II 

Calendar No. 131 

109TH CONGRESS 

1ST SESSION S. 852 

To create a fair and efficient system to resolve claims of victims for bodily 

injury caused by asbestos exposure, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 19, 2005 

Mr. SPECTER (for himself, Mr. LEAHY, Mr. HATCH, Mrs. FEINSTEIN, Mr. 

GRASSLEY, Mr. DEWINE, Mr. BAUCUS, Mr. VOINOVICH, Mr. VITTER, 

and Mr. GRAHAM) introduced the following bill; which was read twice and 

referred to the Committee on the Judiciary 

JUNE 16, 2005 

Reported by Mr. SPECTER, with amendments 

[Omit the part struck through and insert the part printed in italic] 

A BILL 

To create a fair and efficient system to resolve claims of 

victims for bodily injury caused by asbestos exposure, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 
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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

2 (a) SHORT TITLE.—This Act may be cited as the 

3 ‘‘Fairness in Asbestos Injury Resolution Act of 2005’’ or 

4 the ‘‘FAIR Act of 2005’’. 

5 (b) TABLE OF CONTENTS.—The table of contents of 

6 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Findings and purpose. 

Sec. 3. Definitions. 

TITLE I—ASBESTOS CLAIMS RESOLUTION 

Subtitle A—Office of Asbestos Disease Compensation 

Sec. 101. Establishment of Office of Asbestos Disease Compensation. 

Sec. 102. Advisory Committee on Asbestos Disease Compensation. 

Sec. 103. Medical Advisory Committee. 

Sec. 104. Claimant assistance. 

Sec. 105. Physicians Panels. 

Sec. 106. Program startup. 

Sec. 107. Authority of the Administrator. 

Subtitle B—Asbestos Disease Compensation Procedures 

Sec. 111. Essential elements of eligible claim. 

Sec. 112. General rule concerning no-fault compensation. 

Sec. 113. Filing of claims. 

Sec. 114. Eligibility determinations and claim awards. 

Sec. 115. Medical evidence auditing procedures. 

Subtitle C—Medical Criteria 

Sec. 121. Medical criteria requirements. 

Subtitle D—Awards 

Sec. 131. Amount. 

Sec. 132. Medical monitoring. 

Sec. 133. Payment. 

Sec. 134. Reduction in benefit payments for collateral sources. 

Sec. 134. Setoffs for collateral source compensation and prior awards. 

Sec. 135. Certain claims not affected by payment of awards. 

TITLE II—ASBESTOS INJURY CLAIMS RESOLUTION FUND 

Subtitle A—Asbestos Defendants Funding Allocation 

Sec. 201. Definitions. 

Sec. 202. Authority and tiers. 

Sec. 203. Subtiers. 

Sec. 204. Assessment administration. 
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Sec. 205. Stepdowns and funding holidays. 

Sec. 206. Accounting treatment. 

Subtitle B—Asbestos Insurers Commission 

Sec. 210. Definition. 

Sec. 211. Establishment of Asbestos Insurers Commission. 

Sec. 212. Duties of Asbestos Insurers Commission. 

Sec. 213. Powers of Asbestos Insurers Commission. 

Sec. 214. Personnel matters. 

Sec. 215. Termination of Asbestos Insurers Commission. 

Sec. 216. Expenses and costs of Commission. 

Subtitle C—Asbestos Injury Claims Resolution Fund 

Sec. 221. Establishment of Asbestos Injury Claims Resolution Fund. 

Sec. 222. Management of the Fund. 

Sec. 223. Enforcement of payment obligations. 

Sec. 224. Interest on underpayment or nonpayment. 

Sec. 225. Education, consultation, screening, and monitoring. 

Sec. 226. National Mesothelioma Research and Treatment Program. 

TITLE III—JUDICIAL REVIEW 

Sec. 301. Judicial review of rules and regulations. 

Sec. 302. Judicial review of award decisions. 

Sec. 303. Judicial review of participants’ assessments. 

Sec. 304. Other judicial challenges. 

Sec. 305. Stays, exclusivity, and constitutional review. 

TITLE IV—MISCELLANEOUS PROVISIONS 

Sec. 401. False information. 

Sec. 402. Effect on bankruptcy laws. 

Sec. 403. Effect on other laws and existing claims. 

Sec. 404. Effect on insurance and reinsurance contracts. 

Sec. 405. Annual report of the Administrator and sunset of the Act. 

Sec. 406. Rules of construction relating to liability of the United States Government. 

