DELETED>
<DELETED> ``(B) appoint magistrates;</DELETED>
<DELETED> ``(C) appoint or contract for the services
of such personnel as may be necessary and appropriate
to carry out the responsibilities of the Court of
Asbestos Claims; and</DELETED>
<DELETED> ``(D) make such expenditures as may be
necessary and appropriate in the administration of the
responsibilities of the Court of Asbestos Claims and
the chief judge under this chapter and the Fairness in
Asbestos Injury Resolution Act of 2003.</DELETED>
<DELETED> ``(d) Time and Places of Holding Court.--</DELETED>
<DELETED> ``(1) In general.--The principal office of the
Court of Asbestos Claims shall be in the District of Columbia,
but the Court of Asbestos Claims may hold court at such times
and in such places as the chief judge may prescribe by
rule.</DELETED>
<DELETED> ``(2) Limitation.--The times and places of the
sessions of the Court of Asbestos Claims shall be prescribed
with a view to securing reasonable opportunity to citizens to
appear before the Court of Asbestos Claims.</DELETED>
<DELETED> ``(e) Official Duty Station; Residence.--</DELETED>
<DELETED> ``(1) Duty station.--The official duty station of
each judge of the Court of Asbestos Claims is the District of
Columbia.</DELETED>
<DELETED> ``(2) Residence.--After appointment and while in
active service, each judge of the Court of Asbestos Claims
shall reside within 50 miles of the District of
Columbia.</DELETED>
<DELETED>``Sec. 202. Magistrates</DELETED>
<DELETED> ``(a) Appointment.--The chief judge shall appoint such
magistrates as necessary to facilitate the expeditious processing of
claims.</DELETED>
<DELETED> ``(b) Compensation.--The compensation of magistrates shall
be determined by the chief judge, but shall not exceed the annual rate
of basic pay of level V of the Executive Schedule, as prescribed by
section 5316 of title 5.</DELETED>
<DELETED> ``(c) Retirement.--For purposes of Federal laws relating
to retirement, including chapters 83 and 84 of title 5, magistrates
appointed under this section shall be deemed to be appointed under
section 631 of this title.</DELETED>
<DELETED> ``(d) Regulations.--Except as provided under subsection
(c), chapter 43 shall not apply to magistrates appointed under this
chapter, except the chief judge may prescribe rules similar to the
provisions of chapter 43 to apply to magistrates.</DELETED>
<DELETED>``Sec. 203. Retirement of judges of the United States Court of
Asbestos Claims</DELETED>
<DELETED> ``(a) In General.--For purposes of Federal laws relating
to retirement, judges of the Court of Asbestos Claims shall be treated
in the same manner and to the same extent as judges of the Court of
Federal Claims.</DELETED>
<DELETED> ``(b) Regulations.--In carrying out this section--
</DELETED>
<DELETED> ``(1) the Director of the Administrative Office of
the United States Courts shall promulgate regulations to apply
provisions similar to section 178 of this title (including the
establishment of a Court of Asbestos Claims Judges Retirement
Fund) to judges of the Court of Asbestos Claims; and</DELETED>
<DELETED> ``(2) the Director of the Office of Personnel
Management shall promulgate regulations to apply chapters 83
and 84 of title 5 to judges of the Court of Asbestos
Claims.''.</DELETED>
<DELETED> (b) Technical and Conforming Amendment.--The table of
chapters for part I of title 28, United States Code, is amended by
striking the item relating to chapter 9, and inserting after the item
relating to chapter 7 the following:</DELETED>
<DELETED>``9. United States Court of Asbestos Claims.''.
</DELETED>Subtitle A--United States Court of Federal Claims
SEC. 101. UNITED STATES COURT OF FEDERAL CLAIMS.
(a) In General.--The United States Court of Federal Claims, through
the Office of Special Asbestos Masters, shall have authority to examine
asbestos claims and make awards in accordance with this Act. The Office
of Special Asbestos Masters shall be under the supervision of the
Court.
(b) Office of Special Asbestos Masters.--
(1) Establishment.--There is established the Office of
Special Asbestos Masters within the United States Court of
Federal Claims.
(2) Purpose.--The purpose of the Office of Special Asbestos
Masters is to provide fair compensation in a nonadversarial
manner to individuals whose health has been adversely affected
by exposure to asbestos in the amounts and under the terms
specified in this Act.
(c) Special Asbestos Masters.--
(1) Appointment.--
(A) In general.--The chief judge of the Court of
Federal Claims shall appoint special asbestos masters
as necessary to facilitate the expeditious processing
of claims.
(B) Concurrence of the court.--The appointment and
reappointment of each special asbestos master,
including the chief special asbestos master, shall be
by the concurrence of a majority of the active judges
of the Court.
(2) Limitation in numbers.--The chief judge of the Court
may not appoint more than 20 special asbestos masters,
including the chief special asbestos master, to carry out this
Act, unless the chief judge submits notice to Congress 60 days
before each appointment in excess of that number is made.
(3) Chief special asbestos master.--
(A) Appointment.--The chief judge of the Court
shall appoint a chief special asbestos master in
accordance with paragraph (1).
(B) Term of chief special asbestos master.--The
chief special asbestos master shall serve for a term of
4 years. The chief judge of the Court may reappoint the
chief special asbestos master for additional 2-year
terms in accordance with paragraph (1).
(C) Powers of chief special asbestos master.--The
chief special asbestos master, in consultation with the
chief judge of the Court, may--
(i) prescribe rules and procedures for the
processing of claims;
(ii) appoint or contract for the services
of such personnel, as may be necessary and
appropriate, to carry out the responsibilities
of the Office of Special Asbestos Masters; and
(iii) make such expenditures as may be
necessary and appropriate in the administration
of the responsibilities of the Office of
Special Asbestos Masters under this Act.
(4) Term of special asbestos masters.--The special asbestos
masters shall serve for a term of 4 years and may be
reappointed for additional 2-year terms.
(5) Removal.--Special asbestos masters, including the chief
special asbestos master, shall be subject to removal by the
concurrence of a majority of the active judges of the Court for
incompetency, misconduct, neglect of duty, physical or mental
disability, or other good cause shown.
(6) Compensation.--The compensation of special asbestos
masters shall be determined by the chief judge, but shall not
exceed the annual rate of basic pay of level V of the Executive
Schedule under section 5316 of title 5, United States Code.
(d) Rules of Construction.--
(1) 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.
(2) Health care 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.
Subtitle B--Asbestos Injury Claims Resolution Procedures
SEC. 111. FILING OF CLAIMS.
(a) Who May Submit.--
(1) General rule.--Any individual who has suffered from an
eligible disease or condition that is believed to meet the
requirements established under subtitle C (or the spouse,
parent, child, or other relative of such individual in a
representative capacity, or the executor of the estate of such
individual) may file a claim with the <DELETED>Asbestos Court</DELETED>
Court of Federal Claims for an award with respect to such
injury.
(2) Rules.--The <DELETED>Asbestos Court</DELETED> Court of
Federal Claims may issue procedural rules to specify
individuals who may file an asbestos claim as a representative
of another individual.
(3) Limitation.--An asbestos claim may not be filed by any
person seeking contribution or indemnity.
(b) Required Information.--To be valid, an asbestos claim filed
under subsection (a) shall be notarized and 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) a detailed description of the work history of the
claimant, including social security records or a signed release
permitting access to such records;
(4) a detailed description of the asbestos exposure of the
claimant, including information on the <DELETED>identity of any
product or manufacturer,</DELETED> site, or location of
exposure, plant name, and duration and intensity of exposure;
(5) a detailed description of the tobacco product use
history of the claimant, including frequency and duration;
(6) an identification and description of the asbestos-
related diseases of the claimant, including a written report by
the claimant's physician with medical diagnoses, x-ray films,
and test results necessary to make a determination of medical
eligibility that complies with the applicable requirements of
this subtitle and subtitle C;
(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;
<DELETED>and
</DELETED> (8) any claimant who asserts that the claimant is
a nonsmoker or an ex-smoker, as defined in section 131, shall
provide sufficient evidence of nonsmoking, including relevant
medical records; and
<DELETED>(8)</DELETED> (9) any other information that is
required to be included under procedural rules issued by the
Court.
(c) Statute of Limitations.--
(1) In general.--Except as provided in paragraphs (2) and
(3), if an individual fails to file an asbestos claim with the
<DELETED>Asbestos Court</DELETED> Court of Federal Claims under
this section within <DELETED>2</DELETED> 4 years after the date
on which the individual first--
(A) received a medical diagnosis of an eligible
disease or condition as provided for under this
subtitle and subtitle C; or
(B) discovered facts that would have led a
reasonable person to obtain a medical diagnosis with
respect to an eligible disease or condition,
any claim relating to that injury, and any other asbestos claim
related to that injury, shall be extinguished, and any recovery
thereon shall be prohibited.
(2) Effect on pending claims.--If an asbestos claimant has
any timely filed claim for an asbestos-related injury that is
pending in a Federal or State court or with a trust established
under title 11, United States Code, on the date of enactment of
this Act, such claimant shall file an asbestos claim under this
section within <DELETED>2</DELETED> 4 years after such date of
enactment or be barred from receiving any award under this
title.
(3) Effect of multiple injuries.--An asbestos claimant who
receives an award under this title for an eligible disease or
condition, and who subsequently develops another such injury,
shall be eligible for additional awards under this title
(subject to appropriate setoffs for such prior recovery of any
award under this title and from any other collateral source)
and the statute of limitations under paragraph (1) shall not
begin to run with respect to such subsequent injury until such
claimant obtains a medical diagnosis of such other injury or
discovers facts that would have led a reasonable person to
obtain such a diagnosis.
<DELETED> (4) Rule of construction.--Paragraph (2) shall be
interpreted as a statute of limitations and be construed to the
benefit of the Fund and of any person who might otherwise have
been made subject to an asbestos claim to which such paragraph
is applied.</DELETED>
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. ESSENTIAL ELEMENTS OF ELIGIBLE ASBESTOS CLAIM.
To be eligible for an award under this subtitle for an asbestos-
related injury, an individual shall--
(1) file an asbestos claim in a timely manner in accordance
with section 111; and
(2) prove, by a preponderance of the evidence that--
(A) the claimant suffers from an eligible disease
or condition, as demonstrated by evidence (submitted as
part of the claim) that meets the medical criteria
requirements and diagnostic criteria requirements
established under subtitle C; and
(B) the claimant meets the latency criteria
requirements and the exposure criteria requirements
established under subtitle C.
SEC. 114. ELIGIBILITY DETERMINATIONS AND CLAIM AWARDS.
(a) Claims Examiners.--
(1) In general.--The <DELETED>Asbestos Court</DELETED>
Office of Special Asbestos Masters, in consultation with the
chief judge of the Court of Federal Claims, shall appoint, or
contract for the services of, qualified individuals to assist
<DELETED>magistrates</DELETED> special asbestos masters by
conducting eligibility reviews of asbestos claims filed with
the Court.
(2) Criteria.--The <DELETED>Asbestos Court</DELETED> Office
of Special Asbestos Masters, in consultation with the chief
judge of the Court of Federal Claims, shall establish criteria
with respect to the qualifications of individuals who are
eligible to serve as claims examiners and, in developing such
criteria, shall consult with such experts as the Court
determines appropriate.
(b) Referral of Asbestos Claim.--Not later than 20 days after the
filing of an asbestos claim with the <DELETED>Asbestos Court</DELETED>
Court of Federal Claims, the Court shall refer such claim to <DELETED>a
magistrate</DELETED> the Office of Special Asbestos Masters.
(c) Initial Review.--
(1) In general.--Under the direction of a
<DELETED>magistrate</DELETED> special asbestos master, a claims
examiner shall make an initial review of an asbestos claim to
determine whether all required information has been submitted
by the claimant.
(2) Notice of incomplete claim.--If the claims examiner
determines that all required information has not been
submitted, the examiner--
(A) shall notify the claimant of such determination
and require the submission of additional information
necessary for a determination of eligibility;
(B) may compel the submission of any additional
information;
(C) may request that the claimant undergo
additional medical examinations and tests if
information from such examinations or tests is
necessary to enable the examiner to make a
determination of medical eligibility; and
(D) may require any releases necessary to enable
the examiner to obtain medical or other information
relevant to the determination of eligibility.
(3) Independent reviews of medical evidence.--
(A) In general.--The Court of Federal Claims shall
establish procedures for independently evaluating the
medical evidence submitted in support of claims.
(B) Review of certified b readers.--
(i) In general.--At a minimum, the Court of
Federal Claims shall prescribe procedures for
special asbestos masters to randomly assign
claims for confirmation by an independent
certified B reader of x-rays submitted in
support of a claim, the cost of which shall be
borne by the Fund.
(ii) Disagreement.--If an independent
certified B reader assigned under clause (i)
disagrees with the quality grading or ILO level
assigned to an x-ray submitted in support of a
claim, the Court of Federal Claims shall
require a review of such x-rays by a second
independent certified B reader.
(iii) Denial of claim.--If neither
certified B reader under clause (ii) agrees
with the quality grading and the ILO grade
level assigned to an x-ray as part of the
claim, the special asbestos master shall
recommend denial of the claim under subsection
(f).
(iv) 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.
(4) Smoking assessment.--
(A) In general.--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 sections 121 and 131, a
claimant shall provide consent for the claims examiner
to obtain relevant historical records, including--
(i) records of past medical treatment and
evaluation;
(ii) affidavits of the claimant or a family
member;
(iii) applications for insurance and
supporting materials; and
(iv) employer medical examinations if
available after a good faith attempt to obtain
such historical records.
(B) Review.--The frequency of review of historical
records submitted under subparagraph (A) shall be at
the discretion of the claims examiner, but shall
address at least 5 percent of the claimant nonsmokers.
(C) Consent.--Claimants that assert they are
nonsmokers and ex-smokers consent to the performance of
blood tests or any other appropriate medical test to
confirm the validity of the assertion.
(D) Penalty for false statements.--Any false
information submitted under this subsection shall be
subject to criminal prosecution or civil penalties as
provided under section 401.
(d) Expeditious Determinations.--The <DELETED>Asbestos Court</DELETED>
Court of Federal Claims shall prescribe rules to expedite claims for
asbestos claimants with exigent circumstances.
(e) Audit and Personnel Review Procedures.--The <DELETED>Asbestos
Court</DELETED> Court of Federal Claims shall establish audit and
personnel review procedures for evaluating the accuracy of eligibility
recommendations of <DELETED>magistrates</DELETED> special asbestos
masters.
<DELETED> (f) Eligibility Determinations.--</DELETED>
<DELETED> (1) In general.--Not later than 60 days after the
receipt by a magistrate of all required information and
requested medical advice with respect to an asbestos claim, the
magistrate shall transmit a recommendation of the amount of any
award to which the claimant is entitled and findings of fact to
a judge of the Asbestos Court.</DELETED>
<DELETED> (2) Admissibility of findings of fact.--A
determination under paragraph (1) shall include relevant
findings of fact and shall be admissible as evidence in any
judicial review.</DELETED>
<DELETED> (g) Decision of Judge.--</DELETED>
<DELETED> (1) In general.--Not later than 30 days after
receipt of a recommendation of a magistrate, a judge of the
Asbestos Court shall make a final decision of any award to
which the claimant is entitled.</DELETED>
<DELETED> (2) Waiver of judicial review.--The final decision
under paragraph (1) shall include an acceptance form by which
the claimant may waive the right to judicial review and
expedite payment of an award from the Fund.</DELETED>
(f) Eligibility Determinations.--
(1) In general.--Not later than 60 days after the receipt
by a special asbestos master of all required information and
requested medical advice with respect to an asbestos claim, the
special asbestos master shall determine the amount of any award
to which the claimant is entitled.
(2) Admissibility of findings of fact.--A determination
under paragraph (1) shall include relevant findings of fact and
shall be admissible as evidence in any additional review.
(g) Waiver of Additional Review.--The final decision under
subsection (f) shall include an acceptance form by which the claimant
may waive the right to additional review and expedite payment of an
award from the Fund.
<DELETED> (h) Awarding of Compensation.--</DELETED>
<DELETED> (1) In general.--If a judge of the Asbestos Court
determines that an asbestos claimant is entitled to an award,
the Court shall notify the Administrator to award the claimant
an amount of the judge's decision from the Fund.</DELETED>
<DELETED> (2) Claim extinguished.--The acceptance of a
payment under this Act shall extinguish all claims related to
such payment.</DELETED>
(h) Awarding of Compensation.--
(1) In general.--If a special asbestos master determines
that an asbestos claimant is entitled to an award and the
claimant waives any right to appeal, the special asbestos
master shall notify the Administrator to award the claimant an
amount of the special asbestos master's decision from the Fund.
(2) Claim extinguished.--The acceptance of a payment under
this Act shall extinguish all claims related to such payment.
(i) Appeal to Panel of Special Asbestos Masters.--
(1) In general.--Not later than 30 days after receiving
notice of the decision of a special asbestos master under
section 114, a claimant may appeal the special asbestos
master's determination to a panel of 3 special masters. Within
60 days after receipt of an appeal, the panel may reverse the
special asbestos master's determination if--
(A) new and material evidence is available that,
despite due diligence, was not available when the
record closed;
(B) the decision of the special asbestos master is
based on an erroneous interpretation of statute or
regulation; or
(C) the decision of the special asbestos master is
clearly erroneous based on the evidence.
(2) Awarding of Compensation.--
(A) In general.--If a panel of special asbestos
masters determines that an asbestos claimant is
entitled to an award and the claimant waives any right
to appeal, the panel shall notify the Administrator to
award the claimant an amount of the decision of the
panel from the Fund.
(B) Claim extinguished.--The acceptance of a
payment as provided under this subsection shall
extinguish all claims related to such payment.
