S 1125 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
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
Reported by Mr. HATCH, with amendments
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,
(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. [Struck out->] Purpose. [<-Struck
out] Findings and purpose.
Sec. 3. Definitions.
Asbestos [<-Struck
out] Federal ClaimsSec. 101. [Struck
out->] Establishment of
Asbestos
Court. [<-Struck out] United States Court of
Federal
Claims.
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.
Sec. 121. [Struck
out->] Essential
elements of
eligible asbestos claim. [<-Struck out] Medical
criteria
requirements.
[Struck out->] Sec. 122.
Diagnostic criteria
requirements. [<-Struck out]
[Struck out->] Sec. 123.
Latency criteria
requirements. [<-Struck out]
[Struck out->] Sec. 124.
Medical criteria
requirements. [<-Struck out]
[Struck out->] Sec. 125.
Exposure criteria
requirements. [<-Struck out]
Sec. 131. Amount.
Sec. 132. Medical monitoring.
Sec. 133. Payments.
Sec. 134. Reduction in benefit payments for collateral sources.
Sec. 141. En banc review.
Sec. 201. Definitions.
Sec. 202. Authority and tiers.
Sec. 203. Subtier assessments.
Sec. 204. Assessment administration.
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.
[Struck out->] Sec. 215.
Nonapplication of
FOIA and confidentiality of information. [<-Struck
out]
Sec. 215. Application of FOIA.
Sec. 216. Termination of Asbestos Insurers Commission.
[Struck out->] Sec. 217.
Authorization of
appropriations. [<-Struck out]
Sec. 217. Expenses and costs of the Commission.
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.
[Struck out->] Sec. 225.
Additional
contributing participants. [<-Struck out]
Sec. 301. Judicial
review of
decisions of the [Struck out->] Asbestos Court. [<-Struck
out] 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.
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.
Sec. 501. Prohibition on asbestos containing products.
SEC. 2. PURPOSE. [<-Struck out][Struck out->] 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. [<-Struck
out]
(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.
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).
[Struck out->] (2) ASBESTOS-
The term
`asbestos' includes-- [<-Struck out]
[Struck out->] (A) asbestos
chrysotile; [<-Struck
out]
[Struck out->] (B) asbestos
amosite; [<-Struck
out]
[Struck out->] (C) asbestos
crocidolite; [<-Struck
out]
[Struck out->] (D) asbestos
tremolite; [<-Struck
out]
[Struck out->] (E) asbestos
winchite; [<-Struck
out]
[Struck out->] (F) asbestos
richterite; [<-Struck
out]
[Struck out->] (G) asbestos
anthophyllite;
[<-Struck out]
[Struck out->] (H) asbestos
actinolite; [<-Struck
out]
(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.
[Struck out->] (5) ASBESTOS
COURT; COURT-
The terms `Asbestos Court' or `Court' means the United States Court of
Asbestos
Claims established under section 101. [<-Struck out]
[Struck out->] (6) [<-Struck
out] (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.
[Struck out->] (7) COLLATERAL
SOURCE- The
term `collateral source'-- [<-Struck out]
[Struck out->] (A) means all
collateral
sources, including-- [<-Struck out]
[Struck out->] (i) disability
insurance; [<-Struck
out]
[Struck out->] (ii) health
insurance; [<-Struck
out]
[Struck out->] (iii) medicare; [<-Struck
out]
[Struck out->] (iv) medicaid; [<-Struck
out]
[Struck out->] (v) death
benefit programs;
[<-Struck out]
[Struck out->] (vi) defendants;
[<-Struck
out]
[Struck out->] (vii) insurers
of
defendants; and [<-Struck out]
[Struck out->] (viii)
compensation trusts;
and [<-Struck out]
[Struck out->] (B) shall not
include life
insurance. [<-Struck out]
(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.
[Struck out->] (11)
PARTICIPANT- The term
`participant' means any person subject to the funding requirements of
title II,
including-- [<-Struck out]
[Struck out->] (A) any
defendant participant
subject to an assessment for contribution under subtitle A of that
title; and [<-Struck
out]
[Struck out->] (B) any insurer
participant
subject to an assessment for contribution under subtitle B of that
title. [<-Struck
out]
(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.
( [Struck out->] 14 [<-Struck
out] ) (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.
( [Struck out->] 15 [<-Struck
out] ) (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. [Struck out->] sections [<-Struck
out] 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.
Subtitle
A--United States
Court of Asbestos Claims [<-Struck out]
SEC. 101. ESTABLISHMENT OF ASBESTOS COURT. [<-Struck
out][Struck out->] (a) IN GENERAL-
Part I of
title 28, United States Code, is amended by inserting after chapter 7
the
following: [<-Struck out]
`CHAPTER 9--UNITED STATES COURT OF ASBESTOS CLAIMS [<-Struck
out] [Struck out->]
`Sec. [<-Struck out]
[Struck out->] `201.
Establishment of the
United States Court of Asbestos Claims. [<-Struck out]
[Struck out->] `202.