Sec. 407. Rules of construction. 

Sec. 408. Violation of environmental health and safety requirements. 

Sec. 409. Nondiscrimination of health insurance. 

TITLE V—ASBESTOS BAN 

Sec. 501. Prohibition on asbestos containing products. 

Sec. 502. Naturally occurring asbestos. 

1 SEC. 2. FINDINGS AND PURPOSE. 

2 (a) FINDINGS.—Congress finds the following: 

3 (1) Millions of Americans have been exposed to 

4 forms of asbestos that can have devastating health 

5 effects. 
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1 (2) Various injuries can be caused by exposure 

2 to some forms of asbestos, including pleural disease 

3 and some forms of cancer. 

4 (3) The injuries caused by asbestos can have la5 tency periods of up to 40 years, and even limited ex6 posure to some forms of asbestos may result in in7 jury in some cases. 

8 (4) Asbestos litigation has had a significant 

9 detrimental effect on the country’s economy, driving 

10 companies into bankruptcy, diverting resources from 

11 those who are truly sick, and endangering jobs and 

12 pensions. 

13 (5) The scope of the asbestos litigation crisis 

14 cuts across every State and virtually every industry. 

15 (6) The United States Supreme Court has rec16 ognized that Congress must act to create a more ra17 tional asbestos claims system. In 1991, a Judicial 

18 Conference Ad Hoc Committee on Asbestos Litiga19 tion, appointed by Chief Justice William Rehnquist, 

20 found that the ‘‘ultimate solution should be legisla21 tion recognizing the national proportions of the 

22 problem . . . and creating a national asbestos dis23 pute resolution scheme . . .’’. The Court found in 

24 1997 in Amchem Products Inc. v. Windsor, 521 

25 U.S. 591, 595 (1997), that ‘‘[t]he argument is sen-
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1 sibly made that a nationwide administrative claims 

2 processing regime would provide the most secure, 

3 fair, and efficient means of compensating victims of 

4 asbestos exposure.’’ In 1999, the Court in Ortiz v. 

5 Fibreboard Corp., 527 U.S. 819, 821 (1999), found 

6 that the ‘‘elephantine mass of asbestos cases . . . 

7 defies customary judicial administration and calls 

8 for national legislation.’’ That finding was again rec9 ognized in 2003 by the Court in Norfolk & Western 

10 Railway Co. v. Ayers, 123 S. Ct. 1210 (2003). 

11 (7) This crisis, and its significant effect on the 

12 health and welfare of the people of the United 

13 States, on interstate and foreign commerce, and on 

14 the bankruptcy system, compels Congress to exercise 

15 its power to regulate interstate commerce and create 

16 this legislative solution in the form of a national as17 bestos injury claims resolution program to supersede 

18 all existing methods to compensate those injured by 

19 asbestos, except as specified in this Act. 

20 (8) This crisis has also imposed a deleterious 

21 burden upon the United States bankruptcy courts, 

22 which have assumed a heavy burden of admin23 istering complicated and protracted bankruptcies 

24 with limited personnel. 
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1 (9) This crisis has devastated many commu2 nities across the country, but hardest hit has been 

3 Libby, Montana, where tremolite asbestos, 1 of the 

4 most deadly forms of asbestos, was contained in the 

5 vermiculite ore mined from the area and despite on6 going cleanup by the Environmental Protection 

7 Agency, many still suffer from the deadly dust. 

8 (10) The asbestos found in Libby, Montana, 

9 tremolite asbestos, has demonstrated an unusually 

10 high level of toxicity, as compared to chrysotile asbes11 tos. Diseases contracted from this tremolite asbestos 

12 are unique and highly progressive. These diseases 

13 typically manifest in a characteristic pleural disease 

14 pattern, and often result in severe impairment or 

15 death without radiographic interstitial disease or typ16 ical chrysotile markers of radiographic severity. Ac17 cording to the Agency for Toxic Substances and Dis18 ease Registry previous studies by the National Insti19 tutes of Occupational Safety and Health document 

20 significantly increased rates of pulmonary abnormali21 ties and disease (asbestosis and lung cancer) among 

22 former workers. 