(j) Medical Advisory Committee.--
(1) In general.--The chief judge of the Court of Federal
Claims may appoint a Medical Advisory Committee of the Court of
Federal Claims consisting of qualified physicians for purposes
of providing appropriate medical advice relating to the review
of claims.
(2) Qualifications.--To be eligible for appointment to the
Medical Advisory Committee under paragraph (1), a person shall
be--
(A) a physician licensed in any State;
(B) board-certified in pulmonary medicine,
occupational medicine, internal medicine, oncology, or
pathology; and
(C) actively and primarily practicing medicine in a
field directly related to the board certification of
the physician.
(3) Duties.--Special asbestos masters and claims examiners
may refer questions concerning the medical eligibility of
claimants to the committee for its advice and recommendations.
SEC. 115. MEDICAL EVIDENCE AUDITING PROCEDURES.
(a) Development.--The <DELETED>Asbestos Court</DELETED> Court of
Federal Claims shall develop methods for auditing the medical evidence
submitted as part of an asbestos claim, including methods to ensure the
independent reading of x-rays and results of pulmonary function tests.
The Court may develop additional methods for auditing other types of
evidence or information received by the Court.
(b) Refusal To Consider Certain Evidence.--
(1) In general.--If the <DELETED>Asbestos Court</DELETED>
Court of Federal Claims determines that an audit conducted in
accordance with the methods developed under subsection (a)
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,
the Court shall notify claims examiners and the
<DELETED>magistrates</DELETED> special asbestos masters that
any medical evidence from such physician or facility shall be
unacceptable for purposes of establishing eligibility for an
award under this Act.
(2) Notification.--Upon a determination by the
<DELETED>Asbestos Court</DELETED> Court of Federal Claims under
paragraph (1), the Court shall notify the physician or medical
facility involved of the results of the audit. Such physician
or facility shall have a right to appeal the determination of
the Court under procedures issued by the Court.
SEC. 116. CLAIMANT ASSISTANCE PROGRAM.
(a) Establishment.--The <DELETED>Asbestos Court</DELETED> Court of
Federal Claims shall establish an asbestos claimant assistance program
to provide assistance to claimants in preparing and submitting asbestos
claim applications and in responding to claimant inquiries.
(b) Legal Assistance.--
(1) In general.--As part of the program established under
subsection (a), the <DELETED>Asbestos Court</DELETED> Court of
Federal Claims 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 Court shall maintain a roster of qualified attorneys who
have agreed to provide pro bono services to asbestos claimants
under rules established by the Court. The claimants shall not
be required to use the attorneys listed on such roster.
(3) Notice.--
(A) Notice by court.--The Court 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
asbestos 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.
Subtitle C--Medical Criteria
<DELETED>SEC. 121. ESSENTIAL ELEMENTS OF ELIGIBLE ASBESTOS
CLAIM.</DELETED>
<DELETED> To be eligible for an award under this title for an
asbestos-related injury, an individual shall--</DELETED>
<DELETED> (1) file an asbestos claim under this title in a
timely manner; and</DELETED>
<DELETED> (2) prove, by a preponderance of the evidence
that--</DELETED>
<DELETED> (A) the claimant suffers from an eligible
disease or condition, as demonstrated by evidence
(submitted as part of the claim) that meets the
diagnostic criteria requirements described in section
122 and the medical criteria requirements described in
section 124; and</DELETED>
<DELETED> (B) the claimant meets the latency
criteria requirements described in section 123 and the
exposure criteria requirements described in section
125.</DELETED>
<DELETED>SEC. 122. DIAGNOSTIC CRITERIA REQUIREMENTS.</DELETED>
<DELETED> (a) In General.--To be eligible to receive an award under
this title for an asbestos-related injury, the claim submitted by the
asbestos claimant shall demonstrate a medical diagnosis that meets the
requirements of this section.</DELETED>
<DELETED> (b) Diagnosis.--A medical diagnosis meets the requirements
of this section if the diagnosis--</DELETED>
<DELETED> (1) is made by a physician who--</DELETED>
<DELETED> (A) treated, or is treating, the
claimant;</DELETED>
<DELETED> (B) conducted an in-person medical
examination of the claimant; and</DELETED>
<DELETED> (C) is licensed to practice medicine in
the State in which the examination occurred and in
which the diagnosis is rendered;</DELETED>
<DELETED> (2) includes a review by the physician of the work
history, asbestos exposure pattern, and smoking history of the
claimant, or other factors determined appropriate by the
Asbestos Court;</DELETED>
<DELETED> (3) is independently verified with respect to the
duration, proximity, regularity, and intensity of the asbestos
exposure involved; and</DELETED>
<DELETED> (4) has excluded other more likely causes of the
injury of the claimant.</DELETED>
<DELETED> (c) Results of Medical Examinations and Tests.--</DELETED>
<DELETED> (1) In general.--In making the demonstration
required under subsection (a), an asbestos claimant shall
submit--</DELETED>
<DELETED> (A) x-rays (including both films and B-
reader reports);</DELETED>
<DELETED> (B) detailed results of pulmonary function
tests (including spirometric tracings);</DELETED>
<DELETED> (C) laboratory tests; and</DELETED>
<DELETED> (D) the results of medical examination or
reviews of other medical evidence.</DELETED>
<DELETED> (2) Procedural requirements.--A submission under
paragraph (1) shall comply with the requirements of this Act
and recognized medical standards regarding equipment, testing
methods, and procedures to ensure that such medical evidence is
reliable.</DELETED>
<DELETED> (d) Sufficiency of Medical Evidence.--In making
determinations under this section, a magistrate shall not make a
determination unless the medical evidence provided in support of the
asbestos claim is credible and consistent with this section, the
medical criteria described in section 124, and recognized medical
standards.</DELETED>
<DELETED> (e) Attorney Retention Agreements.--An attorney retention
agreement shall not be required as a prerequisite to a medical
examination or medical screening for purposes of obtaining a medical
diagnosis or other medical information under this section.</DELETED>
<DELETED> (f) Rules.--The Asbestos Court shall prescribe rules to
implement the diagnostic criteria requirements to be used in applying
this section.</DELETED>
<DELETED>SEC. 123. LATENCY CRITERIA REQUIREMENTS.</DELETED>
<DELETED> (a) In General.--To be eligible to receive an award under
this title for an asbestos-related injury, the claim submitted by the
asbestos claimant shall demonstrate that the claimant was exposed to
asbestos--</DELETED>
<DELETED> (1) in a manner that meets the exposure
requirements of sections 124 and 125;</DELETED>
<DELETED> (2) within the United States or its territories or
possessions; and</DELETED>
<DELETED> (3) for at least 10 years before the initial
diagnosis of any asbestos-related injury.</DELETED>
<DELETED> (b) Consistency With Medical Criteria.--An asbestos
claimant shall be required to demonstrate that any delay between
asbestos exposure and the asbestos-related injury is consistent with
medical criteria concerning the latency periods typically associated
with the disease category for which the claim is being made.</DELETED>
<DELETED> (c) Variations in Latency Periods.--Latency periods under
this section may vary based on the eligible disease or condition
involved.</DELETED>
<DELETED> (d) Rules.--The Asbestos Court shall prescribe rules,
based on the medical literature or other appropriate medical evidence
concerning latency periods, for the purpose of implementing the
criteria used in applying this section.</DELETED>
<DELETED>SEC. 124. MEDICAL CRITERIA REQUIREMENTS.</DELETED>
<DELETED> (a) Definitions.--In this section, the following
definitions shall apply:</DELETED>
<DELETED> (1) Bilateral asbestos-related nonmalignant
disease.--The term ``bilateral asbestos-related nonmalignant
disease'' means a diagnosis of bilateral asbestos-related
nonmalignant disease based on--</DELETED>
<DELETED> (A) an x-ray reading of
</DELETED>\<DELETED>1/0</DELETED>\ <DELETED>or higher
on the ILO scale; or</DELETED>
<DELETED> (B) an x-ray showing bilateral pleural
plaques or pleural thickening, bilateral interstitial
fibrosis, or bilateral interstitial markings.</DELETED>
<DELETED> (2) 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
</DELETED>\<DELETED>1/4</DELETED>\ <DELETED>of the projection
of the lateral chest wall.</DELETED>
<DELETED> (3) 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.</DELETED>
<DELETED> (4) 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.</DELETED>
<DELETED> (5) ILO grade.--The term ``ILO grade'' means the
radiological ratings for the presence of lung or pleural
changes as determined from a chest x-ray, all as established
from time to time by the International Labor
Organization.</DELETED>
<DELETED> (6) Pathological evidence of asbestosis.--The term
``pathological evidence of asbestosis'' means proof of
asbestosis based on the pathological grading system for
asbestosis described in the Special Issue of the Archives of
Pathology and Laboratory Medicine, ``Asbestos-associated
Diseases'', Vol. 106, No. 11, App. 3 (October 8,
1982).</DELETED>
<DELETED> (7) Pulmonary function testing.--The term
``pulmonary function testing'' means spirometry testing that is
in compliance with the quality criteria established from time
to time by the American Thoracic Society and is performed on
equipment which is in compliance with the standards of the
American Thoracic Society for technical quality and
calibration.</DELETED>
<DELETED> (A) handled raw asbestos fibers on a
regular basis;</DELETED>
<DELETED> (B) fabricated asbestos-containing
products so that the claimant in the fabrication
process was exposed on a regular basis to raw asbestos
fibers;</DELETED>
<DELETED> (C) altered, repaired, or otherwise worked
with an asbestos-containing product such that the
claimant was exposed on a regular basis to asbestos
fibers; or</DELETED>
<DELETED> (D) was employed in an industry and
occupation such that the claimant worked on a regular
basis in close proximity to workers engaged in the
activities described under subparagraph (A), (B), or
(C).</DELETED>
<DELETED> (8) Significant occupational exposure.--The term
``significant occupational exposure'' means employment for a
cumulative period of at least 5 years, in an industry and an
occupation in which the claimant--</DELETED>
<DELETED> (9) TLC.--The term ``TLC'' means total lung
capacity, which is the volume of air in the lung after maximal
inspiration.</DELETED>
<DELETED> (b) Requirement.--To be eligible for an award or medical
monitoring reimbursement under this title, a claimant shall establish
that the claimant meets the medical criteria for 1 of the following
categories:</DELETED>
<DELETED> (1) For Level I: Asymptomatic Exposure, the
claimant shall provide--</DELETED>
<DELETED> (A) a diagnosis that meets the
requirements of section 122 of a bilateral asbestos-
related nonmalignant disease or an asbestos-related
malignancy (except mesothelioma); and</DELETED>
<DELETED> (B) meaningful and credible evidence of 6
months of occupational exposure to asbestos before
December 31, 1982.</DELETED>
<DELETED> (2) For Level II: Asbestosis/Pleural Disease A,
the claimant shall provide--</DELETED>
<DELETED> (A) a diagnosis that meets the
requirements of section 122 of a bilateral asbestos-
related nonmalignant disease by B-reader certified
chest x-rays; and</DELETED>
<DELETED> (B) meaningful and credible evidence of--
</DELETED>
<DELETED> (i) 6 months of occupational
exposure to asbestos before December 31, 1982;
and</DELETED>
<DELETED> (ii) significant occupational
exposure.</DELETED>
<DELETED> (3) For Level III: Asbestosis/Pleural Disease B,
the claimant shall provide--</DELETED>
<DELETED> (A) a diagnosis that meets the
requirements of section 122 of asbestosis by B-reader
certified chest x-rays showing bilateral pleural
disease of B2 or greater, or by pathological evidence
of asbestosis;</DELETED>
<DELETED> (B) pulmonary function testing that
shows--</DELETED>
<DELETED> (i) TLC less than 80 percent of
predicted; or</DELETED>
<DELETED> (ii) FVC less than 80 percent of
predicted, and a FEV1/FVC ratio of not less
than 65 percent;</DELETED>
<DELETED> (C) meaningful and credible evidence of--
</DELETED>
<DELETED> (i) 6 months of occupational
exposure to asbestos before December 31, 1982;
and</DELETED>
<DELETED> (ii) significant occupational
exposure; and</DELETED>
<DELETED> (D) supporting medical documentation
establishing asbestos exposure as a contributing factor
in causing the pulmonary condition in
question.</DELETED>
<DELETED> (4) For Level IV: Severe Asbestosis, the claimant
shall provide--</DELETED>
<DELETED> (A) a diagnosis that meets the
requirements of section 122 of asbestosis by B-reader
certified chest x-rays of ILO Grade
</DELETED>\<DELETED>2/1</DELETED>\ <DELETED>or greater,
or by pathological evidence of asbestosis;</DELETED>
<DELETED> (B) pulmonary function testing that
shows--</DELETED>
<DELETED> (i) TLC less than 65 percent of
predicted; or</DELETED>
<DELETED> (ii) FVC less than 65 percent of
predicted, and a FEV1/FVC ratio greater than 65
percent;</DELETED>
<DELETED> (C) meaningful and credible evidence of--
</DELETED>
<DELETED> (i) 6 months of occupational
exposure to asbestos before December 31, 1982;
and</DELETED>
<DELETED> (ii) significant occupational
exposure; and</DELETED>
<DELETED> (D) supporting medical documentation
establishing asbestos exposure as a contributing factor
in causing the pulmonary condition in
question.</DELETED>
<DELETED> (5) For Level V: Other Cancer, the claimant shall
provide--</DELETED>
<DELETED> (A) a diagnosis that meets the
requirements of section 122 of a primary laryngeal,
esophageal, pharyngeal, or stomach cancer;</DELETED>
<DELETED> (B) evidence of an underlying bilateral
asbestos-related nonmalignant disease;</DELETED>
<DELETED> (C) meaningful and credible evidence of--
</DELETED>
<DELETED> (i) 6 months of occupational
exposure to asbestos before December 31, 1982;
and</DELETED>
<DELETED> (ii) significant occupational
exposure; and</DELETED>
<DELETED> (D) supporting medical documentation
establishing asbestos exposure as a contributing factor
in causing the other cancer in question.</DELETED>
<DELETED> (6) For Level VI: Lung Cancer One, the claimant
shall provide--</DELETED>
<DELETED> (A) a diagnosis that meets the
requirements of section 122 of a primary lung
cancer;</DELETED>
<DELETED> (B) meaningful and credible evidence of 6
months of occupational exposure to asbestos before
December 31, 1982; and</DELETED>
<DELETED> (C) supporting medical documentation and
certification by or on behalf of the claimant
establishing asbestos exposure as a contributing factor
causing the relevant lung cancer.</DELETED>
<DELETED> (7) For Level VII: Lung Cancer Two, the claimant
shall provide--</DELETED>
<DELETED> (A) a diagnosis that meets the
requirements of section 122 of a primary lung
cancer;</DELETED>
<DELETED> (B) evidence of an underlying bilateral
asbestos-related nonmalignant disease;</DELETED>
<DELETED> (C) meaningful and credible evidence of--
</DELETED>
<DELETED> (i) 6 months of occupational
exposure to asbestos before December 31, 1982;
and</DELETED>
<DELETED> (ii) significant occupational
exposure; and</DELETED>
<DELETED> (D) supporting medical documentation and
certification by or on behalf of the claimant
establishing asbestos exposure as a contributing factor
causing the relevant lung cancer.</DELETED>
<DELETED> (8) For Level VIII: Mesothelioma, the claimant
shall provide--</DELETED>
<DELETED> (A) a diagnosis that meets the
requirements of section 122 of mesothelioma;
and</DELETED>
<DELETED> (B) meaningful and credible evidence of
exposure to asbestos before December 31,
1982.</DELETED>
<DELETED>SEC. 125. EXPOSURE CRITERIA REQUIREMENTS.</DELETED>
<DELETED> (a) Requirement.--To be eligible to receive an award under
this title for an asbestos-related injury, the claim submitted by the
asbestos claimant shall contain information to demonstrate that--
</DELETED>
<DELETED> (1) the claimant meets the minimum exposure
requirements under this subtitle; and</DELETED>
<DELETED> (2) such exposure to asbestos occurred within the
United States, its territories, or possessions.</DELETED>
<DELETED> (b) Burden of Proof.--</DELETED>
<DELETED> (1) In general.--An asbestos claimant has the
burden of demonstrating meaningful and credible exposure to
asbestos for purposes of this subtitle.</DELETED>
<DELETED> (2) Evidence.--The demonstration under paragraph
(1) may be established by--</DELETED>
<DELETED> (A) an affidavit submitted by the
claimant, a coworker of the claimant, or a family
member, in the case of a deceased claimant;</DELETED>
<DELETED> (B) employment records;</DELETED>
<DELETED> (C) invoices;</DELETED>
<DELETED> (D) construction or other similar records;
or</DELETED>
<DELETED> (E) other credible evidence.</DELETED>
<DELETED> (c) Rules.--</DELETED>
<DELETED> (1) Exposure information.--The Asbestos Court
shall issue rules prescribing specific exposure information
that shall be submitted to permit the Court to process an
asbestos claim and prescribing a proof of claim form. Such
rules may provide that a claims examiner or magistrate, as
applicable, may require the submission of other or additional
evidence of exposure when determined to be appropriate and
necessary.</DELETED>
<DELETED> (2) Rebuttable presumptions.--The Asbestos Court
may prescribe rules identifying specific industries,
occupations within those industries, time periods, and
employment periods for which significant occupational exposure
(as defined under section 124) may be a rebuttable presumption
for asbestos claimants who provide meaningful and credible
evidence that the claimant worked in that industry and
occupation for the requisite period of time. The Administrator
may provide evidence to rebut this presumption.</DELETED>
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 that the
claimant never smoked.
(12) PO2.--The term ``PO2'' means the partial pressure
(tension) of oxygen, which measures the amount of dissolved
oxygen in the blood.
(13) Pulmonary function testing.--The term ``pulmonary
function testing'' means spirometry testing that is in material
compliance with the quality criteria established by the
American Thoracic Society and is performed on equipment which
is in material compliance with the standards of the American
Thoracic Society for technical quality and calibration.