Magistrates. [<-Struck
out]
[Struck out->] `203. Retirement
of judges
of the United States Court of Asbestos Claims. [<-Struck
out]
`Sec. 201. Establishment of the United States Court of Asbestos Claims [<-Struck
out][Struck out->] `(a)
ESTABLISHMENT AND
APPOINTMENT OF JUDGES- [<-Struck out]
[Struck out->] `(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. [<-Struck out]
[Struck out->] `(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. [<-Struck
out]
[Struck out->] `(b) TERM;
REMOVAL;
COMPENSATION- [<-Struck out]
[Struck out->] `(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. [<-Struck
out]
[Struck out->] `(2) REMOVAL-
Judges may be
removed by the President only for good cause. [<-Struck
out]
[Struck out->] `(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. [<-Struck
out]
[Struck out->] `(c) CHIEF
JUDGE- [<-Struck
out]
[Struck out->] `(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. [<-Struck
out]
[Struck out->] `(2) TERM- The
chief judge
may continue to serve as such until-- [<-Struck out]
[Struck out->] `(A) he or she
reaches the
age of 70 years; [<-Struck out]
[Struck out->] `(B) another
judge is
designated as chief judge by the President; or [<-Struck
out]
[Struck out->] `(C) the
expiration of his
or her term under subsection (b)(1). [<-Struck out]
[Struck out->] `(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. [<-Struck
out]
[Struck out->] `(4) POWERS OF
CHIEF JUDGE-
The chief judge is authorized to-- [<-Struck out]
[Struck out->] `(A) prescribe
rules and
procedures for hearings and appeals of the Court of Asbestos Claims and
its
magistrates; [<-Struck out]
[Struck out->] `(B) appoint
magistrates; [<-Struck
out]
[Struck out->] `(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 [<-Struck
out]
[Struck out->] `(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. [<-Struck
out]
[Struck out->] `(d) TIME AND
PLACES OF
HOLDING COURT- [<-Struck out]
[Struck out->] `(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. [<-Struck
out]
[Struck out->] `(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. [<-Struck out]
[Struck out->] `(e) OFFICIAL
DUTY STATION;
RESIDENCE- [<-Struck out]
[Struck out->] `(1) DUTY
STATION- The
official duty station of each judge of the Court of Asbestos Claims is
the
District of Columbia. [<-Struck out]
[Struck out->] `(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. [<-Struck
out]
`Sec. 202. Magistrates [<-Struck out][Struck out->] `(a)
APPOINTMENT- The chief
judge shall appoint such magistrates as necessary to facilitate the
expeditious
processing of claims. [<-Struck out]
[Struck out->] `(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. [<-Struck
out]
[Struck out->] `(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. [<-Struck
out]
[Struck out->] `(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. [<-Struck
out]
`Sec. 203. Retirement of judges of the United States Court of Asbestos
Claims [<-Struck
out][Struck out->] `(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. [<-Struck out]
[Struck out->] `(b)
REGULATIONS- In
carrying out this section-- [<-Struck out]
[Struck out->] `(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 [<-Struck out]
[Struck out->] `(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.'. [<-Struck
out]
[Struck out->] (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: [<-Struck
out]
[Struck out->] `9. United
States Court of
Asbestos Claims.'. [<-Struck out]
(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.
(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 [Struck
out->] Asbestos Court [<-Struck
out] Court of Federal Claims for an award with respect to
such injury.
(2) RULES- The [Struck
out->] Asbestos Court [<-Struck
out] 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 [Struck
out->]
identity of any product or manufacturer, [<-Struck
out] 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; [Struck out->] and [<-Struck
out]
(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
[Struck out->] (8) [<-Struck
out] (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 [Struck out->]
Asbestos Court [<-Struck out] Court of Federal
Claims
under this section within [Struck out->] 2 [<-Struck
out] 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 [Struck
out->] 2 [<-Struck
out] 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.
[Struck out->] (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. [<-Struck
out]
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.
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.
(a) CLAIMS EXAMINERS-
(1) IN GENERAL- The
[Struck
out->]
Asbestos Court [<-Struck out] 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
[Struck out->]
magistrates [<-Struck out] special asbestos
masters
by conducting eligibility reviews of asbestos claims filed with the
Court.
(2) CRITERIA- The
[Struck
out->]
Asbestos Court [<-Struck out] 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
[Struck
out->]
Asbestos Court [<-Struck out] Court of Federal
Claims,
the Court shall refer such claim to [Struck out->] a magistrate [<-Struck
out] the Office of Special Asbestos Masters.
(c) INITIAL REVIEW-
(1) IN GENERAL- Under
the
direction of a [Struck out->] magistrate [<-Struck
out] 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
[Struck out->]
Asbestos Court [<-Struck out] Court of Federal
Claims
shall prescribe rules to expedite claims for asbestos claimants with
exigent
circumstances.
(e) AUDIT AND
PERSONNEL REVIEW
PROCEDURES- The [Struck out->] Asbestos Court [<-Struck
out] Court
of Federal Claims shall establish audit and personnel review
procedures
for evaluating the accuracy of eligibility recommendations of [Struck
out->] magistrates [<-Struck
out] special asbestos masters.