23 (11) In Libby, Montana, exposure pathways are 

24 and were not limited to the workplace, rather, for dec25 ades there has been an unprecedented 24 hour per day 
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1 contamination of the community’s homes, play2 grounds, gardens, and community air, such that the 

3 entire community of Libby, Montana, has been des4 ignated a Superfund site and is listed on the Envi5 ronmental Protection Agency’s National Priorities 

6 List. 

7 (12) These multiple exposure pathways have 

8 caused severe asbestos disease and death not only in 

9 former workers at the mine and milling facilities, but 

10 also in the workers’ spouses and children, and in 

11 community members who had no direct contact with 

12 the mine. According to the Environmental Protection 

13 Agency, some potentially important alternative path14 ways for past asbestos exposure include elevated con15 centrations of asbestos in ambient air and rec16 reational exposures from children playing in piles of 

17 vermiculite. Furthermore, the Environmental Protec18 tion Agency has determined that current potential 

19 pathways of exposure include vermiculite placed in 

20 walls and attics as thermal insulation, vermiculite or 

21 ore used as road bed material, ore used as ornamental 

22 landscaping, and vermiculite or concentrated ore used 

23 as a soil and garden amendment or aggregate in 

24 driveways. 
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1 (13) The Environmental Protection Agency also 

2 concluded, ‘‘Asbestos contamination exists in a num3 ber of potential source materials at multiple locations 

4 in and around the residential and commercial area of 

5 Libby. . . While data are not yet sufficient to perform 

6 reliable human-health risk evaluations for all sources 

7 and all types of disturbance, it is apparent that re8 leases of fiber concentrations higher than Occupa9 tional Safety and Health Administration standards 

10 may occur in some cases . . . and that screening-level 

11 estimates of lifetime excess cancer risk can exceed the 

12 upper-bound risk range of 1E–04 usually used by the 

13 Environmental Protection Agency for residents under 

14 a variety of exposure scenarios. The occurrence of 

15 non-occupational asbestos-related disease that has 

16 been observed among Libby residents is extremely un17 usual, and has not been associated with asbestos 

18 mines elsewhere, suggesting either very high and pro19 longed environmental exposures and/or increased tox20 icity of this form of amphibole asbestos.’’. 

21 (14) According to a November 2003 article from 

22 the Journal Environmental Health Perspectives titled, 

23 Radiographic Abnormalities and Exposure to Asbes24 tos-Contaminated Vermiculite in the Community of 

25 Libby, Montana, USA, Libby residents who have evi-
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1 dence of ‘‘no apparent exposure’’, i.e., did not work 

2 with asbestos, were not a family member of a former 

3 worker, etc., had a greater rate of pleural abnormali4 ties (6.7 percent) than did those in control groups or 

5 general populations found in other studies from other 

6 states (which ranged from 0.2 percent to 4.6 percent). 

7 ‘‘Given the ubiquitous nature of vermiculite contami8 nation in Libby, along with historical evidence of ele9 vated asbestos concentrations in the air, it would be 

10 difficult to find participants who could be character11 ized as unexposed.’’. 

12 (b) PURPOSE.—The purpose of this Act is to— 

13 (1) create a privately funded, publicly adminis14 tered fund to provide the necessary resources for a 

15 fair and efficient system to resolve asbestos injury 

16 claims that will provide compensation for legitimate 

17 present and future claimants of asbestos exposure as 

18 provided in this Act; 

19 (2) provide compensation to those present and 

20 future victims based on the severity of their injuries, 

21 while establishing a system flexible enough to accom22 modate individuals whose conditions worsens; 

23 (3) relieve the Federal and State courts of the 

24 burden of the asbestos litigation; and 
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1 (4) increase economic stability by resolving the 

2 asbestos litigation crisis that has bankrupted compa3 nies with asbestos liability, diverted resources from 

4 the truly sick, and endangered jobs and pensions. 

5 SEC. 3. DEFINITIONS. 

6 In this Act, the following definitions shall apply: 

7 (1) ADMINISTRATOR.—The term ‘‘Adminis8 trator’’ means the Administrator of the Office of As9 bestos Disease Compensation appointed under sec10 tion 101(b). 

11 (2) ASBESTOS.—The term ‘‘asbestos’’ in12 cludes— 

13 (A) chrysotile; 

14 (B) amosite; 

15 (C) crocidolite; 

16 (D) tremolite asbestos; 

17 (E) winchite asbestos; 

18 (F) richterite asbestos; 

19 (G) anthophyllite asbestos; 

20 (H) actinolite asbestos; 

21 (I) amphibole asbestos; 

22 (I) asbestiform amphibole minerals; 

23 (J) any of the minerals listed under sub24 paragraphs (A) through (I) that has been 

25 chemically treated or altered, and any 
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1 asbestiform variety, type, or component thereof; 

2 and 

3 (K) asbestos-containing material, such as 

4 asbestos-containing products, automotive or in5 dustrial parts or components, equipment, im6 provements to real property, and any other ma7 terial that contains asbestos in any physical or 

8 chemical form. 