(14) Substantial occupational exposure to asbestos.--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--
(A) handled raw asbestos fibers;
(B) fabricated asbestos-containing products so that
the claimant in the fabrication process was exposed to
raw asbestos fibers;
(C) altered, repaired, or otherwise worked with an
asbestos-containing product such that the claimant was
exposed on a regular basis to asbestos fibers; or
(D) worked in close proximity to other workers
engaged in the activities described under subparagraph
(A), (B), or (C) such that the claimant was exposed on
a regular basis to asbestos fibers.
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\ its value. Each year after 1986 shall be counted
as \1/10\ 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 the Medical Advisory Committee.
(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 non-
malignant asbestos-related disease; or
(ii) an x-ray reading by a certified B-
reader;
(C) for disease Levels VI through X, 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 X, 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) General exposure requirements.--In order to establish
exposure to asbestos, a claimant shall present meaningful and
credible evidence--
(A) by an affidavit of the claimant;
(B) by an affidavit of a coworker or family member,
if the claimant is deceased and such evidence is found
in proceedings under this title to be reasonably
reliable;
(C) by invoices, construction, or similar records;
or
(D) any other credible evidence.
(3) Take-home exposure.--
(A) In general.--A claimant may alternatively
satisfy the medical criteria requirements of this
section where a claim is filed by a person who alleges
their exposure to asbestos was the result of living
with a person who, if the claim had been filed by that
person, would have met the exposure criteria for the
given disease level, and the claimant lived with such
person for the time period necessary to satisfy the
exposure requirement for the claimed disease level.
(B) Review.--Except for claims for disease Level X
(mesothelioma), all claims alleging take-home exposure
shall be submitted as an exceptional medical claim
under section 121(f) for review by the Medical Advisory
Committee.
(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 Court of Federal Claims 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, 2003.
Claimants under this section shall provide such supporting
documentation as the Court of Federal Claims shall require.
(d) Asbestos Disease Levels.--
(1) Nonmalignant level i.--To receive Level I compensation,
a claimant shall provide--
(A) a diagnosis of bilateral asbestos-related
nonmalignant disease; and
(B) evidence of 5 years cumulative occupational
exposure to asbestos.
(2) Nonmalignant level ii.--To receive Level II
compensation, a claimant shall provide--
(A) a diagnosis of bilateral asbestos-related
nonmalignant disease with ILO grade of 1/1 or greater,
and showing small irregular opacities of shape or size
either ss, st, or tt and present in both lower lung
zones, or asbestosis determined by pathology, or
blunting of either costophrenic angle and bilateral
pleural plaque or bilateral pleural thickening of at
least grade B2 or greater, or bilateral pleural disease
of grade B2 or greater;
(B) evidence of TLC less than 80 percent or FVC
less than the lower limits of normal, and FEV1/FVC
ratio less than 65 percent;
(C) evidence of 5 or more weighted years of
substantial occupational exposure to asbestos; and
(D) supporting medical documentation establishing
asbestos exposure as a contributing factor in causing
the pulmonary condition in question.
(3) Nonmalignant level iii.--To receive Level III
compensation a claimant shall provide--
(A) a diagnosis of bilateral asbestos-related
nonmalignant disease with ILO grade of 1/0 or greater
and showing small irregular opacities of shape or size
either ss, st, or tt and present in both lower lung
zones, or asbestosis determined by pathology, or
diffuse pleural thickening, or bilateral pleural
disease of B2 or greater;
(B) evidence of TLC less than 80 percent; FVC less
than the lower limits of normal and FEV1/FVC ratio
greater than or equal to 65 percent; or evidence of a
decline in FVC of 20 percent or greater, after allowing
for the expected decrease due to aging, and an FEV1/FVC
ratio greater than or equal to 65 percent documented
with a second spirometry;
(C) evidence of 5 or more weighted years of
substantial occupational exposure to asbestos; and
(D) supporting medical documentation--
(i) establishing asbestos exposure as a
contributing factor in causing the pulmonary
condition in question; and
(ii) excluding other more likely causes of
that pulmonary condition.
(4) Nonmalignant level iv.--To receive Level IV
compensation a claimant shall provide--
(A) diagnosis of bilateral asbestos-related
nonmalignant disease with ILO grade of 1/1 or greater
and showing small irregular opacities of shape or size
either ss, st, or tt and present in both lower lung
zones, or asbestosis determined by pathology, or
diffuse pleural thickening, or bilateral pleural
disease of B2 or greater;
(B) evidence of TLC less than 60 percent or FVC
less than 60 percent, and FEV1/FVC ratio greater than
or equal to 65 percent;
(C) evidence of 5 or more weighted years of
substantial occupational exposure to asbestos before
diagnosis; and
(D) supporting medical documentation--
(i) establishing asbestos exposure as a
contributing factor in causing the pulmonary
condition in question; and
(ii) excluding other more likely causes of
that pulmonary condition.
(5) Nonmalignant level v.--To receive Level V compensation
a claimant shall provide--
(A) diagnosis of bilateral asbestos-related
nonmalignant disease with ILO grade of 1/1 or greater
and showing small irregular opacities of shape or size
either ss, st, or tt and present in both lower lung
zones, or asbestosis determined by pathology, or
diffuse pleural thickening, or bilateral pleural
disease of B2 or greater;
(B)(i) evidence of TLC less than 50 percent or FVC
less than 50 percent, and FEV1/FVC ratio greater than
or equal to 65 percent;
(ii) DLCO less than 40 percent of predicted, plus a
FEV1/FVC ratio not less than 65 percent; or
(iii) PO2 less than 55 mm/Hg, plus a FEV1/FVC ratio
not less than 65 percent;
(C) evidence of 5 or more weighted years of
substantial occupational exposure to asbestos; and
(D) supporting medical documentation--
(i) establishing asbestos exposure as a
contributing factor in causing the pulmonary
condition in question; and
(ii) excluding other more likely causes of
that pulmonary condition.
(6) Malignant level vi.--
(A) In general.--To receive Level VI compensation a
claimant shall provide--
(i) a diagnosis of a primary colorectal,
laryngeal, esophageal, pharyngeal, or stomach
cancer on the basis of findings by a board
certified pathologist;
(ii) evidence of a bilateral asbestos-
related nonmalignant disease;
(iii) evidence of 15 or more weighted years
of substantial occupational exposure to
asbestos; and
(iv) supporting medical documentation
establishing asbestos exposure as a
contributing factor in causing the cancer in
question.
(B) Referral to medical advisory committee.--All
claims filed with respect to Level VI under this
paragraph shall be referred to the Medical Advisory
Committee 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 Medical
Advisory Committee that rebuts that presumption.
(C) Request for referral to medical advisory
committee.--A claimant filing a claim with respect to
Level VI under this paragraph may request that the
claim be referred to the Medical Advisory Committee for
a determination on amount of award. In making its
determination under this subparagraph, the Medical
Advisory Committee 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 15 or more weighted years
of substantial occupational exposure to
asbestos; and
(iii) supporting medical documentation
establishing asbestos exposure as a
contributing factor in causing the lung cancer
in question.
(B) Medical advisory committee.--All claims filed
relating to Level VII under this paragraph shall be
referred to the Medical Advisory Committee for a
determination on the amount of award. In making its
determination under this subparagraph, the Medical
Advisory Committee 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--
(i) a diagnosis of a primary lung cancer
disease on the basis of findings by a board
certified pathologist;
(ii) evidence of bilateral pleural placques
or bilateral pleural thickening or bilateral
pleural calcification;
(iii) evidence of 12 or more weighted years
of substantial occupational exposure to
asbestos; and
(iv) supporting medical documentation
establishing asbestos exposure as a
contributing factor in causing the lung cancer
in question.
(B) Medical advisory committee.--A claimant filing
a claim relating to Level VIII under this paragraph may
request that the claim be referred to the Medical
Advisory Committee for a determination on amount of
award. In making its determination under this
subparagraph, the Medical Advisory Committee 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.--
(A) In general.--To receive Level IX 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)(I) evidence 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) evidence 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; or
(III) asbestosis determined by pathology
and 10 or more weighted years of substantial
occupational exposure to asbestos; and
(iii) supporting medical documentation
establishing asbestos exposure as a
contributing factor in causing the lung cancer
in question.
(B) Medical advisory committee.--A claimant filing
a claim with respect to Level IX under this paragraph
may request that the claim be referred to the Medical
Advisory Committee for a determination on amount of
award. In making its determination under this
subparagraph, the Medical Advisory Committee 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.
(10) Malignant level x.--To receive Level X 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 the Medical Advisory Committee
under section 121(f) for a determinination of
eligibility.
(e) Institute of Medicine Study.--
(1) In general.--Not later than 2 years after date of
enactment of this Act, the Institute of Medicine of the
National Academy of Sciences shall complete a study of the
causal link between asbestos exposure and other cancers,
including colorectal, laryngeal, esophageal, pharyngeal, and
stomach cancers, except for mesothelioma and lung cancers. The
Institute of Medicine shall issue a report on its findings on
causation, which shall be transmitted to Congress, the Court of
Federal Claims, and the Medical Advisory Committee. The Court
of Federal Claims and the Medical Advisory Committee may
consider the results of the report for purposes of determining
whether asbestos exposure is a substantial contributing factor
under section 121(d)(6)(B).
(2) Subsequent studies.--If the Court of Federal Claims has
evidence that there have been advancements in science that
would require additional study, the Court may request that the
Institute of Medicine conduct a subsequent study to determine
if asbestos exposure is a cause of other cancers.
(f) Exceptional Medical Claims.--
(1) In general.--A claimant who does not meet the medical
criteria requirements under this section may apply for
designation of the claim as an exceptional medical claim.
(2) Application.--When submitting an application for review
of an exceptional medical claim, the claimant shall--
(A) state that the claim does not meet the medical
criteria requirements under this section; or
(B) seek designation as an exceptional medical
claim within 60 days after a determination that the
claim is ineligible solely for failure to meet the
medical criteria requirements under subsection (d).
(3) Report of physician.--
(A) In general.--Any claimant applying for
designation of a claim as an exceptional medical claim
shall support an application filed under paragraph (1)
with a report from a physician meeting the requirements
of this section.
(B) Contents.--A report filed under subparagraph
(A) shall include--
(i) a complete review of the claimant's
medical history and current condition;
(ii) such additional material by way of
analysis and documentation as shall be
prescribed by rule of the Court of Federal
Claims; and
(iii) a detailed explanation as to why the
claim meets the requirements of paragraph
(4)(B).
(4) Review.--
(A) In general.--The Court of Federal Claims shall
refer all applications and supporting documentation
submitted under paragraph (2) to the Medical Advisory
Committee 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.--The Medical Advisory
Committee may request additional reasonable testing to
support the claimant's application.
(D) CT scan.--A claimant may submit a CT Scan in
addition to an x-ray.
(5) Approval.--
(A) In general.--If the Medical Advisory Committee
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 may be eligible to seek
compensation.
(B) Referral.--Upon the issuance of a certificate
under subparagraph (A), the Medical Advisory Committee
shall submit the claim to a special asbestos master,
who shall proceed to determine 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 chief judge of the Court of Federal Claims
shall promulgate rules governing the procedures for seeking
designation of a claim as an exceptional medical claim.
(8) Libby, montana.--All claims filed by Libby, Montana
claimants shall be designated as exceptional medical claims and
referred to the Medical Advisory Committee for review. In
reviewing the medical evidence submitted by a Libby, Montana
claimant in support of that claim, and before making an
eligibility determination for a Libby, Montana claimant, the
Medical Advisory Committee shall review the current medical and
scientific literature relating to the study, diagnosis, and
treatment of asbestos-related diseases resulting from exposure
to asbestos and other fibers found in and around Libby,
Montana, including public health assessments prepared by the
Agency for Toxic Substances and Disease Registry for the Libby
Asbestos Site. The Medical Advisory Committee 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, when making a
determination of eligibility and designating the disease
category.
Subtitle D--Awards
SEC. 131. AMOUNT.
(a) In General.--An asbestos claimant who meets the requirements of
section 113 shall be entitled to an award in an amount determined by
reference to the benefit table contained in subsection (b).
(b) Benefit Table.--
(1) In general.--An asbestos claimant with an eligible
disease or condition established in accordance with section
<DELETED>124</DELETED> 121, <DELETED>other than an injury
described in paragraph (2),</DELETED> shall be eligible for an
award according to the following schedule:
<DELETED>
Level Scheduled Condition or Disease Scheduled Value
I Asymptomatic Exposure $0
II Asbestosis/Pleural Disease A $0
III Asbestosis/Pleural Disease B $40,000
IV Severe Asbestosis $400,000
V Other Cancer $200,000
VI Lung Cancer I $0 or $50,000
VII Lung Cancer II $100,000 or
$400,000
VIII Mesothelioma $750,000
<DELETED> (2) Scheduled values for levels vi and vii.--
</DELETED>
<DELETED> (A) Definition.--In this paragraph, the
term ``nonsmoker'' means a claimant who--</DELETED>
<DELETED> (i) never smoked; or</DELETED>
<DELETED> (ii) has not smoked during any
portion of the 12-year period preceding the
diagnosis of the lung cancer.</DELETED>
<DELETED> (B) Scheduled values.--In accordance with
subsection (a), a claimant--</DELETED>
<DELETED> (i) who is a nonsmoker shall
receive--</DELETED>
<DELETED> (I) $50,000 for Level VI;
and</DELETED>
<DELETED> (II) $400,000 for Level
VII; and</DELETED>
<DELETED> (ii) who is not a nonsmoker shall
receive--</DELETED>
<DELETED> (I) $0 for Level VI;
and</DELETED>
<DELETED> (II) $100,000 for Level
VII.</DELETED>
Level Scheduled Condition or Disease Scheduled Value
I Asbestosis/Pleural Disease A Medical Monitoring
II Mixed Disease With Impairment $20,000
III Asbestosis/Pleural Disease B $75,000
IV Severe Asbestosis $300,000
V Disabling Asbestosis $750,000
VI Other Cancer $150,000
VII Lung Cancer One individual evaluation;
smokers receive between $25,000-
$75,000;
ex-smokers receive between
$75,000-$225,000;
nonsmokers receive between
$225,000-$600,000
VIII Lung Cancer With Pleural smokers receive between $125,000-
Disease $225,000;
ex-smokers receive between
$400,000-$600,000;
nonsmokers receive between
$609,000-$1,000,000
IX Lung Cancer With Asbestosis smokers receive $300,000-
$400,000;
ex-smokers receive between
$550,000-$850,000;
nonsmokers receive between
$800,000-$1,000,000
X Mesothelioma $1,000,000
(2) Definitions.--In this section--
(A) the term ``nonsmoker'' means a claimant who
never smoked; 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) Values within levels relating to lung cancer.--
(A) In general.--In setting values for levels
relating to lung cancer, the Administrator shall
develop a matrix of classes for each of Levels VII,
VIII, and IX based on--
(i) the smoking history of the claimant
including whether the claimant currently or in
the past smoked tobacco products, the duration
of smoking, pack years, and whether the
claimant has quit smoking and for how long;
(ii) the age of the claimant at diagnosis
with claim values increased proportionately for
claimants who are younger than the average life
span and reduced for those who are older; and
(iii) the level and duration of asbestos
exposure with those receiving the highest total
dose (level x duration) receiving greater
values.
(B) Determination of exposure.--Levels of exposure
shall be based on research in the fields of
epidemiology and industrial hygiene.
<DELETED>(3) </DELETED>(4) Medical monitoring.--An asbestos
claimant with asymptomatic exposure <DELETED>or asbestosis/
pleural disease A</DELETED>, based on the criteria under
section <DELETED>124(b)(1)</DELETED> 121(d)(1), shall only be
eligible for medical monitoring reimbursement.
(5) Cost-of-living adjustment.--
(A) In general.--Beginning January 1, 2006, 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 2004.
(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 an asbestos
claim 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 111(c).
(b) Costs.--Reimbursable medical monitoring costs shall include the
costs of a claimant not covered by health insurance for 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. PAYMENTS.
(a) Structured Payments.--
(1) In general.--An asbestos claimant who is entitled to an
award <DELETED>shall </DELETED>should receive the amount of the
award through structured payments from the Fund, made over a
period of <DELETED>not less than </DELETED>3 years, and in no
event more than 4 years after the date of final adjudication of
the claim.
(2) Accelerated payments.--The Administrator shall develop
guidelines to provide for accelerated payments to asbestos
claimants who are mesothelioma victims and who are alive on the
date on which the administrator receives notice of the
eligibility of the claimant. Such payments shall be credited
against the first regular payment under the structured payment
plan for the claimant.
(3) Expedited payments.--The Administrator shall develop
guidelines to provide for expedited payments to asbestos
claimants in cases of exigent circumstances or extreme hardship
caused by asbestos-related injury.
(4) Annuity.--An asbestos claimant may elect to receive any
payments to which they are entitled under this title in the
form of an annuity.
(b) Limitation on Transferability.--An asbestos claim 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.
<DELETED>(d) Treatment for Internal Revenue Purposes</DELETED>.--
<DELETED>All amounts of an award received under this subtitle shall be
deemed to be compensation for personal physical injuries or physical
sickness under section 104 of the Internal Revenue Code of 1986.
</DELETED> (e)</DELETED> (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).
SEC. 134. REDUCTION IN BENEFIT PAYMENTS FOR COLLATERAL SOURCES.
(a) In General.--The amount of an award otherwise available to an
asbestos claimant under this title shall be reduced by the amount of
collateral source compensation <DELETED>that the claimant received, or
is entitled to receive, for the asbestos-related injury that is the
subject of the compensation</DELETED>.
(b) Exclusions.--In no case shall statutory benefits under workers'
compensation laws and veterans benefits programs be deemed as
collateral source compensation for purposes of this section.
Subtitle E--En Banc Review
SEC. 141. EN BANC REVIEW.