[Struck out->] (f) ELIGIBILITY
DETERMINATIONS- [<-Struck out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (g) DECISION OF
JUDGE- [<-Struck
out]
[Struck out->] (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. [<-Struck out]
[Struck out->] (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. [<-Struck out]
(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.
[Struck out->] (h) AWARDING OF
COMPENSATION- [<-Struck out]
[Struck out->] (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. [<-Struck out]
[Struck out->] (2) CLAIM
EXTINGUISHED- The
acceptance of a payment under this Act shall extinguish all claims
related to
such payment. [<-Struck out]
(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.
(a) DEVELOPMENT- The
[Struck
out->]
Asbestos Court [<-Struck out] 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
[Struck
out->]
Asbestos Court [<-Struck out] 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 [Struck out->] magistrates [<-Struck
out] 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 [Struck out->] Asbestos Court [<-Struck
out] 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.
(a) ESTABLISHMENT- The
[Struck
out->]
Asbestos Court [<-Struck out] 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 [Struck out->] Asbestos Court [<-Struck
out] 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.
SEC. 121. ESSENTIAL ELEMENTS OF ELIGIBLE ASBESTOS CLAIM. [<-Struck
out][Struck out->] To be eligible
for an award
under this title for an asbestos-related injury, an individual shall-- [<-Struck
out]
[Struck out->] (1) file an
asbestos claim
under this title in a timely manner; and [<-Struck
out]
[Struck out->] (2) prove, by a
preponderance of the evidence that-- [<-Struck out]
[Struck out->] (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 [<-Struck out]
[Struck out->] (B) the claimant
meets the
latency criteria requirements described in section 123 and the exposure
criteria requirements described in section 125. [<-Struck
out]
SEC. 122. DIAGNOSTIC CRITERIA REQUIREMENTS. [<-Struck
out][Struck out->] (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. [<-Struck
out]
[Struck out->] (b) DIAGNOSIS- A
medical
diagnosis meets the requirements of this section if the diagnosis-- [<-Struck
out]
[Struck out->] (1) is made by a
physician
who-- [<-Struck out]
[Struck out->] (A) treated, or
is
treating, the claimant; [<-Struck out]
[Struck out->] (B) conducted an
in-person
medical examination of the claimant; and [<-Struck
out]
[Struck out->] (C) is licensed
to practice
medicine in the State in which the examination occurred and in which
the
diagnosis is rendered; [<-Struck out]
[Struck out->] (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; [<-Struck out]
[Struck out->] (3) is
independently
verified with respect to the duration, proximity, regularity, and
intensity of
the asbestos exposure involved; and [<-Struck out]
[Struck out->] (4) has excluded
other more
likely causes of the injury of the claimant. [<-Struck
out]
[Struck out->] (c) RESULTS OF
MEDICAL
EXAMINATIONS AND TESTS- [<-Struck out]
[Struck out->] (1) IN GENERAL-
In making
the demonstration required under subsection (a), an asbestos claimant
shall
submit-- [<-Struck out]
[Struck out->] (A) x-rays
(including both
films and B-reader reports); [<-Struck out]
[Struck out->] (B) detailed
results of
pulmonary function tests (including spirometric tracings); [<-Struck
out]
[Struck out->] (C) laboratory
tests; and [<-Struck
out]
[Struck out->] (D) the results
of medical
examination or reviews of other medical evidence. [<-Struck
out]
[Struck out->] (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. [<-Struck out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (f) RULES- The
Asbestos
Court shall prescribe rules to implement the diagnostic criteria
requirements
to be used in applying this section. [<-Struck out]
SEC. 123. LATENCY CRITERIA REQUIREMENTS. [<-Struck
out][Struck out->] (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-- [<-Struck out]
[Struck out->] (1) in a manner
that meets
the exposure requirements of sections 124 and 125; [<-Struck
out]
[Struck out->] (2) within the
United
States or its territories or possessions; and [<-Struck
out]
[Struck out->] (3) for at least
10 years
before the initial diagnosis of any asbestos-related injury. [<-Struck
out]
[Struck out->] (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.