9 (3) ASBESTOS CLAIM.— 

10 (A) IN GENERAL.—The term ‘‘asbestos 

11 claim’’ means any claim, premised on any the12 ory, allegation, or cause of action for damages 

13 or other relief presented in a civil action or 

14 bankruptcy proceeding, directly, indirectly, or 

15 derivatively arising out of, based on, or related 

16 to, in whole or part, the health effects of expo17 sure to asbestos, including loss of consortium, 

18 wrongful death, and any derivative claim made 

19 by, or on behalf of, any exposed person or any 

20 representative, spouse, parent, child, or other 

21 relative of any exposed person. 

22 (B) EXCLUSION.—The term does not in23 clude— 

24 (i) claims alleging damage or injury to 

25 tangible property; 
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1 (ii) claims for benefits under a work2 ers’ compensation law or veterans’ benefits 

3 program; 

4 (iii) claims arising under any govern5 mental or private health, welfare, dis6 ability, death or compensation policy, pro7 gram or plan; 

8 (iv) claims arising under any employ9 ment contract or collective bargaining 

10 agreement; or 

11 (v) claims arising out of medical mal12 practice. 

13 (4) ASBESTOS CLAIMANT.—The term ‘‘asbestos 

14 claimant’’ means an individual who files a claim 

15 under section 113. 

16 (5) CIVIL ACTION.—The term ‘‘civil action’’ 

17 means all suits of a civil nature in State or Federal 

18 court, whether cognizable as cases at law or in eq19 uity or in admiralty, but does not include an action 

20 relating to any workers’ compensation law, or a pro21 ceeding for benefits under any veterans’ benefits 

22 program. 

23 (6) COLLATERAL SOURCE COMPENSATION.— 

24 The term ‘‘collateral source compensation’’ means 

25 the compensation that the claimant received, or is 
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1 entitled to receive, from a defendant or an insurer 

2 of that defendant, or compensation trust as a result 

3 of a final judgment or settlement for an asbestos-re4 lated injury that is the subject of a claim filed under 

5 section 113. 

6 (7) ELIGIBLE DISEASE OR CONDITION.—The 

7 term ‘‘eligible disease or condition’’ means the extent 

8 that an illness meets the medical criteria require9 ments established under subtitle C of title I. 

10 (8) EMPLOYERS’ LIABILITY ACT.—The term 

11 ‘‘Act of April 22, 1908 (45 U.S.C. 51 et seq.), com12 monly known as the Employer’s Liability Act’’ shall, 

13 for all purposes of this Act, include the Act of June 

14 5, 1920 (46 U.S.C. App. 688), commonly known as 

15 the Jones Act, and the related phrase ‘‘operations as 

16 a common carrier by railroad’’ shall include oper17 ations as an employer of seamen. 

18 (9) FUND.—The term ‘‘Fund’’ means the As19 bestos Injury Claims Resolution Fund established 

20 under section 221. 

21 (10) INSURANCE RECEIVERSHIP PRO22 CEEDING.—The term ‘‘insurance receivership pro23 ceeding’’ means any State proceeding with respect to 

24 a financially impaired or insolvent insurer or rein25 surer including the liquidation, rehabilitation, con-
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1 servation, supervision, or ancillary receivership of an 

2 insurer under State law. 

3 (11) LAW.—The term ‘‘law’’ includes all law, 

4 judicial or administrative decisions, rules, regula5 tions, or any other principle or action having the ef6 fect of law. 

7 (12) PARTICIPANT.— 

8 (A) IN GENERAL.—The term ‘‘participant’’ 

9 means any person subject to the funding re10 quirements of title II, including— 

11 (i) any defendant participant subject 

12 to liability for payments under subtitle A 

13 of that title; 

14 (ii) any insurer participant subject to 

15 a payment under subtitle B of that title; 

16 and 

17 (iii) any successor in interest of a par18 ticipant. 

19 (B) EXCEPTION.— 

20 (i) IN GENERAL.—A defendant partic21 ipant shall not include any person pro22 tected from any asbestos claim by reason 

23 of an injunction entered in connection with 

24 a plan of reorganization under chapter 11 

25 of title 11, United States Code, that has 
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1 been confirmed by a duly entered order or 

2 judgment of a court that is no longer sub3 ject to any appeal or judicial review, and 

4 the substantial consummation, as such 

5 term is defined in section 1101(2) of title 

6 11, United States Code, of such plan of re7 organization has occurred. 