(a) In General.--
(1) En banc panels.--The chief judge of the
<DELETED>Asbestos Court</DELETED> Court of Federal Claims
shall--
(A) establish en banc panels to carry out this
subtitle; and
(B) assign 3 judges of the Asbestos Court to each
en banc panel.
<DELETED> (2) Random assignment of panels.--In carrying out
paragraph (1), the chief judge shall--</DELETED>
<DELETED> (A) except as necessary to effectuate
subparagraph (B), assign judges to panels randomly;
and</DELETED>
<DELETED> (B) assign appeals to panels in a manner
that results in no judge reviewing a decision made by
that judge.</DELETED>
<DELETED> (3) Filing of appeal.--Not later than 30 days
after receiving notice of the decision of a judge under section
114, a claimant may file an appeal for review with an en banc
panel of the Asbestos Court.</DELETED>
(2) United states court of asbestos claims.--Each panel
established under this subsection may be referred to as the
``United States Court of Asbestos Claims''.
(3) Random assignment of panels.--In carrying out paragraph
(1), the chief judge shall assign judges to panels randomly.
(4) Filing of appeal.--Not later than 30 days after
receiving notice of the decision of a panel of special asbestos
masters under section 114, a claimant may file an appeal with
the United States Court of Asbestos Claims.
<DELETED> (b) De Novo Review.--An Asbestos Court panel shall provide
a de novo review of the magistrate's determination and the judge's
decision.</DELETED>
(b) Review of Decision of Special Asbestos Master.--
(1) In general.--The United States Court of Asbestos Claims
may--
(A) uphold the findings of fact and conclusions of
law of the special asbestos master and sustain the
special asbestos master's decision;
(B) set aside any findings of fact or conclusion of
law of the special asbestos master found to be
arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law and issue its own
findings of fact and conclusions of law; or
(C) remand the petition to the special asbestos
master for further action in accordance with the
direction of the United States Court of Asbestos
Claims.
(2) Remands.--The United States Court of Asbestos Claims
may allow not more than 30 days for remands under paragraph
(1)(C).
(3) Final decision.--If the United States Court of Asbestos
Claims makes a final decision after review as provided under
paragraph (1) (A) or (B), the Court shall notify the
Administrator to award the claimant an amount as determined by
the United States Court of Asbestos Claims.
(4) Claim extinguished.--The acceptance of payment of an
award as provided under this subsection shall extinguish all
claims related to such payment.
(c) Representation of the Administrator.--The Administrator may
appoint counsel to represent the interests of the Fund and the
Administrator in all proceedings before a panel, including oral
arguments and the submission of briefs.
(d) Federal Rules of Appellate Procedure.--<DELETED>An Asbestos
Court</DELETED> A Court of Federal Claims panel shall apply the Federal
Rules of Appellate Procedures to all proceedings before the panel.
(e) Decision of Panel.--<DELETED>An Asbestos Court</DELETED> A
Court of Federal Claims panel shall enter a final decision on an appeal
on the earlier date occurring--
(1) not later than 30 days after the date of the conclusion
of oral arguments; or
(2) not later than 60 days after an appeal is filed under
this section.
TITLE II--ASBESTOS INJURY CLAIMS RESOLUTION FUND
Subtitle A--Asbestos Defendants Funding Allocation
SEC. 201. DEFINITIONS.
In this subtitle, the following definitions shall apply:
(1) Affiliated group.--The term ``affiliated group''--
(A) means a defendant participant that is an
ultimate parent and any person whose entire beneficial
interest is directly or indirectly owned by that
ultimate parent on the date of enactment of this Act;
and
(B) shall not include any person that is a debtor
or any direct or indirect majority-owned subsidiary of
a debtor.
(2) Class action trust.--The term ``class action trust''
means a trust or similar entity established to hold assets for
the payment of asbestos claims asserted against a debtor or
participating defendant, under a settlement that--
(A) is a settlement of class action claims under
rule 23 of the Federal Rules of Civil Procedure; and
(B) has been approved by a final judgment of a
United States District Court before the date of
enactment of this Act.
<DELETED>(2)</DELETED> (3) Debtor.--The term ``debtor''--
(A) means--
(i) a person that is subject to a case
pending under a chapter of title 11, United
States Code, on the date of enactment of this
Act or at any time during the 1-year period
immediately preceding that date, irrespective
of whether the debtor's case under that title
has been dismissed; and
(ii) all of the direct or indirect
majority-owned subsidiaries of a person
described under clause (i), regardless of
whether any such majority-owned subsidiary has
a case pending under title 11, United States
Code; and
(B) shall not include an entity--
(i) subject to chapter 7 of title 11,
United States Code, if a final decree closing
the estate shall have been entered before the
date of enactment of this Act; or
(ii) subject to chapter 11 of title 11,
United States Code, if a plan of reorganization
for such entity shall have been confirmed by a
duly entered order or judgment of a court that
is no longer subject to any appeal or judicial
review.
<DELETED>(3)</DELETED> (4) Indemnifiable cost.--The term
``indemnifiable cost'' means a cost, expense, debt, judgment,
or settlement incurred with respect to an asbestos claim that,
at any time before December 31, 2002, was or could have been
subject to indemnification, contribution, surety, or guaranty.
<DELETED>(4)</DELETED> (5) Indemnitee.--The term
``indemnitee'' means a person against whom any asbestos claim
has been asserted before December 31, 2002, who has received
from any other person, or on whose behalf a sum has been paid
by such other person to any third person, in settlement,
judgment, defense, or indemnity in connection with an alleged
duty with respect to the defense or indemnification of such
person concerning that asbestos claim, other than under a
policy of insurance or reinsurance.
<DELETED>(5)</DELETED> (6) Indemnitor.--The term
``indemnitor'' means a person who has paid under a written
agreement at any time before December 31, 2002, a sum in
settlement, judgment, defense, or indemnity to or on behalf of
any person defending against an asbestos claim, in connection
with an alleged duty with respect to the defense or
indemnification of such person concerning that asbestos claim,
except that payments by an insurer or reinsurer under a
contract of insurance or reinsurance shall not make the insurer
or reinsurer an indemnitor for purposes of this subtitle.
<DELETED>(6)</DELETED> (7) Prior asbestos expenditures.--
The term ``prior asbestos expenditures''--
(A) means the gross total amount paid by or on
behalf of a person at any time before December 31,
2002, in settlement, judgment, defense, or indemnity
costs related to all asbestos claims against that
person;
(B) includes payments made by insurance carriers to
or for the benefit of such person or on such person's
behalf with respect to such asbestos claims, except as
provided in section 204(g);
(C) shall not include any payment made by a person
in connection with or as a result of changes in
insurance reserves required by contract or any
activities or disputes 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 Federal Employers' Liability Act, including
settlement, judgment, defense, or indemnity costs
associated with these claims.
<DELETED>(7)</DELETED> (8) Trust.--The term ``trust'' means
any person formed under section 524(g) of title 11, United
States Code, or formed under any plan under section 1129 of
title 11, United States Code, <DELETED>for any purpose,
including administering and paying asbestos claims</DELETED> in
whole or in part to provide compensation for asbestos claims.
<DELETED>(8)</DELETED> (9) Ultimate parent.--The term
``ultimate parent'' means a person--
(A) that owned, as of December 31, 2002, the entire
beneficial interest, directly or indirectly, of at
least 1 other person; and
(B) whose entire beneficial interest was not owned,
on December 31, 2002, directly or indirectly, by any
other single person.
SEC. 202. AUTHORITY AND TIERS.
(a) Assessment.--
(1) In general.--The Administrator shall assess from
defendant participants contributions to the Fund in accordance
with this section based on tiers and subtiers assigned to
defendant participants.
(2) Aggregate contribution level.--The total contribution
required of all defendant participants over the life of the
Fund shall be equal to <DELETED>$45,000,000,000
</DELETED>$52,000,000,000. The Administrator shall have the
authority to allocate the contributions assessed from the
defendant participants among the tiers.
(b) Tier I.--The Administrator shall assign to Tier I 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.--In this subsection, the term ``bankrupt
business entity'' means a person that is not a natural person
that--
(A) filed under chapter 11, of title 11, United
States Code, before January 1, 2003;
(B) has not confirmed a plan of reorganization as
of the date of enactment of this Act; and
<DELETED> (C) the Chief Executive Officer, Chief
Financial Officer, or Chief Legal Officer of that
business entity certifies in writing to the bankruptcy
court presiding over the business entity's case, that
asbestos liability was neither the sole nor
precipitating cause for the filing under chapter
11.</DELETED>
(C) 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
of the effective date of this Act, which motion 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 that asbestos liability was not
the sole or precipitating cause of the entity's
chapter 11 filing. Notice of such motion shall
be as directed by the bankruptcy court and the
hearing shall be limited to consideration of
the question of whether or not asbestos
liability was the sole or precipitating cause
of the entity's chapter 11 filing. The
bankruptcy court shall hold a hearing and make
its determination with respect to the motion
within 60 days after the date the motion is
filed. In making its determination, the
bankruptcy court shall take into account the
affidavits, public statements, and securities
filings, and other information, if any,
submitted by the entity and all other facts and
circumstances presented by an objecting party.
(iii) Judicial review.--Any review of this
determination must be an expedited appeal and
limited to whether the decision was against the
weight of the evidence.
<DELETED>(2)</DELETED> (3) Proceeding with reorganization
plan.--A bankrupt business entity 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, notwithstanding any other provisions of
this Act, if--
(A) the bankruptcy court presiding over the chapter
11 case of the bankrupt business entity determines
that--
(i) confirmation is necessary to permit the
reorganization of that entity and assure that
all creditors and that entity are treated
fairly and equitably; and
(ii) confirmation is clearly favored by the
balance of the equities; and
(B) an order confirming the plan of reorganization
is entered by the bankruptcy court within 9 months
after the date of enactment of this Act or such longer
period of time approved by the bankruptcy court for
cause shown.
<DELETED>(3)</DELETED> (4) Applicability.--If the
bankruptcy court does not make the required determination, or
if an order confirming the plan is not entered within 9 months
after the effective date of this Act or such longer period of
time approved by the bankruptcy court for cause shown, the
provisions of the 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.
<DELETED>(4)</DELETED> (5) Offsets.--
(A) Payments by insurers.--To the extent that a
bankrupt business entity or debtor successfully
confirms a plan of reorganization, including a trust
under section 524(g) of title 11, United States Code,
and channeling injunction that involves payments by
insurers who are otherwise subject to this Act, an
insurer who makes payments to the trust under section
524(g) of title 11, United States Code, 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 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 sections 202(b),
204(b), and 204(g), persons or affiliated groups shall be assigned to
Tier II, III, IV, V, or VI according to the prior asbestos expenditures
paid by such persons or affiliated groups as follows:
(1) Tier II: $75,000,000 or greater.
(2) Tier III: $50,000,000 or greater, but less than
$75,000,000.
(3) Tier IV: $10,000,000 or greater, but less than
$50,000,000.
(4) Tier V: $5,000,000 or greater, but less than
$10,000,000.
(5) Tier VI: $1,000,000 or greater, but less than
$5,000,000.
(e) Assignments and Costs.--
(1) Permanent assignment.--Subject to section 204(d), after
the Administrator has assigned a person or affiliated group to
a tier under this section, such person or affiliated group
shall remain in that tier 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 from bankruptcy;
(C) the confirmation of a plan of reorganization;
or
(D) the sale or transfer of assets to any other
person or affiliated group.
(2) Costs.--The payment of contributions 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 that
title 11 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.--Any plan of reorganization with
respect to any debtor assigned to Tier I and any agreement,
understanding, or undertaking by any such debtor or any third party
with respect to the treatment of any asbestos claim filed before the
date of enactment of this Act and subject to confirmation of a plan
under chapter 11 of title 11, United States Code, shall be superseded
in their entirety by this Act. Any such plan of reorganization,
agreement, understanding, or undertaking by any debtor or any third
party shall be of no force or effect, and no person shall have any
rights or claims with respect to any of the foregoing.
SEC. 203. SUBTIER ASSESSMENTS.
(a) In General.--
(1) Assessments.--Except as provided under subsections (a),
(b), (d), (f), and (g) of section 204, the Administrator shall
assess contributions to persons or affiliated groups within
Tiers I through VII 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 section 13(a)(2) of the
Securities Exchange Act of 1934 (15 U.S.C. 78m(a)(2))
for the most recent fiscal year ending on or before
December 31, 2002. If the defendant participant does
not file reports with the Securities and Exchange
Commission, revenues shall be the amount that the
defendant participant 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
contribution of that defendant participant under this
subtitle.
(C) Privately held companies.--If the defendant
participant is not required to file an earnings report
with the Securities and Exchange Commission, revenues
shall be the amount that the defendant participant
would have reported as revenues in the event that it
had been required to file the report described under
subparagraph (A).
(D) 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
assigned to 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 and 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
and 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.--Except as provided under subsections (a),
(b), (d), (f), and (g) of section 204, the Administrator shall
assign each debtor in Tier I to subtiers. Each debtor or shall
make contributions 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 assigned to Subtier 1.
(B) Assignment.--Each debtor assigned to Subtier 1
shall make annual payments based on a percentage of its
2002 revenues.
(C) Payment.--Each debtor assigned to Subtier 1
shall pay on an annual basis the following with respect
to the year of the establishment of the Fund:
(i) Years 1 through 5, <DELETED>1.5005</DELETED>
1.5184 percent of the debtor's 2002 revenues.
(ii) Years 6 through 8, <DELETED>1.3504</DELETED>
1.3666 percent of the debtor's 2002 revenues.
(iii) Years 9 through 11, <DELETED>1.2154</DELETED>
1.2147 percent of the debtor's 2002 revenues.
(iv) Years 12 through 14, <DELETED>1.0938</DELETED>
1.0629 percent of the debtor's 2002 revenues.
(v) Years 15 through 17, <DELETED>.9845</DELETED>
.9111 percent of the debtor's 2002 revenues.
(vi) Years 18 through 20, <DELETED>.8860</DELETED>
.7592 percent of the debtor's 2002 revenues.
(vii) Years 21 through
<DELETED>23</DELETED>26, <DELETED>.7974</DELETED>
.6074 percent of the debtor's 2002 revenues.
<DELETED>(viii) Years 24 through 26, .7177
percent of the debtor's 2002 revenues.
</DELETED> (ix)</DELETED> (viii) Year 27,
<DELETED>.1794</DELETED> .1518 percent of the
debtor's 2002 revenues.
(3) Subtier 2.--
(A) In general.--Notwithstanding paragraph (2), all
persons that are debtors that have no material
continuing business operations but hold cash or other
assets that have been allocated or earmarked for
asbestos settlements shall be assigned to Subtier 2.
(B) Assignment of assets.--Not later than 30 days
after the date of enactment of this Act, each person
assigned to Subtier 2 shall assign all of its assets to
the Fund.
(4) Subtier 3.--
(A) In general.--Notwithstanding paragraph (2), all
persons that are debtors other than those included in
Subtier 2, which have no material continuing business
operations and no cash or other assets allocated or
earmarked for the settlement of any asbestos claim,
shall be assigned to Subtier 3.
(B) Assignment of unencumbered assets.--Not later
than 30 days after the date of enactment of this Act,
each person assigned to Subtier 3 shall contribute an
amount equal to 50 percent of its total unencumbered
assets.
(C) Calculation of unencumbered assets.--
Unencumbered assets shall be calculated as the Subtier
3 person's total assets, excluding insurance related
assets, less--
(i) all allowable administrative expenses;
(ii) allowed priority claims under section
507 of title 11, United States Code; and
(iii) allowed secured claims.
(5) Class action trust.--The assets of any class action
trust that has been established in respect of the liabilities
for asbestos claims of any person included within a debtor and
affiliated group that has been assigned to Tier I (exclusive of
any assets needed to pay previously incurred expenses and
asbestos claims reduced to a final order or judgment within the
meaning of section 403(d)(1) before the date of enactment of
this Act) shall be transferred to the Fund not later than 6
months after the date of enactment of this Act.
(c) Tier II Subtiers.--
(1) In general.--The Administrator shall assign each person
or affiliated group in Tier II to 1 of 5 subtiers, 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 assigned to Subtier 1;
(B) those persons or affiliated groups with the
next highest revenues assigned to Subtier 2;
(C) those persons or affiliated groups with the
lowest revenues assigned to Subtier 5;
(D) those persons or affiliated groups with the
next lowest revenues assigned to Subtier 4; and
(E) those persons or affiliated groups remaining
assigned to Subtier 3.
(2) Payment.--Each person or affiliated group within an
assigned subtier shall pay, on an annual basis, the following:
(A) Subtier 1: $25,000,000.
(B) Subtier 2: $22,500,000.
(C) Subtier 3: $20,000,000.
(D) Subtier 4: $17,500,000.
(E) Subtier 5: $15,000,000.
(d) Tier III Subtiers.--
(1) In general.--The Administrator shall assign each person
or affiliated group in Tier III to 1 of 5 subtiers, 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 assigned to Subtier 1;
(B) those persons or affiliated groups with the
next highest revenues assigned to Subtier 2;
(C) those persons or affiliated groups with the
lowest revenues assigned to Subtier 5;
(D) those persons or affiliated groups with the
next lowest revenues assigned to Subtier 4; and
(E) those persons or affiliated groups remaining
assigned to Subtier 3.
(2) Payment.--Each person or affiliated group within an
assigned subtier shall pay, on an annual basis, the following:
(A) Subtier 1: $15,000,000.
(B) Subtier 2: $12,500,000.
(C) Subtier 3: $10,000,000.
(D) Subtier 4: $7,500,000.
(E) Subtier 5: $5,000,000.
(e) Tier IV Subtiers.--
(1) In general.--The Administrator shall assign each person
or affiliated group in Tier IV to 1 of 4 subtiers, 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
assigned to Subtier 2 and the rest in Subtier 3.