[<-Struck
out]
[Struck out->] (c) VARIATIONS
IN LATENCY
PERIODS- Latency periods under this section may vary based on the
eligible
disease or condition involved. [<-Struck out]
[Struck out->] (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. [<-Struck
out]
SEC. 124. MEDICAL CRITERIA REQUIREMENTS. [<-Struck
out][Struck out->] (a) DEFINITIONS-
In this
section, the following definitions shall apply: [<-Struck
out]
[Struck out->] (1) BILATERAL
ASBESTOS-RELATED
NONMALIGNANT DISEASE- The term `bilateral asbestos-related nonmalignant
disease' means a diagnosis of bilateral asbestos-related nonmalignant
disease
based on-- [<-Struck out]
[Struck out->] (A) an x-ray
reading of 1/0
or higher on the ILO scale; or [<-Struck out]
[Struck out->] (B) an x-ray
showing
bilateral pleural plaques or pleural thickening, bilateral interstitial
fibrosis, or bilateral interstitial markings. [<-Struck
out]
[Struck out->] (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 1/4 of the projection of the lateral chest
wall. [<-Struck
out]
[Struck out->] (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. [<-Struck out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (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). [<-Struck
out]
[Struck out->] (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. [<-Struck out]
[Struck out->] (A) handled raw
asbestos
fibers on a regular basis; [<-Struck out]
[Struck out->] (B) fabricated
asbestos-containing products so that the claimant in the fabrication
process
was exposed on a regular basis to raw asbestos fibers; [<-Struck
out]
[Struck out->] (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 [<-Struck
out]
[Struck out->] (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). [<-Struck out]
[Struck out->] (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-- [<-Struck out]
[Struck out->] (9) TLC- The
term `TLC'
means total lung capacity, which is the volume of air in the lung after
maximal
inspiration. [<-Struck out]
[Struck out->] (b) REQUIREMENT-
To be
eligible for an award or medical monitoring reimbursement under this
title, a [<-Struck
out]
[Struck out->]
claimant shall establish that the claimant meets the medical criteria
for 1 of
the following categories: [<-Struck out]
[Struck out->] (1) For Level I:
Asymptomatic Exposure, the claimant shall provide-- [<-Struck
out]
[Struck out->] (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 [<-Struck
out]
[Struck out->] (B) meaningful
and credible
evidence of 6 months of occupational exposure to asbestos before
December 31,
1982. [<-Struck out]
[Struck out->] (2) For Level
II:
Asbestosis/Pleural Disease A, the claimant shall provide-- [<-Struck
out]
[Struck out->] (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 [<-Struck
out]
[Struck out->] (B) meaningful
and credible
evidence of-- [<-Struck out]
[Struck out->] (i) 6 months of
occupational exposure to asbestos before December 31, 1982; and [<-Struck
out]
[Struck out->] (ii) significant
occupational exposure. [<-Struck out]
[Struck out->] (3) For Level
III:
Asbestosis/Pleural Disease B, the claimant shall provide-- [<-Struck
out]
[Struck out->] (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; [<-Struck out]
[Struck out->] (B) pulmonary
function
testing that shows-- [<-Struck out]
[Struck out->] (i) TLC less
than 80
percent of predicted; or [<-Struck out]
[Struck out->] (ii) FVC less
than 80
percent of predicted, and a FEV1/FVC ratio of not less than 65 percent;
[<-Struck
out]
[Struck out->] (C) meaningful
and credible
evidence of-- [<-Struck out]
[Struck out->] (i) 6 months of
occupational exposure to asbestos before December 31, 1982; and [<-Struck
out]
[Struck out->] (ii) significant
occupational exposure; and [<-Struck out]
[Struck out->] (D) supporting
medical
documentation establishing asbestos exposure as a contributing factor
in
causing the pulmonary condition in question. [<-Struck
out]
[Struck out->] (4) For Level
IV: Severe
Asbestosis, the claimant shall provide-- [<-Struck
out]
[Struck out->] (A) a diagnosis
that meets
the requirements of section 122 of asbestosis by B-reader certified
chest
x-rays of ILO Grade 2/1 or greater, or by pathological evidence of
asbestosis; [<-Struck
out]
[Struck out->] (B) pulmonary
function
testing that shows-- [<-Struck out]
[Struck out->] (i) TLC less
than 65
percent of predicted; or [<-Struck out]
[Struck out->] (ii) FVC less
than 65
percent of predicted, and a FEV1/FVC ratio greater than 65 percent; [<-Struck
out]
[Struck out->] (C) meaningful
and credible
evidence of-- [<-Struck out]
[Struck out->] (i) 6 months of
occupational exposure to asbestos before December 31, 1982; and [<-Struck
out]
[Struck out->] (ii) significant
occupational exposure; and [<-Struck out]
[Struck out->] (D) supporting
medical
documentation establishing asbestos exposure as a contributing factor
in
causing the pulmonary condition in question. [<-Struck
out]
[Struck out->] (5) For Level V:
Other
Cancer, the claimant shall provide-- [<-Struck out]
[Struck out->] (A) a diagnosis
that meets
the requirements of section 122 of a primary laryngeal, esophageal,
pharyngeal,
or stomach cancer; [<-Struck out]
[Struck out->] (B) evidence of
an
underlying bilateral asbestos-related nonmalignant disease; [<-Struck
out]
[Struck out->] (C) meaningful
and credible
evidence of-- [<-Struck out]
[Struck out->] (i) 6 months of
occupational exposure to asbestos before December 31, 1982; and [<-Struck
out]
[Struck out->] (ii) significant
occupational exposure; and [<-Struck out]
[Struck out->] (D) supporting
medical
documentation establishing asbestos exposure as a contributing factor