8 (ii) APPLICABILITY.—Clause (i) shall 

9 not apply to a person who may be liable 

10 under subtitle A of title II based on prior 

11 asbestos expenditures related to asbestos 

12 claims that are not covered by an injunc13 tion described under clause (i). 

14 (13) PERSON.—The term ‘‘person’’— 

15 (A) means an individual, trust, firm, joint 

16 stock company, partnership, association, insur17 ance company, reinsurance company, or cor18 poration; and 

19 (B) does not include the United States, 

20 any State or local government, or subdivision 

21 thereof, including school districts and any gen22 eral or special function governmental unit es23 tablished under State law. 

24 (14) STATE.—The term ‘‘State’’ means any 

25 State of the United States and also includes the Dis-
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1 trict of Columbia, Commonwealth of Puerto Rico, 

2 the Northern Mariana Islands, the Virgin Islands, 

3 Guam, American Samoa, and any other territory or 

4 possession of the United States or any political sub5 division of any of the entities under this paragraph. 

6 (15) SUBSTANTIALLY CONTINUES.—The term 

7 ‘‘substantially continues’’ means that the business 

8 operations have not been significantly modified by 

9 the change in ownership. 

10 (16) SUCCESSOR IN INTEREST.—The term 

11 ‘‘successor in interest’’ means any person that ac12 quires assets, in 1 or a series of transactions, ac13 quires all or substantially all of the assets and prop14 erties (including, without limitation, under section 

15 363(b) or 1123(b)(4) of title 11, United States Code), 

16 and substantially continues the business operations, 

17 of a participant. The factors to be considered in de18 termining whether a person is a successor in interest 

19 include— 

20 (A) retention of the same facilities or loca21 tion; 

22 (B) retention of the same employees; 

23 (C) maintaining the same job under the 

24 same working conditions; 
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1 (D) retention of the same supervisory per2 sonnel; 

3 (E) continuity of assets; 

4 (F) production of the same product or 

5 offer of the same service; 

6 (G) retention of the same name; 

7 (H) maintenance of the same customer 

8 base; 

9 (I) identity of stocks, stockholders, and di10 rectors between the asset seller and the pur11 chaser; or 

12 (J) whether the successor holds itself out 

13 as continuation of previous enterprise, but ex14 pressly does not include whether the person ac15 tually knew of the liability of the participant 

16 under this Act. 

17 (17) VETERANS’ BENEFITS PROGRAM.—The 

18 term ‘‘veterans’ benefits program’’ means any pro19 gram for benefits in connection with military service 

20 administered by the Veterans’ Administration under 

21 title 38, United States Code. 

22 (18) WORKERS’ COMPENSATION LAW.—The 

23 term ‘‘workers’ compensation law’’— 

24 (A) means a law respecting a program ad25 ministered by a State or the United States to 
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1 provide benefits, funded by a responsible em2 ployer or its insurance carrier, for occupational 

3 diseases or injuries or for disability or death 

4 caused by occupational diseases or injuries; 

5 (B) includes the Longshore and Harbor 

6 Workers’ Compensation Act (33 U.S.C. 901 et 

7 seq.) and chapter 81 of title 5, United States 

8 Code; and 

9 (C) does not include the Act of April 22, 

10 1908 (45 U.S.C. 51 et seq.), commonly known 

11 as the Employers’ Liability Act, or damages re12 covered by any employee in a liability action 

13 against an employer. 

14 TITLE I—ASBESTOS CLAIMS 

15 RESOLUTION 

16 Subtitle A—Office of Asbestos 

17 Disease Compensation 

18 SEC. 101. ESTABLISHMENT OF OFFICE OF ASBESTOS DIS19 EASE COMPENSATION. 

20 (a) IN GENERAL.— 

21 (1) ESTABLISHMENT.—There is established 

22 within the Department of Labor the Office of Asbes23 tos Disease Compensation (hereinafter referred to in 

24 this Act as the ‘‘Office’’), which shall be headed by 

25 an Administrator. 
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1 (2) PURPOSE.—The purpose of the Office is to 

2 provide timely, fair compensation, in the amounts 

3 and under the terms specified in this Act, on a no4 fault basis and in a non-adversarial manner, to indi5 viduals whose health has been adversely affected by 

6 exposure to asbestos. 