(2) Payment.--Each person or affiliated group within an
assigned subtier shall pay, on an annual basis, the following:
(A) Subtier 1: $3,500,000.
(B) Subtier 2: $2,250,000.
(C) Subtier 3: $1,500,000.
(D) Subtier 4: $500,000.
(f) Tier V Subtiers.--
(1) In general.--The Administrator shall assign each person
or affiliated group in Tier V to 1 of 3 subtiers, 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 an
assigned subtier shall pay, on an annual basis, the following:
(A) Subtier 1: $1,000,000.
(B) Subtier 2: $500,000.
(C) <DELETED>SUBTIER</DELETED> Subtier 3: $200,000.
(g) Tier VI Subtiers.--
(1) In general.--The Administrator shall assign each person
or affiliated group in Tier VI to 1 of 3 Subtiers, 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 an
assigned subtier shall pay, on an annual basis, the following:
(A) Subtier 1: $500,000.
(B) Subtier 2: $250,000.
(C) Subtier 3: $100,000.
(h) Tier VII.--
(1) In general.--Notwithstanding any assignment to Tiers
II, III, IV, V, and VI based on prior asbestos expenditures
under section 204(d), a person shall be assigned to Tier VII if
the person--
(A) is subject to asbestos claims brought under the
Federal Employers' Liability Act (45 U.S.C. 51 et seq.)
as a result of operations as a common carrier by
railroad; and
(B) have paid not less than $5,000,000 in
settlement, judgment, defense, or indemnity costs
relating to such claims.
(2) Additional amount.--The contribution requirement for
persons assigned to Tier VII shall be in addition to any
applicable contribution requirement that such person may be
assessed under Tiers II through VI.
(3) Subtier 1.--The Administrator shall assign each person
or affiliated group in Tier VII with revenues of not less than
$5,000,000,000 to Subtier 1 and shall require each such person
or affiliated group to make annual payments of $10,000,000 into
the Fund.
(4) Subtier 2.--The Administrator shall assign each person
or affiliated group in Tier VII with revenues of less than
$5,000,000,000, but not less than $3,000,000,000 to Subtier 2,
and shall require each such person or affiliated group to make
annual payments of $5,000,000 into the Fund.
(5) Subtier 3.--The Administrator shall assign each person
or affiliated group in Tier VII with revenues of less than
$3,000,000,000, but not less than $500,000,000 to Subtier 3,
and shall require each such person or affiliated group to make
annual payments of $500,000 into 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 Federal
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 contribution
amount under this provision.
SEC. 204. ASSESSMENT ADMINISTRATION.
(a) Reduction Adjustments.--Subject to section 223(f), <DELETED>The</DELETED>
the Administrator shall assess contributions based on amounts provided
under this subtitle for each person or affiliated group within Tiers
II, III, IV, V, VI, and VII for the first 5 years of the operation of
the Fund. Beginning in year 6, and thereafter, the Administrator shall
reduce the contribution amount for each defendant participant in each
of these tiers in proportion to the reductions in the schedule under
subsection (h)(2).
(b) Small Business Exemption.--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
contribution requirement under this subtitle.
(c) Procedures.--The Administrator shall prescribe procedures on
how contributions assessed under this subtitle are to be paid.
(d) Exceptions.--
(1) In general.--Under expedited procedures established by
the Administrator, a defendant participant may seek adjustment
of the amount of its contribution 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. Such
determinations shall not prejudice the integrity of the Fund
and shall not be subject to judicial review.
(2) Financial hardship adjustments.--
(A) In general.--A defendant may apply for an
adjustment based on financial hardship at any time
during the life of the Fund and may qualify for such
adjustment by demonstrating that the amount of its
contribution under the statutory allocation would
constitute a severe financial hardship.
(B) Term.--A hardship adjustment under this
subsection shall have a term of 3 years.
(C) Renewal.--<DELETED>A</DELETED> After an initial
hardship adjustment is granted under this paragraph, a
defendant may renew its hardship adjustment by
demonstrating that it remains justified.
(D) Limitation.--The Administrator may not grant
hardship adjustments under this subsection in any year
that exceed, in the aggregate, <DELETED>3</DELETED> 6
percent of the total annual contributions required of
all defendant participants.
(E) Reinstatement.--
(i) In general.--Following the expiration
of the hardship adjustment period provided for
under this section and during the mandatory
funding period, the Administrator shall
annually determine whether there has been a
material change in the financial condition of
the defendant such that the Administrator may,
consistent with the policies and legislative
intent underlying this Act, reinstate under
terms and conditions established by the
Administrator any part of all of the
defendant's contribution under the statutory
allocation that was not paid during the
hardship adjustment term.
(3) Inequity adjustments.--
<DELETED> (A) In general.--A defendant may qualify
for an adjustment based on inequity by demonstrating
that the amount of its contribution under the statutory
allocation is exceptionally inequitable when measured
against the amount of the likely cost to the defendant
of its future liability in the tort system in the
absence of the Fund.</DELETED>
(A) In general.--A defendant--
(i) may qualify for an adjustment based on
inequity by demonstrating that the amount of
contribution of the defendant under the
statutory allocation is exceptionally
inequitable--
(I) when measured against the
amount of the likely cost to the
defendant of its future liability in
the tort system in the absence of the
Fund;
(II) when compared to the median
contribution rate for all defendants in
the same tier; or
(III) when measured against the
percentage of the prior asbestos
expenditures of the defendant that were
incurred with respect to claims that
neither resulted in an adverse judgment
against the defendant, nor were the
subject of a settlement that required a
payment to a plaintiff by or on behalf
of that defendant; and
(ii) shall qualify for a two-tier main tier
and a two-tier sub-tier adjustment reducing the
defendant's contribution 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. 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 prior to the date
of enactment of this Act.
(B) Contribution rate.--For purposes of
subparagraph (A), the contribution rate of a defendant
is the contribution amount of the defendant as a
percentage of such defendant's gross revenues for the
year ending December 31, 2002.
<DELETED>(B)</DELETED> (C) Term.--Subject to the
annual availability of funds in the Orphan Share
Reserve Account established under section
223(<DELETED>e</DELETED> h), an inequity adjustment
granted by the Administrator under this subsection
shall remain in effect <DELETED>for the life of the
Fund</DELETED> for a term of 3 years.
<DELETED>(C)</DELETED> (D) Limitation.--The
Administrator may grant inequity adjustments only to
the extent that--
(i) the financial condition of the Fund is
sufficient to accommodate such adjustments;
(ii) the Orphan Share Reserve Account is
sufficient to cover such adjustments for that
year; and
(iii) such adjustments do not exceed
<DELETED>2</DELETED> 4 percent of the total
annual contributions required of all defendant
participants.
(E) Renewal.--A defendant 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 mandatory funding period of
the Fund, 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's
contribution 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 contribution
requirements of the defendant 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 to pay
any part or all of amounts not contributed due
to the inequity adjustment on such terms and
conditions as established by the Administrator.
(4) Advisory panels.--
(A) Appointment.--The Administrator shall appoint a
Financial Hardship Adjustment Panel and an Inequity
Adjustment Panel to advise the Administrator in
carrying out this subsection.
(B) Membership.--The membership of the panels
appointed under subparagraph (A) may overlap.
(C) Coordination.--The panels appointed under
subparagraph (A) shall coordinate their deliberations
and recommendations.
(e) Limitation on Liability.--The liability of each defendant
participant to contribute to the Fund shall be limited to the payment
obligations under <DELETED>this subtitle</DELETED> this Act, and,
except as provided in subsection (f), no defendant participant shall
have any liability for the payment obligations of any other defendant
participant.
(f) Consolidation of Contributions.--
(1) In general.--For purposes of determining the
contribution levels of defendant participants, any affiliated
group including 1 or more defendant participants may
irrevocably elect, as part of the submission to be made under
subsection (i), to report on a consolidated basis all of the
information necessary to determine the contribution level under
this subtitle and contribute 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 without
limitation with respect to the assessment of a single
annual contribution under this subtitle for the entire
affiliated group;
(B) the ultimate parent of the affiliated group
shall prepare and submit the 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 contribution assessed against
the affiliated group, except that, if the ultimate
parent does not pay when due any contribution for the
affiliated group, the Administrator shall have the
right to seek payment of all or any portion of the
entire amount due 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.
(g) Determination of Prior Asbestos Expenditures.--
(1) In general.--For purposes of determining a defendant
participant's prior asbestos expenditure, 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 expenditure, rather than the indemnitee's prior
asbestos expenditure, 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
expenditure 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, any indemnifiable
cost related to the asbestos claim; 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.
(h) Minimum Contributions.--Minimum aggregate contributions of
defendant participants to the Fund in any calendar year shall be as
follows:
(1) For each of the first 5 years of the Fund, the
aggregate contributions of defendant participants to the fund
shall be at least $2,500,000,000.
(2) After the 5th year, the minimum aggregate contribution
shall be reduced as follows:
(A) For years 6 through 8, $2,250,000,000.
(B) For years 9 through 11, $2,000,000,000.
(C) For years 12 through 14, $1,750,000,000.
(D) For years 15 through 17, $1,500,000,000.
(E) For years 18 through 20, $1,250,000,000.
(F) For years 21 through 26, $1,000,000,000.
(G) For year 27, $250,000,000.
(i) Procedures To Determine Fund Contribution Assessments.--
(1) Notice to participants.--Not later than 60 days after
the initial appointment of the Administrator, 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 contribution to the Fund; and
(B) publish in the Federal Register a notice
requiring any person who may be a defendant participant
(as determined by criteria outlined in the notice) to
submit such information.
(2) Response required.--
(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
Administrator with all the information requested in the
notice at 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.
(3) Notice of initial determination.--
(A) In general.--Not later than 60 days after
receiving a response under paragraph (2), the
Administrator shall send the participant a notice of
initial determination assessing a contribution to the
Fund, which shall be based on the information received
from the participant in response to the Administrator's
request for information.
(B) No response; incomplete response.--If no
response is received from the participant, or if the
response is incomplete, the initial determination
assessing a contribution from the participant shall be
based on the best information available to the
Administrator.
<DELETED> (4) Confidentiality.--Any person may designate any
information submitted under this subsection as confidential
commercial or financial information for purposes of section 552
of title 5, United States Code (commonly referred to as the
Freedom of Information Act). The Administrator shall adopt
procedures for designating such information as
confidential.</DELETED>
(4) Application of foia.--
(A) 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
Injury Claims Resolution.
(B) Confidentiality.--Any person may designate any
record submitted under this subsection as a
confidential commercial or financial record for
purposes of section 552 of title 5, United States Code.
The Administrator shall adopt procedures for
designating such records as confidential.
(5) New information.--
(A) Existing participant.--The Administrator shall
adopt procedures for revising initial assessments based
on new information received after the initial
assessments are calculated.
(B) Additional participant.--If the Administrator,
at any time, receives information that an additional
person may qualify as a participant, the Administrator
shall require such person to submit information
necessary to determine whether an initial determination
assessing a contribution from that person should be
issued, in accordance with the requirements of this
subsection.
(6) Payment schedule.--Any initial determination issued
under this subsection may allow for periodic payments, if the
full annual amount assessed is paid each year. Each participant
shall pay its contribution to the Fund in the amount specified
at the initial determination of assessment from the
Administrator, according to the schedule specified in the
initial determination.
(7) 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.
(8) Rehearing.--A participant has a right to obtain
rehearing of the Administrator's initial determination under
section 202.
<DELETED>Subtitle B--Asbestos Insurers Commission</DELETED>
<DELETED>SEC. 211. ESTABLISHMENT OF ASBESTOS INSURERS
COMMISSION.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (b) Membership.--</DELETED>
<DELETED> (1) Appointment.--The Commission shall be composed
of 5 members who shall be appointed by the President, after
consultation with--</DELETED>
<DELETED> (A) the majority leader of the
Senate;</DELETED>
<DELETED> (B) the minority leader of the
Senate;</DELETED>
<DELETED> (C) the Speaker of the House of
Representatives; and</DELETED>
<DELETED> (D) the minority leader of the House of
Representatives.</DELETED>
<DELETED> (2) Qualifications.--</DELETED>
<DELETED> (A) Expertise.--Members of the Commission
shall have sufficient expertise to fulfill their
responsibilities under this subtitle.</DELETED>
<DELETED> (B) Conflict of interest.--No member of
the Commission appointed under paragraph (1) may be an
employee, former employee, or shareholder of any
insurer participant, or an immediate family member of
any such individual.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (3) Date.--The appointments of the members of the
Commission shall be made not later than 60 days after the date
of enactment of this Act.</DELETED>
<DELETED> (4) Period of appointment.--Members shall be
appointed for the life of the Commission.</DELETED>
<DELETED> (5) Vacancies.--Any vacancy in the Commission
shall be filled in the same manner as the original
appointment.</DELETED>
<DELETED> (6) Chairman.--The Commission shall select a
Chairman from among its members.</DELETED>
<DELETED> (c) Meetings.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (2) Subsequent meetings.--The Commission shall
meet at the call of the Chairman as necessary to accomplish the
duties under section 212.</DELETED>
<DELETED> (3) Quorum.--No business may be conducted or
hearings held without the participation of all of the members
of the Commission.</DELETED>
<DELETED>SEC. 212. DUTIES OF ASBESTOS INSURERS COMMISSION.</DELETED>
<DELETED> (a) Determination of Insurer Liability for Asbestos
Injuries.--</DELETED>
<DELETED> (1) In general.--The Commission shall determine
the amount that each insurer participant will be required to
pay into the Fund to satisfy their contractual obligation to
compensate claimants for asbestos injuries.</DELETED>
<DELETED> (2) Allocation agreement.--</DELETED>
<DELETED> (A) In general.--Not later than 30 days
after the Commission issues its initial determination,
the insurer participants may submit an allocation
agreement, approved by all of the insurer participants,
to--</DELETED>
<DELETED> (i) the Commission;</DELETED>
<DELETED> (ii) the Committee on the
Judiciary of the Senate; and</DELETED>
<DELETED> (iii) the Committee on the
Judiciary of the House of
Representatives.</DELETED>
<DELETED> (B) Certification.--The authority of the
Commission under this subtitle shall terminate on the
day after the Commission certifies that an allocation
agreement submitted under subparagraph (A) meets the
requirements of this subtitle.</DELETED>
<DELETED> (3) General provisions.--</DELETED>
<DELETED> (A) Aggregate contribution level.--The
total contribution required of all insurer participants
over the life of the Fund shall be equal to
$45,000,000,000.</DELETED>
<DELETED> (B) Declining payments.--Since the
payments from the Fund are expected to decline over
time, the annual contributions from insurer
participants is also expected to decline over time. The
proportionate share of each insurer participant's
contributions to the Fund will remain the same
throughout the life of the Fund.</DELETED>
<DELETED> (C) Several liability.--Each insurer
participant's obligation to contribute to the Fund is
several. There is no joint liability and the future
insolvency of any insurer participant shall not affect
the assessment assigned to any other insurer
participant.</DELETED>
<DELETED> (4) Assessment criteria.--</DELETED>
<DELETED> (A) Mandatory participants.--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 shall be mandatory participants in the Fund.
Other insurers shall be exempt from mandatory
payments.</DELETED>
<DELETED> (B) Participant tiers.--Contributions
shall be determined by assigning mandatory insurer
participants into tiers, which shall be determined and
defined based on--</DELETED>
<DELETED> (i) net written premiums received
from policies covering asbestos that were in
force at any time during the period beginning
on January 1, 1940 and ending on December 31,
1986;</DELETED>
<DELETED> (ii) net paid losses for asbestos
injuries compared to all such losses for the
insurance industry;</DELETED>
<DELETED> (iii) net carried reserve level
for asbestos claims on the most recent
financial statement of the insurer participant;
and</DELETED>
<DELETED> (iv) future liability.</DELETED>
<DELETED> (C) Payment schedule.--Any final
determination of assessment issued under subsection (b)
may allow for periodic payments, provided that the full
annual amount assessed is paid each year. Each insurer
participant shall pay its contribution to the Fund in
the amount specified in the final determination of
assessment from the Commission, according to the
schedule specified in the final
determination.</DELETED>
<DELETED> (b) Procedure.--</DELETED>
<DELETED> (1) Notice to participants.--Not later than 30
days after the initial meeting of the Commission, the
Commission shall--</DELETED>
<DELETED> (A) directly notify all reasonably
identifiable insurer participants of the requirement to
submit information necessary to calculate the amount of
any required contribution to the Fund; and</DELETED>
<DELETED> (B) publish in the Federal Register a
notice requiring any person who may be an insurer
participant (as determined by criteria outlined in the
notice) to submit such information.</DELETED>
<DELETED> (2) Response required.--</DELETED>
<DELETED> (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 at the earlier of--</DELETED>
<DELETED> (i) 30 days after the receipt of
direct notice; or</DELETED>
<DELETED> (ii) 30 days after the publication
of notice in the Federal Register.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (3) Notice of initial determination.--</DELETED>
<DELETED> (A) In general.--Not later than 120 days
after the initial meeting of the Commission, the
Commission shall send each insurer participant a notice
of initial determination assessing a contribution to
the Fund, which shall be based on the information
received from the participant in response to the
Commission's request for information.</DELETED>
<DELETED> (B) No response; incomplete response.--If
no response is received from an insurer participant, or
if the response is incomplete, the initial
determination assessing a contribution from the insurer
participant shall be based on the best information
available to the Commission.</DELETED>
<DELETED> (4) Review period.--</DELETED>
<DELETED> (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 limited adjustments to the
assessment received to reflect exceptional
circumstances.</DELETED>
<DELETED> (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 a
contribution from that person should be assessed, in
accordance with the requirements of this
subsection.</DELETED>
<DELETED> (C) Revision procedures.--The Commission
shall adopt procedures for revising initial assessments
based on information received under subparagraphs (A)
and (B). Any adjustments to assessment levels shall
comply with the criteria under subsection
(a).</DELETED>
<DELETED> (5) 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.</DELETED>
<DELETED> (6) Notice of final determination.--</DELETED>
<DELETED> (A) In general.--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.</DELETED>
<DELETED> (B) Judicial review.--A participant has a
right to obtain judicial review of the Commission's
final determination under title III.</DELETED>
<DELETED> (c) Determination of Relative Liability for Asbestos
Injuries.--The Commission shall determine the percentage of the total
liability of each participant identified under subsection
(a).</DELETED>
<DELETED> (d) Report.--</DELETED>
<DELETED> (1) Recipients.--Not later than 1 year after the
date of enactment of this Act, the Commission shall submit a
report, containing the information described under paragraph
(2), to--</DELETED>
<DELETED> (A) the Committee on the Judiciary of the
Senate;</DELETED>
<DELETED> (B) the Committee on the Judiciary of the
House of Representatives; and</DELETED>
<DELETED> (C) the Court of Asbestos
Claims.</DELETED>
<DELETED> (2) Contents.--The report under paragraph (1)
shall contain the amount that each insurer participant is
required to contribute to the Fund, including the payment
schedule for such contributions.</DELETED>
<DELETED>SEC. 213. POWERS OF ASBESTOS INSURERS COMMISSION.</DELETED>
<DELETED> (a) 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.</DELETED>
<DELETED> (b) Information From Federal Agencies.--The Commission may
secure directly from any Federal 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.</DELETED>
<DELETED> (c) 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.</DELETED>
<DELETED> (d) Gifts.--The Commission may not accept, use, or dispose
of gifts or donations of services or property.</DELETED>
<DELETED>SEC. 214. PERSONNEL MATTERS.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (c) Staff.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED>SEC. 215. NONAPPLICATION OF FOIA AND CONFIDENTIALITY OF
INFORMATION.</DELETED>
<DELETED> (a) In General.--Section 552 of title 5, United States
Code (commonly referred to as the Freedom of Information Act) shall not
apply to the Commission.</DELETED>
<DELETED> (b) Confidentiality of Information.--All information
submitted to the Commission shall be privileged and confidential
information and shall not be disclosed to any person outside the
Commission, unless such privilege is knowingly and intentionally waived
by the person submitting the information. An appeal of an assessment to
the Fund under this subtitle shall be deemed a waiver for the purposes
of this subsection unless the appellee participant makes a motion for
an in camera review of its appeal.</DELETED>
Subtitle B--Asbestos Insurers Commission
SEC. 210. DEFINITIONS.