in
causing the other cancer in question. [<-Struck out]
[Struck out->] (6) For Level
VI: Lung
Cancer One, the claimant shall provide-- [<-Struck
out]
[Struck out->] (A) a diagnosis
that meets
the requirements of section 122 of a primary lung cancer; [<-Struck
out]
[Struck out->] (B) meaningful
and credible
evidence of 6 months of occupational exposure to asbestos before
December 31,
1982; and [<-Struck out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (7) For Level
VII: Lung
Cancer Two, the claimant shall provide-- [<-Struck
out]
[Struck out->] (A) a diagnosis
that meets
the requirements of section 122 of a primary lung cancer; [<-Struck
out]
[Struck out->] (B) evidence of
an
underlying bilateral asbestos-related nonmalignant disease; [<-Struck
out]
[Struck out->] (C) meaningful
and credible
evidence of-- [<-Struck out]
[Struck out->] (i) 6 months of
occupational exposure to asbestos before December 31, 1982; and [<-Struck
out]
[Struck out->] (ii) significant
occupational exposure; and [<-Struck out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (8) For Level
VIII:
Mesothelioma, the claimant shall provide-- [<-Struck
out]
[Struck out->] (A) a diagnosis
that meets
the requirements of section 122 of mesothelioma; and [<-Struck
out]
[Struck out->] (B) meaningful
and credible
evidence of exposure to asbestos before December 31, 1982. [<-Struck
out]
SEC. 125. EXPOSURE CRITERIA REQUIREMENTS. [<-Struck
out][Struck out->] (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-- [<-Struck out]
[Struck out->] (1) the claimant
meets the
minimum exposure requirements under this subtitle; and [<-Struck
out]
[Struck out->] (2) such
exposure to
asbestos occurred within the United States, its territories, or
possessions. [<-Struck
out]
[Struck out->] (b) BURDEN OF
PROOF- [<-Struck
out]
[Struck out->] (1) IN GENERAL-
An asbestos
claimant has the burden of demonstrating meaningful and credible
exposure to
asbestos for purposes of this subtitle. [<-Struck out]
[Struck out->] (2) EVIDENCE-
The
demonstration under paragraph (1) may be established by-- [<-Struck
out]
[Struck out->] (A) an affidavit
submitted
by the claimant, a coworker of the claimant, or a family member, in the
case of
a deceased claimant; [<-Struck out]
[Struck out->] (B) employment
records; [<-Struck
out]
[Struck out->] (C) invoices; [<-Struck
out]
[Struck out->] (D) construction
or other
similar records; or [<-Struck out]
[Struck out->] (E) other
credible
evidence. [<-Struck out]
[Struck out->] (c) RULES- [<-Struck
out]
[Struck out->] (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. [<-Struck out]
[Struck out->] (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. [<-Struck out]
(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.
(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 [Struck out->]
124 [<-Struck out] 121, [Struck out->] other than an
injury
described in paragraph (2), [<-Struck out] shall be
eligible
for an award according to the following schedule:
[Struck out->][<-Struck out]
---------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------------
[Struck out->] [<-Struck out] Level Scheduled Condition or Disease Scheduled Value
[Struck out->] [<-Struck out]
[Struck out->] [<-Struck out] I Asymptomatic Exposure $0
[Struck out->] [<-Struck out] II Asbestosis/Pleural Disease A $0
[Struck out->] [<-Struck out] III Asbestosis/Pleural Disease B $40,000
[Struck out->] [<-Struck out] IV Severe Asbestosis $400,000
[Struck out->] [<-Struck out] V Other Cancer $200,000
[Struck out->] [<-Struck out] VI Lung Cancer I $0 or $50,000
[Struck out->] [<-Struck out] VII Lung Cancer II $100,000 or $400,000
[Struck out->] [<-Struck out] VIII Mesothelioma $750,000
---------------------------------------------------------------------------------------------------------------------------------------
[Struck out->] (2) SCHEDULED
VALUES FOR
LEVELS VI AND VII- [<-Struck out]
[Struck out->] (A) DEFINITION-
In this paragraph,
the term `nonsmoker' means a claimant who-- [<-Struck
out]
[Struck out->] (i) never
smoked; or [<-Struck
out]
[Struck out->] (ii) has not
smoked during
any portion of the 12-year period preceding the diagnosis of the lung
cancer. [<-Struck
out]
[Struck out->] (B) SCHEDULED
VALUES- In
accordance with subsection (a), a claimant-- [<-Struck
out]
[Struck out->] (i) who is a
nonsmoker
shall receive-- [<-Struck out]
[Struck out->] (I) $50,000 for
Level VI;
and [<-Struck out]
[Struck out->] (II) $400,000
for Level
VII; and [<-Struck out]
[Struck out->] (ii) who is not
a nonsmoker
shall receive-- [<-Struck out]
[Struck out->] (I) $0 for Level
VI; and [<-Struck
out]
[Struck out->] (II) $100,000
for Level
VII. [<-Struck out]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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 Disease smokers receive between $125,000-$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.
[Struck out->] (3) [<-Struck
out] (4) MEDICAL MONITORING- An asbestos claimant with
asymptomatic
exposure [Struck out->]
or asbestosis/pleural disease A [<-Struck out] ,
based on the
criteria under section [Struck out->] 124(b)(1) [<-Struck
out] 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.
(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.
(a) STRUCTURED PAYMENTS-
(1) IN GENERAL- An
asbestos
claimant who is entitled to an award [Struck out->] shall [<-Struck
out] should receive the amount of the award through
structured
payments from the Fund, made over a period of [Struck out->] not less than [<-Struck
out] 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.