7 (3) EXPENSES.—There shall be available from 

8 the Asbestos Injury Claims Resolution Fund to the 

9 Administrator such sums as are necessary for the 

10 administrative expenses of the Office, including the 

11 sums necessary for conducting the studies provided 

12 for in section 121(e). 

13 (3) TERMINATION OF THE OFFICE.—The Office 

14 of Asbestos Disease Compensation shall terminate ef15 fective not later than 12 months following certifi16 cation by the Administrator that the Fund has nei17 ther paid a claim in the previous 12 months nor has 

18 debt obligations remaining to pay. 

19 (4) EXPENSES.—There shall be available from 

20 the Fund to the Administrator such sums as are nec21 essary for any and all expenses associated with the 

22 Office of Asbestos Disease Compensation and nec23 essary to carry out the purposes of this Act. Expenses 

24 covered should include— 

25 (A) management of the Fund; 
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1 (B) personnel salaries and expenses, includ2 ing retirement and similar benefits; 

3 (C) the sums necessary for conducting the 

4 studies provided for in section 121(e); 

5 (D) all administrative and legal expenses; 

6 and 

7 (E) any other sum that could be attrib8 utable to the Fund. 

9 (b) APPOINTMENT OF ADMINISTRATOR.— 

10 (1) IN GENERAL.—The Administrator of the 

11 Office of Asbestos Disease Compensation shall be 

12 appointed by the President, by and with the advice 

13 and consent of the Senate. The Administrator shall 

14 serve for a term of 5 years. 

15 (2) REPORTING.—The Administrator shall re16 port directly to the Assistant Secretary of Labor for 

17 the Employment Standards Administration. 

18 (c) DUTIES OF ADMINISTRATOR.— 

19 (1) IN GENERAL.—The Administrator shall be 

20 responsible for— 

21 (A) processing claims for compensation for 

22 asbestos-related injuries and paying compensa23 tion to eligible claimants under the criteria and 

24 procedures established under title I; 
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1 (B) determining, levying, and collecting as2 sessments on participants under title II; 

3 (C) appointing or contracting for the serv4 ices of such personnel, making such expendi5 tures, and taking any other actions as may be 

6 necessary and appropriate to carry out the re7 sponsibilities of the Office, including entering 

8 into cooperative agreements with other Federal 

9 agencies or State agencies and entering into 

10 contracts with nongovernmental entities; 

11 (D) conducting such audits and additional 

12 oversight as necessary to assure the integrity of 

13 the program; 

14 (E) managing the Asbestos Injury Claims 

15 Resolution Fund established under section 221, 

16 including— 

17 (i) administering, in a fiduciary capac18 ity, the assets of the Fund for the exclu19 sive primary purpose of providing benefits 

20 to asbestos claimants and their bene21 ficiaries; 

22 (ii) defraying the reasonable expenses 

23 of administering the Fund; 

24 (iii) investing the assets of the Fund 

25 in accordance with section 222(b); 
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1 (iv) retaining advisers, managers, and 

2 custodians who possess the necessary fa3 cilities and expertise to provide for the 

4 skilled and prudent management of the 

5 Fund, to assist in the development, imple6 mentation and maintenance of the Fund’s 

7 investment policies and investment activi8 ties, and to provide for the safekeeping and 

9 delivery of the Fund’s assets; and 

10 (v) borrowing amounts authorized by 

11 section 221(b) on appropriate terms and 

12 conditions, including pledging the assets of 

13 or payments to the Fund as collateral; 

14 (F) promulgating such rules, regulations, 

15 and procedures as may be necessary and appro16 priate to implement the provisions of this Act; 

17 (G) making such expenditures as may be 

18 necessary and appropriate in the administration 

19 of this Act; 

20 (H) excluding evidence and disqualifying or 

21 debarring any attorney, physician, provider of 

22 medical or diagnostic services, including labora23 tories and others who provide evidence in sup24 port of a claimant’s application for compensa25 tion where the Administrator determines that 
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1 materially false, fraudulent, or fictitious state2 ments or practices have been submitted or en3 gaged in by such individuals or entities; and 

4 (I) having all other powers incidental, nec5 essary, or appropriate to carrying out the func6 tions of the Office. 

7 (2) CERTAIN ENFORCEMENTS.—For each in8 fraction relating to paragraph (1)(H), the Adminis9 trator also may impose a civil penalty not to exceed 

10 $10,000 on any person or entity found to have sub11 mitted or engaged in a materially false, fraudulent, 

12 or fictitious statement or practice under this Act. 