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, 2002.
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, after
consultation with--
(A) the majority leader of the Senate;
(B) the minority leader of the Senate;
(C) the Speaker of the House of Representatives;
and
(D) the minority leader of the House of
Representatives.
(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 may be a former employee or
shareholder of any insurer participant, unless
that is fully disclosed.
(ii) Definition.--As used in clause (i),
the term ``shareholder'' shall not include a
broadly based mutual fund that may, from time-
to-time include 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) Date.--The appointments of the members of the
Commission shall be made not later than 60 days after the date
of enactment of this Act.
(4) Period of appointment.--Members shall be appointed for
the life of the Commission.
(5) Vacancies.--Any vacancy in the Commission shall be
filled in the same manner as the original appointment.
(6) Chairman.--The Commission shall select a Chairman from
among its members.
(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 all of the members of the
Commission.
SEC. 212. DUTIES OF ASBESTOS INSURERS COMMISSION.
(a) Determination of Insurer Liability for Asbestos Injuries.--
(1) In general.--
(A) Definitions.--For the purposes of this Act, the
terms ``insurer participant'' and ``mandatory 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) Determination.--The Commission shall determine
the amount that each insurer participant will be
required to pay into the Fund to satisfy its
contractual obligation to compensate claimants for
asbestos injuries.
(C) Scope.--Every insurer, reinsurer and run-off
entity with asbestos-related obligations in the United
States shall be included within the Commission's
authority under this Act, including its allocation
determinations, and shall be required to fulfill its
allocation obligation, without regard as to whether it
is licensed in the United States.
(2) Allocation agreement.--
(A) In general.--Not later than 30 days after the
Commission issues its initial determination, the direct
insurer participants or reinsurer participants may
submit an allocation agreement, approved by all of the
participants in the applicable group, to--
(i) the Commission;
(ii) the Committee on the Judiciary of the
Senate; and
(iii) the Committee on the Judiciary of the
House of Representatives.
(B) Certification.--The authority of the Commission
under this subtitle shall terminate on the day after
the Commission certifies that an allocation agreement
submitted under subparagraph (A) meets the requirements
of this subtitle.
(3) General provisions.--
(A) Aggregate contribution level.--The total
contribution required of all insurer participants over
the life of the Fund shall be equal to $52,000,000,000.
(B) Declining payments.--Subject to section 223(f),
or unless otherwise provided under this Act, since the
payments from the Fund are expected to decline over
time, the annual contributions from insurer
participants is also expected to decline over time. The
proportionate share of each insurer participant's
contributions to the Fund will remain the same
throughout the life of the Fund.
(C) Several liability.--Unless otherwise provided
under this Act, each insurer participant's obligation
to contribute to the Fund is several. There is no joint
liability and the future insolvency of any insurer
participant shall not affect the assessment assigned to
any other insurer participant.
(4) Assessment criteria.--
(A) Mandatory participants.--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 mandatory insurer participants in
the Fund. Other insurers shall be exempt from mandatory
payments.
(B) Participant allocation formula.--
(i) In general.--Contributions shall be
determined by establishing an individual
contribution obligation for each insurer
participant. The Commission shall establish
such contribution obligations on an equitable
basis, 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 liabilities;
(III) amounts reserved for asbestos
liabilities;
(IV) the likely costs 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.--For the
purpose of determining reserves, the reserves
of a United States licensed reinsurer that is
wholly owned by 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 29 of its filings with
the National Association Insurance
Commissioners or in published financial
statements prepared in accordance with
generally accepted accounting principles.
(C) Total fund contributions.--
(i) Total fund contribution obligations for
direct insurer participants, licensed in the
united states.--The funding contribution
obligations of direct insurer participants
licensed or domiciled in the United States
shall be a portion of the $52,000,000,000 total
insurer participant obligation set forth in
paragraph (3)(A). That total amount shall be
determined by the Administrator under the
assessment criteria as set forth in this
section.
(ii) Total fund contribution obligations
for all other insurer participants.--The
funding contribution obligations of all insurer
participants, other than direct insurer
participants licensed or domiciled in the
United States, shall be a portion of the
$52,000,000,000 total obligation set forth in
paragraph (3)(A). That total amount shall be
determined by the Administrator under the
assessment criteria as set forth in this
section, and take into account that
contributions shall not be required from
reinsurers whose reserves were included in
clause (i). In determining the allocation
obligations of run-off entities specifically
created, in whole or in part, to review and pay
asbestos claims, the Commission shall use
accounting standards equivalent to those
required for United States licensed direct
insurers.
(D) Captive insurance companies.--No contribution
to the Fund shall be assessed from a captive insurance
company, unless and only to the extent a captive
insurance company, on the date of enactment of this
Act, has liability, directly or indirectly, for any
asbestos claim of a person or persons other than and
unaffiliated with its ultimate parent or affiliated
group or pool in which the ultimate parent participates
or participated, or unaffiliated with a person that was
its ultimate parent or a member of its affiliated group
or pool at the time the relevant insurance or
reinsurance was issued by the captive insurance
company.
(E) Payment schedule.--
(i) In general.--Any final determination of
assessment issued under subparagraph (B) shall
allow for periodic payments, if the full annual
amount assessed is paid each year. Each insurer
participant shall pay its contribution to the
Fund in the amount specified in the final
determination of assessment from the
Commission, according to the schedule specified
in the final determination. Unless otherwise
provided under this Act, when an insurer
participant has fully paid its allocation
obligation to the Fund, it shall have no
further financial responsibilities under this
Act.
(ii) Expedited payments.--Any mandatory
insurer participant, irrespective of whether
that participant is a direct insurer, may make
a lump-sum payment, or expedited payments, to
the Fund. Such payment or payments shall
reflect the insurer participant's allocation
obligation on a net present value basis at the
time the payment is made.
(iii) Special payment schedule for direct
insurers.--Without regard to clause (i), every
insurer participant that is a direct insurer
shall pay 100 percent of its allocated amount
within 3 years after the effective date of this
Act. The amount paid by each such direct
insurer in each of the 3 years shall equal \1/
3\ of its total obligation.
(F) Judicial review.--An interested party may
obtain judicial review of any final regulation of the
Commission with regard to an allocation formula
established under this section. The review shall be
governed by the requirements and procedures of section
302.
(G) Financial hardships.--Under expedited
procedures established by the Commission, an insurer
participant may seek adjustment of the amount of its
contribution based on severe financial hardship. The
Commission may determine whether to grant an adjustment
and the size of any such adjustment, in accordance with
this subsection. Such determinations shall not
prejudice the integrity of the Fund and shall not be
subject to judicial review.
(b) Procedure.--
(1) Notice to participants.--Not later than 30 days after
the initial meeting of the Commission, or an alternative date
determined consistent with the Commission's rulemaking process,
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 contribution to the Fund, including at the
Commission's discretion newly calculated asbestos
reserves undertaken under a common methodology
established by the Commission; and
(B) publish in the Federal Register a notice
requiring any person who may be an insurer participant
(as determined by criteria outlined in the notice) to
submit such information.
(2) Response required.--
(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 at 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.
(3) Notice of initial determination.--
(A) In general.--Not later than 120 days after the
initial meeting of the Commission, or an alternative
date determined consistent with the Commission's
rulemaking process, the Commission shall send each
insurer participant a notice of initial determination
assessing a contribution to the Fund, which shall be
based on the information received from the participant
in response to the Commission's request for
information.
(B) No response; incomplete response.--If no
response is received from an insurer participant, or if
the response is incomplete, the initial determination
assessing a contribution from the insurer participant
shall be based on the best information available to the
Commission.
(4) Review period.--
(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 limited adjustments to the
assessment received to reflect 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 a contribution from that person
should be assessed, in accordance with the requirements
of this subsection.
(C) Revision procedures.--The Commission shall
adopt procedures for revising initial assessments based
on information received under subparagraphs (A) and
(B). The Commission shall adopt procedures for revising
initial assessments 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. Any adjustments to assessment
levels shall comply with the criteria under subsection
(a).
(5) 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 allocation 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 the date of enactment of this Act shall be the
property of the insurer participant and returned to that
insurer participant.
(7) Notice of final determination.--
(A) In general.--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.
(B) Judicial review.--A participant has a right to
obtain judicial review of the Commission's final
determination under title III.
(c) Determination of Relative Liability for Asbestos Injuries.--The
Commission shall determine the percentage of the total liability of
each participant identified under subsection (a).
(d) Report.--
(1) Recipients.--Not later than 1 year after the date of
enactment of this Act, the Commission shall submit a 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 Court of Federal Claims.
(2) Contents.--The report under paragraph (1) shall contain
the amount that each insurer participant is required to
contribute to the Fund, including the payment schedule for such
contributions.
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 formula. Such rules and
regulations shall be promulgated after providing interested parties
with the opportunity for notice and comment. Before the adoption of a
regulation for an allocation formula, the Commission shall, as
authorized in subsection (b), hold informational hearings to assist in
its development of allocation factors and requirements. The Commission
shall also hold a hearing on any proposed regulation establishing an
allocation formula, before the Commission's adoption of a final
regulation.
(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.
(c) Information From Federal Agencies.--The Commission may secure
directly from any Federal 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.
(g) Insurer Participant Payments Prior to Allocation Assessment
Determination.--The Administrator may require insurer participants to
make payments to the Fund prior to the Commission having established
its allocation formula, except that no such obligation shall exceed the
ultimate financial obligation of a direct insurer under the final
allocation formula. Any such prior payments shall be made solely for
the purpose of assuring the ability of the Fund to meet its financial
obligations. Such payments shall be assessed on an equitable basis and
shall be equivalent, in total, to the funding obtained from the
defendant participants for the same period of time. All such payments
shall be credited against an insurer participant's ultimate financial
obligation to the Fund.
(h) Cause of Action.--In addition to the authority granted under
section 224, the Administrator shall have the authority to pursue a
civil action in Federal court against any reinsurer that fails to
comply with its obligations under this Act and shall be able to seek
treble damages for such failure. For any amounts the Administrator is
unable to collect from a reinsurer, the direct insurer shall be
obligated.
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. APPLICATION OF FOIA.
(a) In General.--Section 552 of title 5, United States Code
(commonly referred to as the Freedom of Information Act) shall apply to
the Commission.
(b) Confidentiality.--Any person may designate any record submitted
under this subtitle as a confidential commercial or financial record
for purposes of section 552 of title 5, United States Code. The
Chairman of the Commission shall adopt procedures for designating such
records as confidential.
<DELETED>SEC. 216. TERMINATION OF ASBESTOS INSURERS
COMMISSION.</DELETED>
<DELETED> The Commission shall terminate 60 days after the date on
which the Commission submits its report under section 212(c).</DELETED>
<DELETED>SEC. 217. AUTHORIZATION OF APPROPRIATIONS.</DELETED>
<DELETED> (a) In General.--There are authorized to be appropriated
to the Commission such sums as may be necessary for fiscal year 2004 to
carry out the provisions of this subtitle.</DELETED>
<DELETED> (b) Availability.--Any sums appropriated under the
authorization contained in this section shall remain available, without
fiscal year limitation, until expended.</DELETED>
SEC. 216. TERMINATION OF ASBESTOS INSURERS COMMISSION.
The Commission shall terminate 60 days after the date on which the
Commission submits its report under section 212(c).
SEC. 217. EXPENSES AND COSTS OF COMMISSION.
All expenses and costs of the Commission shall be paid from the
Fund.
Subtitle C--Office of Asbestos Injury Claims Resolution
SEC. 221. ESTABLISHMENT OF THE OFFICE OF ASBESTOS INJURY CLAIMS
RESOLUTION.
(a) In General.--There is established the Office of Asbestos Injury
Claims Resolution.
(b) Responsibilities.--The Office shall be responsible for--
(1) administering the Fund;
(2) providing payments from the Fund to asbestos claimants
who are determined to be eligible for awards; and
(3) carrying out other applicable provisions of this title
and other activities determined appropriate by the
Administrator.
(c) Administrator.--
(1) Appointment.--The Office shall be headed by an
Administrator who shall be appointed by the President, by and
with the advice and consent of the Senate.
(2) Term; removal.--The Administrator shall serve for a
term of 5 years and may be removable by the President only for
good cause.
SEC. 222. POWERS OF THE ADMINISTRATOR AND MANAGEMENT OF THE FUND.
(a) General Powers.--The Administrator shall have the following
general powers:
(1) To promulgate such regulations as the Administrator
determines to be necessary to implement the provisions of this
subtitle.
(2) To appoint employees or contract for the services of
other personnel as may be necessary and appropriate to carry
out the provisions of this subtitle, including entering into
cooperative agreements with other Federal agencies.
(3) To make such expenditures as may be necessary and
appropriate in the administration of this subtitle.
(4) To take all actions necessary to prudently manage the
Fund, including--
(A) administering, in a fiduciary capacity, the
assets of the Fund for the exclusive purpose of
providing benefits to asbestos claimants and their
beneficiaries;
(B) defraying the reasonable expenses of
administering the Fund;
(C) investing the assets of the Fund in accordance
with subsection (b)(2); and
(D) 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.
(5) To have all other powers incidental, necessary, or
appropriate to carrying out the functions of the Office.
(b) Requirements Relating to Fund Assets.--
(1) 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.
(2) Investments.--
(A) 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.
(B) 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--
(i) the size of the Fund;
(ii) the nature and estimated duration of
the Fund;
(iii) the liquidity and distribution
requirements of the Fund;
(iv) general economic conditions at the
time of the investment;
(v) the possible effect of inflation or
deflation on Fund assets;
(vi) the role that each investment or
course of action plays with respect to the
overall assets of the Fund;
(vii) the expected amount to be earned
(including both income and appreciation of
capital) through investment of amounts in the
Fund; and
(viii) the needs of asbestos claimants for
current and future distributions authorized
under this Act.
(c) Violations of Environmental and Occupational Health and Safety
Requirements.--
(1) 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
<DELETED>section 6(a) of</DELETED> the Toxic Substances Control
Act (15 U.S.C. <DELETED>2605(a)</DELETED> 2601 et seq.),
relating to the manufacture, importation, processing, disposal
and distribution in commerce of asbestos-containing products,
the Administrator <DELETED>may refer the matter</DELETED> 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 <DELETED>under section 16(a) of the
Toxic Substances Control Act (15 U.S.C. 2615(a))</DELETED> ,
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.
(2) 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
<DELETED>section 112(d) of</DELETED> the Clean Air Act (42
U.S.C. <DELETED>7412(d)</DELETED> 7401 et seq.), relating to
asbestos as a hazardous air pollutant, the Administrator
<DELETED>may refer the matter</DELETED> 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.
(3) 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 <DELETED>may refer the matter to
the United States Attorney for possible criminal prosecution
under section 5(a) of such Act (29 U.S.C. 654(a)), and to the
Secretary of Labor for possible civil penalties under section
17 (a)-(d) of such Act (29 U.S.C. 666 (a)-(d)).</DELETED> shall
refer the matter in writing within 30 days after receiving that
information and refer the matter to--
(A) the United States Attorney for possible
criminal prosecution under section 5(a) of such Act (29
U.S.C. 654(a));
(B) the Secretary of Labor for possible civil
penalties under section 17 (a) through (d) of such Act
(29 U.S.C. 666 (a) through (d)); and
(C) the Assistant Secretary for the Occupational
Safety and Health Commission, and the appropriate State
authority with jurisdiction to investigate asbestos
matters, for possible civil or criminal penalties,
including those under section 17 of the Occupational
Safety and Health Act of 1970 (29 U.S.C. 666).