[Struck out->] (d) TREATMENT
FOR INTERNAL
REVENUE PURPOSES [<-Struck out] - [Struck out->] 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. [<-Struck out]
[Struck out->] (e) [<-Struck
out] (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).
(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 [Struck
out->] that the
claimant received,
or is entitled to receive, for the asbestos-related injury that is the
subject
of the compensation [<-Struck out] .
(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.
(a) IN GENERAL-
(1) EN BANC PANELS- The
chief
judge of the [Struck out->] Asbestos Court [<-Struck
out] 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.
[Struck out->] (2) RANDOM
ASSIGNMENT OF
PANELS- In carrying out paragraph (1), the chief judge shall-- [<-Struck
out]
[Struck out->] (A) except as
necessary to
effectuate subparagraph (B), assign judges to panels randomly; and [<-Struck
out]
[Struck out->] (B) assign
appeals to
panels in a manner that results in no judge reviewing a decision made
by that judge.
[<-Struck out]
[Struck out->] (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. [<-Struck out]
(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.
[Struck out->] (b) DE NOVO
REVIEW- An
Asbestos Court panel shall provide a de novo review of the magistrate's
determination and the judge's decision. [<-Struck out]
(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- [Struck out->] An Asbestos
Court [<-Struck out] A Court
of Federal Claims panel shall apply the Federal Rules of Appellate
Procedures to all proceedings before the panel.
(e) DECISION OF PANEL-
[Struck
out->] An
Asbestos Court [<-Struck out] 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.
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.
[Struck out->] (2) [<-Struck
out] (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.
[Struck out->] (3) [<-Struck
out] (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.
[Struck out->] (4) [<-Struck
out] (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.
[Struck out->] (5) [<-Struck
out] (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.
[Struck out->] (6) [<-Struck
out] (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.
[Struck out->] (7) [<-Struck
out] (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, [Struck out->] for any purpose,
including
administering and paying asbestos claims [<-Struck
out] in
whole or in part to provide compensation for asbestos claims.
[Struck out->] (8) [<-Struck
out] (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.
(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 [Struck out->] $45,000,000,000 [<-Struck
out] $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
[Struck out->] (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. [<-Struck out]
(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.
[Struck out->] (2) [<-Struck
out] (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.
[Struck out->] (3) [<-Struck
out] (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.
[Struck out->] (4) [<-Struck
out] (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.
(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,
[Struck
out->] 1.5005
[<-Struck out] 1.5184 percent of the
debtor's 2002
revenues.
(ii) Years 6 through 8,
[Struck
out->] 1.3504
[<-Struck out] 1.3666 percent of the
debtor's 2002
revenues.
(iii) Years 9 through
11, [Struck
out->] 1.2154
[<-Struck out] 1.2147 percent of the
debtor's 2002
revenues.
(iv) Years 12 through
14, [Struck
out->] 1.0938
[<-Struck out] 1.0629 percent of the
debtor's 2002
revenues.
(v) Years 15 through 17,
[Struck
out->] .9845 [<-Struck
out] .9111 percent of the debtor's 2002 revenues.
(vi) Years 18 through
20, [Struck
out->] .8860 [<-Struck
out] .7592 percent of the debtor's 2002 revenues.
(vii) Years 21 through
[Struck
out->] 23 [<-Struck
out] 26, [Struck out->] .7974 [<-Struck
out] .6074
percent of the debtor's 2002 revenues.
[Struck out->] (viii) Years 24
through 26,
.7177 percent of the debtor's 2002 revenues. [<-Struck
out]
[Struck out->] (ix) [<-Struck
out] (viii) Year 27, [Struck out->] .1794 [<-Struck
out] .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) [Struck out->] SUBTIER [<-Struck
out] 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.
(a) REDUCTION
ADJUSTMENTS- Subject
to section 223(f), [Struck out->] The [<-Struck
out] 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- [Struck
out->] A [<-Struck
out] 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, [Struck out->] 3 [<-Struck
out] 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-
[Struck out->] (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. [<-Struck out]
(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.
[Struck out->] (B) [<-Struck
out] (C) TERM- Subject to the annual availability of funds in
the
Orphan Share Reserve Account established under section 223( [Struck
out->] e [<-Struck
out] h), an inequity adjustment granted by the Administrator
under
this subsection shall remain in effect [Struck out->] for the life of
the Fund [<-Struck
out] for a term of 3 years.
[Struck out->] (C) [<-Struck
out] (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 [Struck out->]
2 [<-Struck out] 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 [Struck out->] this subtitle [<-Struck
out] 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.
[Struck out->] (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. [<-Struck out]
(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.