13 The Administrator shall prescribe appropriate regu14 lations to implement paragraph (1)(H). 

15 (3) SELECTION OF DEPUTY ADMINISTRA16 TORS.—The Administrator shall select a Deputy Ad17 ministrator for Claims Administration to carry out 

18 the Administrator’s responsibilities under this title 

19 and a Deputy Administrator for Fund Management 

20 to carry out the Administrator’s responsibilities 

21 under title II of this Act. The Deputy Administra22 tors shall report directly to the Administrator and 

23 shall be in the Senior Executive Service. 

24 (d) EXPEDITIOUS DETERMINATIONS.—The Adminis25 trator shall prescribe rules to expedite claims for asbestos 
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1 claimants with exigent circumstances in order to expedite 

2 the payment of such claims as soon as possible after start3 up of the Fund. The Administrator shall contract out the 

4 processing of such claims. 

5 (e) AUDIT AND PERSONNEL REVIEW PROCE6 DURES.—The Administrator shall establish audit and per7 sonnel review procedures for evaluating the accuracy of 

8 eligibility recommendations of agency and contract per9 sonnel. 

10 (f) APPLICATION OF FOIA.— 

11 (1) IN GENERAL.—Section 552 of title 5, 

12 United States Code (commonly referred to as the 

13 Freedom of Information Act) shall apply to the Of14 fice of Asbestos Disease Compensation and the As15 bestos Insurers Commission. 

16 (2) CONFIDENTIALITY.—Any person may des17 ignate any record submitted under this section as a 

18 confidential commercial or financial record for pur19 poses of section 552 of title 5, United States Code. 

20 The Administrator and the Chairman of the Asbes21 tos Insurers Commission shall adopt procedures for 

22 designating such records as confidential. Information 

23 on reserves and asbestos-related liabilities submitted 

24 by any participant for the purpose of the allocation 
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1 of payments under subtitles A and B of title II shall 

2 be deemed to be confidential financial records. 

3 (2) CONFIDENTIALITY OF FINANCIAL RECORDS.— 

4 (A) IN GENERAL.—Any person may label 

5 any record submitted under this section as a 

6 confidential commercial or financial record for 

7 the purpose of requesting exemption from disclo8 sure under section 552(b)(4) of title 5, United 

9 States Code. 

10 (B) DUTIES OF ADMINISTRATOR AND

11 CHAIRMAN OF THE ASBESTOS INSURERS COM12 MISSION.—The Administrator and Chairman of 

13 the Asbestos Insurers Commission— 

14 (i) shall adopt procedures for— 

15 (I) handling submitted records 

16 marked confidential; and 

17 (II) protecting from disclosure 

18 records they determine to be confiden19 tial commercial or financial informa20 tion exempt under section 552(b)(4) of 

21 title 5, United States Code; and 

22 (ii) may establish a pre-submission de23 termination process to protect from disclo24 sure records on reserves and asbestos-related 

25 liabilities submitted by any defendant par-
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1 ticipant that is exempt under section 

2 552(b)(4) of title 5, United States Code. 

3 (C) REVIEW OF COMPLAINTS.—Nothing in 

4 this section shall supersede or preempt the de 

5 novo review of complaints filed under 552(b)(4) 

6 of title 5, United States Code. 

7 (3) CONFIDENTIALITY OF MEDICAL RECORDS.— 

8 Any claimant may designate any record submitted 

9 under this section as a confidential personnel or med10 ical file for purposes of section 552 of title 5, United 

11 States Code. The Administrator and the Chairman of 

12 the Asbestos Insurers Commission shall adopt proce13 dures for designating such records as confidential. 

14 SEC. 102. ADVISORY COMMITTEE ON ASBESTOS DISEASE 

15 COMPENSATION. 

16 (a) ESTABLISHMENT.— 

17 (1) IN GENERAL.—Not later than 120 days 

18 after the date of enactment of this Act, the Adminis19 trator shall establish an Advisory Committee on As20 bestos Disease Compensation (hereinafter the ‘‘Advi21 sory Committee’’). 

22 (2) COMPOSITION AND APPOINTMENT.—The 

23 Advisory Committee shall be composed of 24 20 

24 members, appointed as follows— 
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1 (A) The Majority and Minority Leaders of 

2 the Senate, the Speaker of the House, and the 

3 Minority Leader of the House shall each ap4 point 4 members. Of the 4— 

5 (i) 2 shall be selected to represent the 

6 interests of claimants, at least 1 of whom 

7 shall be selected from among individuals 

8 recommended by recognized national labor 

9 federations; and 

10 (ii) 2 shall be selected to represent the 

11 interests of participants, 1 of whom shall 

12 be selected to represent the interests of the 

13 insurer participants and 1 of whom shall 

14 be selected to represent the interests of the 

15 defendant participants. 