(4) 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--
(A) appropriate changes are made within the
guidelines to reflect any statutory amendments that
have occurred since the time that the current guideline
was promulgated;
(B) 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; record keeping, 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;
(C) 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--
(i) involves asbestos as a hazardous or
toxic substance; and
(ii) occurs after the date of enactment of
this Act;
(D) 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;
(E) 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
(F) 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 Asbestos Insurers
Commission or the Office of Asbestos Injury Claim
Resolution.
SEC. 223. ASBESTOS INJURY CLAIMS RESOLUTION FUND.
(a) Establishment.--There is established in the Office of Asbestos
Injury Claims Resolution, 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
(c); and
(4) administrative expenses to carry out this subtitle.
(b) <DELETED>Limitations on</DELETED> Contributions by Mandatory
Participants.--The aggregate contributions of all mandatory
participants to the Fund may not exceed $5,000,000,000 in any calendar
year unless otherwise provided.
(c) Borrowing Authority.--The Administrator is authorized to
borrow, in any calendar year, an amount not to exceed anticipated
contributions to the Fund in the following calendar year for purposes
of carrying out the obligations of the Fund under this Act.
(d) Guaranteed Payment Account.--
(1) In general.--The Administrator shall establish a
guaranteed payment account within the Fund to insure payment of
the total amount of contributions required to be paid into the
Fund by all participants.
(2) Surcharge.--The Administrator shall impose, on each
participant required to pay contributions into the Fund under
this Act, in addition to the amount of such contributions, a
reasonable surcharge to be paid into the guaranteed payment
account in an amount that the Administrator determines
appropriate to insure against the risk of nonpayment of
required contributions by any such participant.
(3) Procedure.--The surcharge required under this section
shall be paid in such manner, at such times, and in accordance
with such procedures as the Administrator determines
appropriate.
(4) Uses of guaranteed payment account.--Amounts in the
guaranteed payment account shall be used as necessary to pay
claims from the Fund, to the extent that amounts in the Fund
are insufficient to pay such claims due to nonpayment by any
participant.
(5) Enforcement.--The enforcement of the payment of a
surcharge under this subsection may be enforced in the same
manner and to the same extent as the enforcement of a
contribution under section 224.
(e) 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 X.
(B) A Lung Cancer Account, which shall be used
solely to make payments to claimants eligible for an
award under the criteria of Level IX.
(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
contributions 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.
(f) Contingent Call for Additional Mandatory Funding.--
(1) In general.--Notwithstanding sections 202(a)(2) and
212(a)(3)(A), unless the Administrator certifies under this
subsection that there are adequate funds available to
compensate past, pending, and projected future claimants at the
scheduled award values provided in section 131(b), the
Administrator shall assess additional contributions from all
participants during first 27 years of the Fund (in this
section, the ``mandatory funding period''), as provided in this
subsection.
(2) Allocation.-- Any additional contributions assessed
under this subsection shall be allocated among each participant
as provided under paragraphs (4) and (5).
(3) Reduction adjustment certification.--
(A) In general.--Before making any reduction
adjustment under section 204(a) or section
212(a)(3)(B), the Administrator shall certify, after
consultation with appropriate experts, that during the
time period in which such reduction adjustment would
apply there will be adequate funds available to
compensate past, pending, and projected future
claimants at the scheduled award values provided in
section 131(b) of this Act.
(B) Initial notice.--Before making any
certification under subparagraph (A), the Administrator
shall publish a notice in the Federal Register of the
proposed certification, including a description and
explanation of the Administrator's analysis supporting
the certification of the Administrator.
(C) Comments from participants.--Not later than 60
days after the publication of the notice under
subparagraph (B), a participant may provide the
Administrator with additional information to support a
determination that additional contributions from
participants are not required.
(D) Final certification.--
(i) In general.--The Administrator shall
publish a notice in the Federal Register of the
final certification after consideration of all
comments submitted under subparagraph (C).
(ii) Written notice.--Not later than 30
days of publishing a final certification under
clause (i), the Administrator shall provide
each participant with notice of that
participant's final contribution assessment
after application of any reduction adjustment
under section 204(a) or section 212(a)(3)(B),
subject to paragraphs (4) and (5).
(4) Defendant participants.--
(A) In general.--Any additional contributions from
the defendant participants under paragraph (1) shall be
allocated in accordance with subparagraphs (B) through
(H).
(B) Years 6 through 8.--If the Administrator fails
to certify that there are adequate funds during years 6
through 8 of the mandatory funding period, the
Administrator shall maintain after year 5 of the
mandatory funding period the contribution levels
assessed under section 203 and not make any reduction
adjustments as provided in section 204(a) for years 6
through 8.
(C) Years 9 through 11.--If the Administrator fails
to certify that there are adequate funds during years 9
through 11 of the mandatory funding period, the
Administrator shall maintain after year 8 of the
mandatory funding period the contribution levels
assessed under section 203 and not make any reduction
adjustments as provided in section 204(a) for years 9
through 11.
(D) Years 12 through 14.--If the Administrator
fails to certify that there are adequate funds during
years 12 through 14 of the mandatory funding period,
the Administrator shall maintain after year 11 of the
mandatory funding period the contribution levels
assessed under section 203 and not make reduction
adjustments as provided in section 204(a) for years 12
through 14.
(E) Years 15 through 17.--If the Administrator
fails to certify that there are adequate funds
available during years 15 through 17 of the mandatory
funding period, the Administrator shall maintain after
year 14 of the mandatory funding period the
contribution levels assessed under section 203 and not
make any reduction adjustments as provided in section
204(a) for years 15 through 17.
(F) Years 18 through 20.--If the Administrator
fails to certify that there are adequate funds
available during years 18 through 20 of the mandatory
funding period, the Administrator shall maintain after
year 17 of the mandatory funding period the
contribution levels assessed under section 203 and not
make any reduction adjustments as provided in section
204(a) for years 18 through 20.
(G) Years 21 through 26.--If the Administrator
fails to certify that there are adequate funds
available during years 21 through 26 of the mandatory
funding period, the Administrator shall maintain until
year 26 of the mandatory funding period the
contribution levels assessed under section 203 and not
make any reduction adjustments as provided in section
204(a) for years 21 through 26.
(H) Year 27.--If the Administrator fails to certify
that there are adequate funds available during year 27
of the mandatory funding period, the Administrator
shall maintain the contribution levels assessed under
section 203 and not make any reduction adjustments as
provided in section 204(a) for year 27.
(I) Determination of reduction adjustments.--
(i) In general.--In administering
subparagraphs (C) through (H), clauses (ii) and
(iii) shall apply.
(ii) Certification of adequate funds.--If a
reduction adjustment was not made in any
preceding 3-year, 6-year, or 1-year period and
the Administrator certifies there are adequate
funds under paragraph (3), the amount of any
reduction adjustment under section 204(a) shall
be determined as though all preceding
reductions had been made.
(iii) Additional reduction adjustment.--If
at any time during the first 27 years of the
Fund the Administrator determines that there
are more than adequate funds to compensate
past, pending, and future claimants at the
scheduled award values under section 131(b),
the Administrator may use any excess funds to
provide an additional reduction adjustment to
participants in addition to any reduction
adjustment made under clause (ii). The total
reduction adjustment for any participant shall
be no greater than the amount of additional
contributions required under this section.
(J) Limitation of required contribution.--
Notwithstanding subparagraphs (B) through (H), if the
Administrator certifies, after consultation with
appropriate experts, there will be adequate funds
available to compensate past, pending, and projected
future claimants at the scheduled award values provided
in section 131(b) after applying a smaller reduction
adjustment than otherwise required under this
paragraph, during the time period in which such
reduction adjustment would apply, the Administrator
shall apply such smaller reduction adjustment.
(K) No orphan share.--The additional contributions
collected by the Administrator under this subsection
shall not be considered excess monies under subsection
(h) to be placed in the orphan share reserve account
and shall be credited to the Fund only for the payment
of claims.
(5) Insurer participants.--
(A) In general.--The Administrator shall require
additional contributions from the insurer participants
in an amount equal the total amount of additional
contributions allocated to the defendant participants
under paragraph (4) for any 3-year, 6-year, or 1-year
period.
(B) Allocation.--Of the amount of additional
contributions required under subparagraph (A), each
insurer participant shall be allocated an additional
contribution equal to the insurer participant's
proportionate share of annual contributions to the Fund
under section 212.
(6) Enforcement.--The additional contributions required
under this subsection may be enforced in the same manner and to
the same extent as the enforcement of a contribution under
section 224.
(g) Back-End Payments.--
(1) In general.--Notwithstanding sections 202(a)(2),
204(a), and 212(a)(3)(A), in any year after year 27 of the
Fund, if the Administrator, after consultation with appropriate
experts, determines that additional contributions are needed to
assure adequate funding for claimants eligible to receive
compensation under this Act at the scheduled awards value as
originally enacted, as adjusted for inflation, the
Administrator may request, each year, in the aggregate, no more
than--
(A) an additional $1,000,000,000 from the defendant
participants; and
(B) an additional $1,000,000,000 from the insurer
participants.
(2) Voluntary contributions.--Upon a determination by the
Administrator under paragraph (1) that additional contributions
are required, a defendant participant or an insurer participant
may make an annual contribution to the Fund in an amount equal
to that participant's required share of the aggregate payment
requested by the Administrator.
(3) Failure to make voluntary payments.--
(A) Subjection to asbestos claims.--If a
participant fails to make a voluntary contribution
under paragraph (2)--
(i) section 403 shall no longer apply to
that participant; and
(ii) the participant shall be subject to
civil actions for asbestos claims brought under
any Federal or State law, including tort or
common law, that were otherwise superseded or
preempted by this Act.
(B) Exclusive jurisdiction.--The district courts of
the United States shall have exclusive jurisdiction to
hear any asbestos claim allowable under subparagraph
(A).
(C) Statute of limitations.--With respect to any
civil action for an asbestos claim against a
participant that failed to make a voluntary
contribution under paragraph (2), the statute of
limitations with respect to that asbestos claim shall
not begin to run for any claimant who has filed such
claim under section 111(c) and who has not received
full compensation under this Act, until such time the
claimant knew or should have known that the participant
failed to make a voluntary contribution under paragraph
(2).
<DELETED>(e)</DELETED> (h) Orphan Share Reserve Account.--
(1) In general.--To the extent the total amount of
contributions of the participants in any given year exceed the
<DELETED>maximum</DELETED> minimum aggregate contribution under
section 204(h), the excess monies shall be placed in an orphan
share reserve account established within the Fund by the
Administrator.
(2) Use of account monies.--Monies from the orphan share
reserve account shall be preserved and administered like the
remainder of the Fund, but shall be reserved and may be used
only--
(A) in the event that a petition for relief is
filed and not withdrawn for the participant under title
11, United States Code, after the date of enactment of
this Act and the participant cannot meet its
obligations under this subtitle; and
(B) to the extent the Administrator grants a
participant relief for severe financial hardship or
demonstrated inequity under this section.
SEC. 224. ENFORCEMENT OF CONTRIBUTIONS.
(a) Default.--If any participant fails to make any payment in the
amount and according to the schedule specified in a determination of
assessment, after demand and 30 days 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.
(c) Civil Action.--
<DELETED> (1) In general.--In any case in which there has
been a refusal or neglect to pay the liability imposed by the
final determination under section 202 or 212, the Administrator
may bring a civil action in the Federal district court for the
District of Columbia to--</DELETED>
<DELETED> (A) enforce such liability and the lien of
the United States under this section; or</DELETED>
<DELETED> (B) subject any property, of whatever
nature, of the participant, or in which the participant
has any right, title, or interest, to the payment of
such liability.</DELETED>
<DELETED> (2) Defense limitation.--In any proceeding under
this subsection, the participant shall be barred from bringing
any challenge to the assessment if such challenge could have
been made during the review period under section 202(b)(4) or
212(b)(4), or a judicial review proceeding under title
III.</DELETED>
(1) In general.--In any case in which there has been a
refusal or failure to pay any liability imposed by a final
determination under section 202 or 212, the Administrator may
bring a civil action in the Federal District Court for the
District of Columbia--
(A) to enforce the liability and any lien of the
United States imposed under this section;
(B) to subject any property of the participant,
including any property in which the participant has any
right, title, or interest, to the payment of such
liability; or
(C) for temporary, preliminary, or permanent
relief.
(2) Additional penalties.--In any action under paragraph
(1) in which the refusal or failure to pay was willful, the
Administrator may seek recovery--
(A) for punitive damages;
(B) for 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, collect a
fine equal to the total amount of the liability that
has not been collected.
(3) Defense limitation.--In any proceeding under this
subsection, the participant shall be barred from bringing any
challenge to the assessment if such challenge could have been
made during the review period under section 202(b)(4) or
212(b)(4), or a judicial review proceeding under title III.
(4) Deposit of funds.--
(A) In general.--Any funds collected under
paragraph (2)(C) shall be--
(i) deposited in the Fund; and
(ii) 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.
(B) No effect on other liabilities.--The imposition
of a fine under paragraph (1)(E) shall have no effect
on--
(i) the assessment of contributions under
section 202 or 212; or
(ii) any other provision of this Act.
<DELETED>SEC. 225. ADDITIONAL CONTRIBUTING PARTICIPANTS.</DELETED>
<DELETED> (a) Definition.--In this section, the term ``additional
contributing participant'' means any defendant in an asbestos claim
that is not a mandatory participant under subtitle A and is likely to
avoid future civil liability as a result of this Act.</DELETED>
<DELETED> (b) Assessment.--In addition to contributions assessed
under subtitle A, the Administrator may assess additional contributing
participants for contributions to the Fund. Any additional contributing
participant assessed under this section shall be treated as a defendant
participant for purposes of procedures and appeals under this
Act.</DELETED>
<DELETED> (c) Assessment Limitations.--The Administrator may assess
under subsection (b), over the life of the Fund, an amount not to
exceed $14,000,000,000 from all additional contributing
participants.</DELETED>
TITLE III--JUDICIAL REVIEW
SEC. 301. JUDICIAL REVIEW OF DECISIONS OF THE <DELETED>ASBESTOS COURT</DELETED>
UNITED STATES COURT OF ASBESTOS CLAIMS.
(a) Exclusive Jurisdiction.--<DELETED>The United States Court of
Appeals for the District of Columbia</DELETED> The United States Court
of Appeals for the Federal Circuit shall have exclusive jurisdiction
over any action to review a final decision of the <DELETED>Asbestos
Court</DELETED> United States Court of Asbestos Claims of the Court of
Federal Claims.
(b) Procedure for Appeals.--
(1) Period for filing appeal.--An appeal under this section
shall be filed not later than 30 days after the issuance of a
final decision by the <DELETED>Asbestos Court</DELETED> United
States Court of Asbestos Claims.
(2) Transmittal of record.--Upon the filing of an appeal, a
copy of the filing shall be transmitted by the clerk of the
court to the <DELETED>Asbestos Court</DELETED> United States
Court of Asbestos Claims, and the <DELETED>Asbestos Court</DELETED>
United States Court of Asbestos Claims shall file in the court
the record in the proceeding, as provided in section 2112 of
title 28, United States Code.
(3) Standard of review.--
(A) In general.--The court shall uphold the
decision of the <DELETED>Asbestos Court</DELETED>
United States Court of Asbestos Claims if the court
determines, upon review of the record as a whole, that
the decision is not arbitrary and capricious.
(B) Effect of determination.--If the court
determines that a final decision of the
<DELETED>Asbestos Court</DELETED> United States Court
of Asbestos Claims is arbitrary and capricious, the
court shall remand the case to the <DELETED>Asbestos
Court</DELETED> United States Court of Asbestos Claims.
(4) Finality of determination.--The decision of the
<DELETED>United States Court of Appeals for the District of
Columbia</DELETED> United States Court of Appeals for the
Federal Circuit shall be final, except that the same shall be
subject to review by the Supreme Court of the United States, as
provided in section 1254 of title 28, United States Code.
SEC. 302. JUDICIAL REVIEW OF FINAL DETERMINATIONS OF THE ADMINISTRATOR
AND OF THE ASBESTOS INSURERS COMMISSION.
(a) Exclusive Jurisdiction.--The United States District Court for
the District of Columbia shall have exclusive jurisdiction over any
action to review a final determination by the Administrator or the
Asbestos Insurers Commission regarding the assessment of a contribution
to the Fund from a participant.
(b) Procedure for Appeal.--
(1) Period for filing appeal.--An appeal under this section
shall be filed not later than 30 days after the issuance of a
final determination by the Administrator or the Commission.
(2) Transmittal of record.--Upon the filing of an appeal, a
copy of the filing shall be transmitted by the clerk of the
court to the Administrator or the Commission.
(c) Standard of Review.--
(1) In general.--The United States District Court for the
District of Columbia shall uphold the final determination of
the Administrator or the Commission with respect to the
assessment of a contribution to the Fund from a participant if
such determination is not arbitrary and capricious.
(2) Effect of determination.--If the court determines that
a final determination with respect to the amount of a
contribution to the Fund by a participant may not be upheld,
the court shall remand the decision to the Administrator or the
Commission, with instructions to modify the final
determination.
(3) No stays.--The court may not issue a stay of payment
into the Fund pending its final judgment.
(4) Finality of determination.--The judgment and decree of
the court shall be final, except that the same shall be subject
to review by the Supreme Court, as provided in section 1254 of
title 28, United States Code.
SEC. 303. EXCLUSIVE REVIEW.
(a) Exclusivity of Review.--An action of the <DELETED>Asbestos
Court</DELETED> United States Court of Asbestos Claims, the
Administrator, or the Asbestos Insurers Commission for which review
could have been obtained under section 301 or 302 shall not be subject
to judicial review in any other proceeding, including proceedings
before the <DELETED>Asbestos Court</DELETED> Court of Federal Claims.