Subtitle
B--Asbestos
Insurers Commission [<-Struck out]
SEC. 211. ESTABLISHMENT OF ASBESTOS INSURERS COMMISSION. [<-Struck
out][Struck out->] (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. [<-Struck
out]
[Struck out->] (b) MEMBERSHIP- [<-Struck
out]
[Struck out->] (1) APPOINTMENT-
The
Commission shall be composed of 5 members who shall be appointed by the
President, after consultation with-- [<-Struck out]
[Struck out->] (A) the majority
leader of
the Senate; [<-Struck out]
[Struck out->] (B) the minority
leader of
the Senate; [<-Struck out]
[Struck out->] (C) the Speaker
of the
House of Representatives; and [<-Struck out]
[Struck out->] (D) the minority
leader of
the House of Representatives. [<-Struck out]
[Struck out->] (2)
QUALIFICATIONS- [<-Struck
out]
[Struck out->] (A) EXPERTISE-
Members of
the Commission shall have sufficient expertise to fulfill their
responsibilities under this subtitle. [<-Struck out]
[Struck out->] (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. [<-Struck out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (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. [<-Struck out]
[Struck out->] (4) PERIOD OF
APPOINTMENT-
Members shall be appointed for the life of the Commission. [<-Struck
out]
[Struck out->] (5) VACANCIES-
Any vacancy
in the Commission shall be filled in the same manner as the original
appointment. [<-Struck out]
[Struck out->] (6) CHAIRMAN-
The
Commission shall select a Chairman from among its members. [<-Struck
out]
[Struck out->] (c) MEETINGS- [<-Struck
out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (2) SUBSEQUENT
MEETINGS-
The Commission shall meet at the call of the Chairman as necessary to
accomplish the duties under section 212. [<-Struck
out]
[Struck out->] (3) QUORUM- No
business may
be conducted or hearings held without the participation of all of the
members
of the Commission. [<-Struck out]
SEC. 212. DUTIES OF ASBESTOS INSURERS COMMISSION. [<-Struck
out][Struck out->] (a)
DETERMINATION OF
INSURER LIABILITY FOR ASBESTOS INJURIES- [<-Struck
out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (2) ALLOCATION
AGREEMENT- [<-Struck
out]
[Struck out->] (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-- [<-Struck out]
[Struck out->] (i) the
Commission; [<-Struck
out]
[Struck out->] (ii) the
Committee on the
Judiciary of the Senate; and [<-Struck out]
[Struck out->] (iii) the
Committee on the
Judiciary of the House of Representatives. [<-Struck
out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (3) GENERAL
PROVISIONS- [<-Struck
out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (4) ASSESSMENT
CRITERIA- [<-Struck
out]
[Struck out->] (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. [<-Struck out]
[Struck out->] (B) PARTICIPANT
TIERS-
Contributions shall be determined by assigning mandatory insurer
participants
into tiers, which shall be determined and defined based on-- [<-Struck
out]
[Struck out->] (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; [<-Struck
out]
[Struck out->] (ii) net paid
losses for
asbestos injuries compared to all such losses for the insurance
industry; [<-Struck
out]
[Struck out->] (iii) net
carried reserve
level for asbestos claims on the most recent financial statement of the
insurer
participant; and [<-Struck out]
[Struck out->] (iv) future
liability. [<-Struck
out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (b) PROCEDURE- [<-Struck
out]
[Struck out->] (1) NOTICE TO
PARTICIPANTS-
Not later than 30 days after the initial meeting of the Commission, the
Commission shall-- [<-Struck out]
[Struck out->] (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 [<-Struck out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (2) RESPONSE
REQUIRED- [<-Struck
out]
[Struck out->] (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-- [<-Struck out]
[Struck out->] (i) 30 days
after the
receipt of direct notice; or [<-Struck out]
[Struck out->] (ii) 30 days
after the
publication of notice in the Federal Register. [<-Struck
out]
[Struck out->] (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. [<-Struck out]
[Struck out->] (3) NOTICE OF
INITIAL
DETERMINATION- [<-Struck out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (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. [<-Struck out]
[Struck out->] (4) REVIEW
PERIOD- [<-Struck
out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (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). [<-Struck
out]
[Struck out->] (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. [<-Struck out]
[Struck out->] (6) NOTICE OF
FINAL
DETERMINATION- [<-Struck out]
[Struck out->] (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. [<-Struck out]
[Struck out->] (B) JUDICIAL
REVIEW- A
participant has a right to obtain judicial review of the Commission's
final
determination under title III. [<-Struck out]
[Struck out->] (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). [<-Struck out]
[Struck out->] (d) REPORT- [<-Struck
out]
[Struck out->] (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--
[<-Struck out]
[Struck out->] (A) the
Committee on the
Judiciary of the Senate; [<-Struck out]
[Struck out->] (B) the
Committee on the
Judiciary of the House of Representatives; and [<-Struck
out]
[Struck out->] (C) the Court of
Asbestos
Claims. [<-Struck out]
[Struck out->] (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. [<-Struck out]
SEC. 213. POWERS OF ASBESTOS INSURERS COMMISSION. [<-Struck
out][Struck out->] (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. [<-Struck out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (d) GIFTS- The
Commission
may not accept, use, or dispose of gifts or donations of services or
property. [<-Struck
out]
SEC. 214. PERSONNEL MATTERS. [<-Struck out][Struck out->] (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. [<-Struck
out]
[Struck out->] (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. [<-Struck out]
[Struck out->] (c) STAFF- [<-Struck
out]
[Struck out->] (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. [<-Struck out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (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. [<-Struck out]
[Struck out->] (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. [<-Struck
out]
SEC. 215. NONAPPLICATION OF FOIA AND CONFIDENTIALITY OF INFORMATION. [<-Struck
out][Struck out->] (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. [<-Struck
out]
[Struck out->] (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. [<-Struck out]
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.
(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.
(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.
(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.
(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.
(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.
SEC. 216. TERMINATION OF ASBESTOS INSURERS COMMISSION. [<-Struck
out][Struck out->] The Commission
shall
terminate 60 days after the date on which the Commission submits its
report
under section 212(c). [<-Struck out]
SEC. 217. AUTHORIZATION OF APPROPRIATIONS. [<-Struck
out][Struck out->] (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. [<-Struck
out]
[Struck out->] (b)
AVAILABILITY- Any sums
appropriated under the authorization contained in this section shall
remain
available, without fiscal year limitation, until expended. [<-Struck
out]
The Commission shall terminate 60 days after the date on which the Commission submits its report under section 212(c).
All expenses and costs of the Commission shall be paid from the Fund.
(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.
(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 [Struck out->] section 6(a) of [<-Struck
out] the Toxic Substances Control Act (15 U.S.C. [Struck out->] 2605(a) [<-Struck
out] 2601 et seq.), relating to the manufacture, importation,
processing,
disposal and distribution in commerce of asbestos-containing
products, the
Administrator [Struck out->] may refer the
matter [<-Struck out] 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 [Struck
out->] under section
16(a) of the
Toxic Substances Control Act (15 U.S.C. 2615(a)) [<-Struck
out] , 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 [Struck out->] section 112(d)
of [<-Struck
out] the Clean Air Act (42 U.S.C. [Struck out->] 7412(d) [<-Struck
out] 7401 et seq.), relating to asbestos as a hazardous air
pollutant,
the Administrator [Struck out->] may refer the
matter [<-Struck
out] 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 [Struck out->] 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)).
[<-Struck
out] 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.
(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) [Struck out->] LIMITATIONS ON [<-Struck
out] 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).
[Struck out->] (e) [<-Struck
out] (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
[Struck out->]
maximum [<-Struck out] 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.
(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-
[Struck out->] (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-- [<-Struck
out]
[Struck out->] (A) enforce such
liability
and the lien of the United States under this section; or [<-Struck
out]
[Struck out->] (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. [<-Struck
out]
[Struck out->] (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. [<-Struck out]
(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.
SEC. 225. ADDITIONAL CONTRIBUTING PARTICIPANTS. [<-Struck
out][Struck out->] (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. [<-Struck
out]
[Struck out->] (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. [<-Struck out]
[Struck out->] (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. [<-Struck out]
ASBESTOS COURT [<-Struck
out] UNITED STATES COURT OF ASBESTOS CLAIMS.(a) EXCLUSIVE
JURISDICTION- [Struck
out->] The
United States Court of Appeals for the District of Columbia [<-Struck
out] The United States Court of Appeals for the Federal Circuit
shall
have exclusive jurisdiction over any action to review a final decision
of the
[Struck out->]
Asbestos Court [<-Struck out] 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 [Struck out->] Asbestos Court [<-Struck
out] 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 [Struck out->] Asbestos Court [<-Struck
out] United
States Court of Asbestos Claims, and the [Struck out->] Asbestos Court [<-Struck
out] 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 [Struck out->] Asbestos Court [<-Struck
out] 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 [Struck out->] Asbestos Court [<-Struck
out] United States Court of Asbestos Claims is arbitrary and
capricious, the court shall remand the case to the [Struck out->] Asbestos Court [<-Struck
out] United States Court of Asbestos Claims.
(4) FINALITY OF
DETERMINATION- The
decision of the [Struck out->] United States
Court of Appeals for the District of
Columbia [<-Struck out] 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.
(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.
(a) EXCLUSIVITY OF
REVIEW- An
action of the [Struck out->] Asbestos Court [<-Struck
out] 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 [Struck out->] Asbestos Court [<-Struck
out] 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.
(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.
[Struck out->] 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-- [<-Struck
out]
[Struck out->] (1) criminal
prosecution
under section 1001 of title 18, United States Code; and [<-Struck
out]
[Struck out->] (2) civil
penalties under
section 3729 of title 31, United States Code. [<-Struck
out]
(a) IN GENERAL- Chapter 63 of title 18, United States Code, is amended by adding at the end the following:
`(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.'.
(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:
` [Struck out->] (q) [<-Struck
out] (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') [Struck
out->] as is
required under section 202 of [<-Struck out] 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 [Struck out->] until the
assignment required under
paragraph (1) has been made [<-Struck out] .'.
(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.'.
(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 [Struck
out->]
assigned to Tiers II through VI [<-Struck out] with
respect to
the treatment of any asbestos claim [Struck out->] filed before the
date of
enactment of this Act [<-Struck out] 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.
(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.
(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.
(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.
(a) IN GENERAL- Part I of title 18, United States Code, is amended by inserting after chapter 39 the following:
`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:
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.
Reported
with
amendments
END