(b) Constitutional Review.--
(1) In general.--Notwithstanding any other provision of
law, any interlocutory or final judgment, decree, or order of a
Federal court holding this Act, or any provision or application
thereof, unconstitutional shall be reviewable as a matter of
right by direct appeal to the Supreme Court.
(2) Period for filing appeal.--Any such appeal shall be
filed not more than 30 days after entry of such judgment,
decree, or order.
SEC. 304. PRIVATE RIGHT OF ACTION AGAINST REINSURERS.
(a) In General.--Any insurer participant may file a claim in the
United States District Court for the District of Columbia against any
reinsurer that is contractually obligated to reimburse such insurer
participant for a portion of costs incurred as a result of payment of
asbestos related claims.
(b) Expedited Procedures.--
(1) In general.--A claim filed under subsection (a) shall
be subject to expedited procedures, as prescribed by the United
States District Court for the District of Columbia.
(2) Evidentiary standard.--The plaintiff shall not recover
in a claim under subsection (a) unless the plaintiff
demonstrates the right to recover by a preponderance of the
evidence.
(3) Final judgment.--A final judgment shall be issued on a
claim filed under subsection (a) not later than 30 days after
such filing.
(c) Appeals.--
(1) In general.--An appeal from a decision under subsection
(b) may be filed with the Court of Appeals for the District of
Columbia.
(2) Standard of review.--The final judgment of the district
court shall be upheld unless the court of appeals finds the
judgment to be arbitrary and capricious.
(3) Final judgment.--A final judgment shall be issued on an
appeal filed under paragraph (1) not later than 30 days after
such filing.
TITLE IV--MISCELLANEOUS PROVISIONS
SEC. 401. FALSE INFORMATION.
<DELETED> Any person who knowingly provides false information in
connection with an assessment of contributions, a claim for an award,
or an audit under this Act shall be subject to--</DELETED>
<DELETED> (1) criminal prosecution under section 1001 of
title 18, United States Code; and</DELETED>
<DELETED> (2) civil penalties under section 3729 of title
31, United States Code.</DELETED>
(a) In General.--Chapter 63 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 1348. Fraud and false statements in connection with
participation in Asbestos Injury Claims Resolution Fund
``(a) Fraud Relating to Asbestos Injury Claims Resolution Fund.--
Whoever knowingly and willfully executes, or attempts to execute, a
scheme or artifice to defraud the Asbestos Insurers Commission or the
Office of Asbestos Injury Claims Resolution under title II of the
Fairness in Asbestos Injury Resolution Act of 2003 shall be fined under
this title or imprisoned not more than 20 years, or both.
``(b) False Statements Relating to Asbestos Injury Claims
Resolution Fund.--Whoever, in any matter involving the Asbestos
Insurers Commission or the Office of Asbestos Injury Claim Resolution,
knowingly and willfully--
``(1) falsifies, conceals, or covers up by any trick,
scheme, or device a material fact;
``(2) makes any materially false, fictitious, or fraudulent
statements or representations; or
``(3) makes or uses any false writing or document knowing
the same to contain any materially false, fictitious, or
fraudulent statement or entry,
in connection with the award of a claim or the assessment of
contributions under title I or II of the Fairness in Asbestos Injury
Resolution Act of 2003 shall be fined under this title or imprisoned
not more than 10 years, or both.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 63 of title 18, United States Code, is amended by adding at the
end the following:
``1348. Fraud and false statements in connection with participation in
Asbestos Injury Claims Resolution Fund.''.
SEC. 402. EFFECT ON BANKRUPTCY LAWS.
(a) No Automatic Stay.--Section 362(b) of title 11, United States
Code, is amended--
(1) in paragraph (17), by striking ``or'' at the end;
(2) in paragraph (18), by striking the period at the end
and inserting ``; or''; and
(3) by inserting after paragraph (18) the following:
``(19) under subsection (a) of this section of the
enforcement of any payment obligations under section 204 of the
Fairness in Asbestos Injury Resolution Act of 2003, 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 Contracts.--Section 365 of title 11,
United States Code, is amended by adding at the end the following:
``<DELETED>(q)</DELETED> (p) If a debtor is a participant (as that
term is defined in section 3 of the Fairness in Asbestos Injury
Resolution Act of 2003), 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 2003) 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 subtitle B of title II
of the Fairness in Asbestos Injury Resolution Act of 2003.''.
(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 2003) of the payment obligations that is a debtor under subtitle
B of 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 2003); 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
2003; 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 2003 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 2003 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') <DELETED>as
is required under section 202 of</DELETED> as established under
the Fairness in Asbestos Injury Resolution Act of 2003 if the
trust qualifies as a `trust' under section 201 of that Act.
``(2) Transfer of trust assets.--
``(A) In general.--Except as provided under
subparagraphs (B) and (C), 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 2003) shall be transferred to
the Fund not later than 6 months after the date of
enactment of the Fairness in Asbestos Injury Resolution
Act of 2003. 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 223 of such Act, including the payment of
claims for awards under such Act to beneficiaries of
the trust from which the assets were transferred. After
such transfer, each trustee of such trust shall have no
liability to any beneficiary of such trust.
``(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. Such reserved amount shall not be
greater than 3 percent of the total assets in the trust
and shall not be transferred to the Fund.
``(D) Sale of fund assets.--The investment
requirements under section 222 of the Fairness in
Asbestos Injury Resolution Act of 2003 shall not be
construed to require the Administrator of the Fund to
sell assets transferred to the Fund under subparagraph
(A).
``(E) Liquidated claims.--A trust shall not make
any payment relating to asbestos claims unless such
claims were liquidated in the ordinary course and the
normal and usual administration of the trust consistent
with past practices before the date of enactment of the
Fairness in Asbestos Injury Resolution Act of 2003.
``(3) Injunction.--Any injunction issued as part of the
formation of a trust described in paragraph (1) shall remain in
full force and effect <DELETED>until the assignment required
under paragraph (1) has been made</DELETED>.''.
(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 2003), the trustee may not avoid a
transfer made by the debtor pursuant to 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 2003), the plan provides for the continuation
after its effective date of payment of all payment obligations
under title II of that Act.''.
SEC. 403. EFFECT ON OTHER LAWS AND EXISTING CLAIMS.
(a) Effect on Federal and State Law.--The provisions of this Act
shall supersede any and all Federal and State laws insofar as they may
relate to any asbestos claim filed under this Act.
(b) Superseding Provisions.--
(1) In general.--Any agreement, understanding, or
undertaking by any person or affiliated group <DELETED>assigned
to Tiers II through VI</DELETED> with respect to the treatment
of any asbestos claim <DELETED>filed before the date of
enactment of this Act</DELETED> that requires future
performance by any party shall be superseded in its entirety by
this Act.
(2) No force or effect.--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 of the foregoing.
(c) Exclusive Remedy.--The remedies provided under this Act shall
be the exclusive remedy for any asbestos claim under any Federal or
State law.
(d) Bar on Asbestos Claims.--
(1) In general.--No asbestos claim may be pursued in any
Federal or State court, except for enforcement of claims for
which an order or judgment has been duly entered by a court
that is no longer subject to any appeal or judicial review
before the date of enactment of this Act.
(2) Preemption.--Any action asserting an asbestos claim in
a court of any State, except actions for which an order or
judgment has been duly entered by a court that is no longer
subject to any appeal or judicial review before the date of
enactment of this Act, is preempted by this Act.
(3) Dismissal.--No judgment other than a judgment of
dismissal may be entered in any such action, including an
action pending on appeal, or on petition or motion for
discretionary review, on or after the date of enactment of this
Act. A court may dismiss any such action on its motion. If the
district court denies the motion to dismiss, it shall stay
further proceedings until final disposition of any appeal taken
under this Act.
(4) Removal.--
(A) In general.--If an action under paragraph (2)
is 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) Jurisdiction.--The jurisdiction of the district
court shall be limited to--
(i) determining whether removal was proper;
and
(ii) ruling on a motion to dismiss based on
this Act.
(5) Determination.--
(A) In general.--Paragraphs (1), (2), (3), and (4)
shall not be effective until the Administrator
determines that the Fund is fully operational and
processing claims.
(B) Remedy under State law.--Any rights and
remedies relating to an asbestos claim shall be
available under State law until paragraphs (1), (2),
(3), and (4) become effective under subparagraph (A).
(C) Offset from contributions to fund.--A
participant's contributions to the Fund shall be
reduced by the amount of any claims made payable by the
operation of this paragraph after the date of enactment
of this Act.
SEC. 404. ANNUAL REPORT OF THE ADMINISTRATOR.
(1) In general.--The Administrator shall submit an annual
report to the Committee on the Judiciary of the House of
Representatives and the Committee on the Judiciary of the
Senate on the operation of the Asbestos Injury Claims
Resolution Fund within 6 months after the close of each fiscal
year.
(2) Contents of report.--The annual report submitted under
this subsection shall include--
(A) a summary of the claims made during the most
recent fiscal year, including--
(i) the number of claims made to the Fund
and a description of the types of medical
diagnoses and asbestos exposure underlying
those claims; and
(ii) the number of claims denied by the
Fund and a description of the types of medical
diagnoses and asbestos exposures underlying
those claims;
(B) a summary of the eligibility determinations
made by the Court of Federal Claims under section 113;
(C) a summary of the awards made from the Fund,
including the amount of the awards;
(D) a certification by the Administrator that, by
date of the filing of this Report, 95 percent or more
of the asbestos claimants who filed claims during the
prior calendar year, and who were determined to be
eligible to receive compensation under this Act, have
received the compensation for which they are entitled,
according to the terms of section 133 of this Act;
(E) a certification by the Administrator that, by
the date of the filing of this Report, 95 percent or
more of the total obligations of the Fund owed to
eligible claimants in the prior calendar year have been
paid;
(F) the identity of all participants and a summary
of the funding allocations of each participant,
including the amounts of all contributions;
(G) a summary of all financial hardship or inequity
adjustments applied for during the fiscal year, and a
summary of the adjustments that were made during the
fiscal year;
(H) a summary of the investments made under section
222(b);
(I) a summary of all referrals made to law
enforcement authorities under section 222(c), and of
any legal actions brought or penalties imposed under
section 224;
(J) an estimate of the number and types of claims,
the amount of awards, and the participant contributions
for the next fiscal year;
(K) any recommendations from the medical panel of
the Fund to improve the medical criteria requirements
or diagnostic provisions of the Fund;
(L) audits conducted under section 115;
(M) prosecutions under section 1348 of title 18,
United States Code; and
(N) any recommendations to improve the operation of
the Fund.
(3) Sunset of act if certifications not met.--
(A) If the Administrator fails to make the
certifications required in paragraph (2)(D) and (E),
above, as part of the required Annual Report, then the
Administrator shall have 90 days to remedy this
situation and to submit new certifications to the
Committee on the Judiciary of the House of
Representatives and the Committee on the Judiciary of
the Senate. If the Administrator fails to make the
required certifications by this later date, then the
Act, and all of its provisions and requirements, shall
sunset immediately.
(B) If the Act sunsets according to the terms of
subparagraph (A), then the applicable statute of
limitations for the filing of asbestos-related claims
shall be deemed tolled for any past or pending
claimants while they were pursuing claims through the
Asbestos Injury Claims Resolution Fund. For those
claimants who decide to pursue a claim in the
appropriate court, the applicable statute of
limitations shall apply, or the claimants shall have
two years from the date the Act sunsets to file a claim
in court, whichever is longer.
(C) If an asbestos claimant has received all or
part of the award for which he or she was determined to
be eligible under this Act, then any amount he or she
is awarded through a court action, or through
settlement negotiations, shall be reduced by the amount
the claimant has already received through the Asbestos
Injury Claims Resolution Fund.
SEC. 405. 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 may 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 may be construed to--
(1) create any obligation of funding from the United States
Government, other than the funding for personnel and support as
provided under subtitle A of title I; or
(2) obligate the United States Government to pay any award
or part of an award, if amounts in the Fund are inadequate.
SEC. 406. EFFECT ON INSURANCE AND REINSURANCE CONTRACTS.
(a) Erosion of Insurance Coverage Limits.--
(1) Definitions.--In this section, the following
definitions shall apply:
(A) 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.
(B) Scheduled assessment amounts.--The term
``scheduled assessment amounts'' means the future
contributions to the Fund assessed by the Administrator
from a defendant participant in the amount established
under sections 203 and 204.
(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 74.51
percent of each defendant participant's scheduled
assessment amount.
(B) Erosion upon contingent call.--If the
Administrator, under section 223(f), fails to certify
that there are adequate funds during any 3-year, 6-
year, or 1-year period of the mandatory funding period,
the resulting collective contingent payment obligations
to the Fund of the insurer participants shall be deemed
to erode remaining aggregate products limits available
to a defendant participant in an amount of 74.51
percent of the amount of the contingent call upon that
defendant participant for such period. For any 3-year,
6-year, or 1-year period, the amount of the contingent
call upon a defendant participant shall be the
difference between the contribution required for that
period and the contribution that would have been
required for that period if the reduction adjustment
under section 204(a) had been made. Erosion in
accordance with this paragraph shall be deemed to occur
at the time of the Administrator's notice to the
defendant participant under section 223(f)(3)(D)(ii).
(C) Erosion upon voluntary payments.--Payments by
insurer participants under section 223(g)(2) shall be
deemed at the time of payment to erode remaining
aggregate products limits available to a defendant
participant in an amount of 74.51 percent of the amount
of the voluntary payment requested of that defendant
participant, except that an insurer participant that
fails to make the voluntary payment requested by the
Administrator under section 223(g) shall not be
entitled to claim that payments to the Fund under
section 223(g) erode, exhaust, or otherwise limit that
insurer participant's insurance obligations. With
respect to any insurer participant that fails to make
the voluntary payment requested by the Administrator
under section 223(g), payments by a participant under
section 223(g) shall be considered amounts that
participant is legally obligated to pay as a result of
asbestos-related bodily injury.
(D) 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 or reinsurer's payments to
the Fund or the erosion deemed to occur under this
section.
(E) Policies without certain limits or with
exclusion.--Other than under subparagraph (G), 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.
(F) 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 74.51 percent of the scheduled assessment amount
of the single contribution assessed for the entire
affiliated group, and the total erosion of limits for
the affiliated group under paragraph (2) (B) or (C)
shall not exceed 74.51 percent of the single contingent
call amount or voluntary payment amount, respectively,
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 74.51 percent of the affiliated group's scheduled
assessment amount, contingent call amount, or voluntary
payment amount, as measured by the individual defendant
participant's percentage share of the affiliated
group's prior asbestos expenditures.
(G) Rule of construction.--Notwithstanding any
other provision of this section, nothing in the 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. In the event that 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 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) Payments by defendant participant.--Payments made by a
defendant participant shall be deemed to erode 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.
(5) 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.
(c) 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 from the date
of such modification.
(d) 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.
TITLE V--PROHIBITION OF ASBESTOS CONTAINING PRODUCTS
SEC. 501. PROHIBITION ON ASBESTOS CONTAINING PRODUCTS.
(a) In General.--Part I of title 18, United States Code, is amended
by inserting after chapter 39 the following:
``CHAPTER 39A--BAN OF ASBESTOS CONTAINING PRODUCTS
``Sec.
``838. Ban of asbestos containing products
``Sec. 838. 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) any of the minerals listed under
subparagraphs (A) through (H) 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, after consultation with the Assistant Attorney General for the
Environmental and Natural Resources Division of the United States
Department of Justice, promulgate--
``(1) not later than 1 year after the date of enactment of
this chapter, proposed regulations that--
``(A) prohibit persons from manufacturing,
processing, or distributing in commerce asbestos
containing products; and
``(B) provide for implementation of subsections (c)
and (d); and
``(2) not later than 2 years after the date of enactment of
this chapter, final regulations that, effective 60 days after
the date of promulgation, prohibit persons from manufacturing,
processing, or distributing in commerce asbestos containing
products.
``(c) Exemptions.--
``(1) In general.--Any person may petition the
Administrator for, and the Administrator may grant an exemption
from the requirements of subsection (b), if the Administrator
determines that--
``(A) the exemption would not result in an
unreasonable risk of injury to public health or the
environment; and
``(B) the person has made good faith efforts to
develop, but has been unable to develop, a substance,
or identify a mineral that does not present an
unreasonable risk of injury to public health or the
environment and may be substituted for an asbestos
containing product.
``(2) Terms and conditions.--An exemption granted under
this subsection shall be in effect for such period (not to
exceed 5 years) and subject to such terms and conditions as the
Administrator may prescribe.
``(3) Governmental use.--
``(A) In general.--The Administrator of the
Environmental Protection Agency shall provide an
exemption from the requirements of subsection (a),
without review or limit on duration, if such exemption
for an asbestos containing product is--
``(i) sought by the Secretary of Defense
and the Secretary certifies, and provides a
copy of that certification to Congress, that--
``(I) use of the asbestos
containing product is necessary to the
critical functions of the Department;
``(II) no reasonable alternatives
to the asbestos containing product
exist for the intended purpose; and
``(III) use of the asbestos
containing product will not result in
an unreasonable risk to health or the
environment; or
``(ii) sought by the Administrator of the
National Aeronautics and Space Administration
and the Administrator of the National
Aeronautics and Space Administration certifies,
and provides a copy of that certification to
Congress, that--
``(I) the asbestos containing
product is necessary to the critical
functions of the National Aeronautics
and Space Administration;
``(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 or 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 Amendment.--The table of chapters for
part I of title 18, United States Code, is amended by inserting after
the item relating to chapter 39 the following:
``39A. Ban of asbestos containing products.................. 838''.
Calendar No. 239
108th CONGRESS
1st Session
S. 1125
[Report No. 108-118]
_______________________________________________________________________
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.
_______________________________________________________________________
July 30 (legislative day, July 21), 2003
Reported with amendments