16 (B) The Administrator shall appoint 8 4 

17 members, who shall be individuals with quali18 fications and expertise in occupational or pul19 monary medicine, occupational health, workers’ 

20 compensation programs, financial administra21 tion, investment of funds, program auditing, or 

22 other relevant fields. 

23 (3) QUALIFICATIONS.—All of the members de24 scribed in paragraph (2) shall have expertise or ex25 perience relevant to the asbestos compensation pro-
28 

S 852 RS 

1 gram, including experience or expertise in diagnosing 

2 asbestos-related diseases and conditions, assessing 

3 asbestos exposure and health risks, filing asbestos 

4 claims, administering a compensation or insurance 

5 program, or as actuaries, auditors, or investment 

6 managers. None of the members described in para7 graph (2)(B) shall be individuals who, for each of 

8 the 5 years before their appointments, earned more 

9 than 15 percent of their income by serving in mat10 ters related to asbestos litigation as consultants or 

11 expert witnesses. 

12 (b) DUTIES.—The Advisory Committee shall advise 

13 the Administrator on— 

14 (1) claims filing and claims processing proce15 dures; 

16 (2) claimant assistance programs; 

17 (3) audit procedures and programs to ensure 

18 the quality and integrity of the compensation pro19 gram; 

20 (4) the development of a list of industries, occu21 pations and time periods for which there is a pre22 sumption of substantial occupational exposure to as23 bestos; 
29 

S 852 RS 

1 (5) recommended analyses or research that 

2 should be conducted to evaluate past claims and to 

3 project future claims under the program; 

4 (6) the annual report required to be submitted 

5 to Congress under section 405; and 

6 (7) such other matters related to the implemen7 tation of this Act as the Administrator considers ap8 propriate. 

9 (c) OPERATION OF THE COMMITTEE.— 

10 (1) Each member of the Advisory Committee 

11 shall be appointed for a term of 3 years, except that, 

12 of the members first appointed— 

13 (A) 8 shall be appointed for a term of 1 

14 year; 

15 (B) 8 shall be appointed for a term of 2 

16 years; and 

17 (C) 8 shall be appointed for a term of 3 

18 years, as determined by the Administrator at 

19 the time of appointment. 

20 (2) Any member appointed to fill a vacancy oc21 curring before the expiration of the term shall be ap22 pointed only for the remainder of such term. 

23 (3) The Administrator shall designate a Chair24 person and Vice Chairperson from among members 
30 

S 852 RS 

1 of the Advisory Committee appointed under sub2 section (a)(2)(B). 

3 (4) The Advisory Committee shall meet at the 

4 call of the Chairperson or the majority of its mem5 bers, and at a minimum shall meet at least 4 times 

6 per year during the first 5 years of the asbestos 

7 compensation program, and at least 2 times per year 

8 thereafter. 

9 (5) The Administrator shall provide to the 

10 Committee such information as is necessary and ap11 propriate for the Committee to carry out its respon12 sibilities under this section. The Administrator may, 

13 upon request of the Advisory Committee, secure di14 rectly from any Federal, State, or local department 

15 or agency such information as may be necessary and 

16 appropriate to enable the Advisory Committee to 

17 carry out its duties under this section. Upon request 

18 of the Administrator, the head of such department 

19 or agency shall furnish such information to the Advi20 sory Committee. 

21 (6) The Administrator shall provide the Advi22 sory Committee with such administrative support as 

23 is reasonably necessary to enable it to perform its 

24 functions. 
31 

S 852 RS 

1 (d) EXPENSES.—Members of the Advisory Com2 mittee, other than full-time employees of the United 

3 States, while attending meetings of the Advisory Com4 mittee or while otherwise serving at the request of the Ad5 ministrator, and while serving away from their homes or 

6 regular places of business, shall be allowed travel and meal 

7 expenses, including per diem in lieu of subsistence, as au8 thorized by section 5703 of title 5, United States Code, 

9 for individuals in the Government serving without pay. 

10 SEC. 103. MEDICAL ADVISORY COMMITTEE. 

11 (a) IN GENERAL.—The Administrator shall establish 

12 a Medical Advisory Committee to provide expert advice re13 garding medical issues arising under the statute. 

14 (b) QUALIFICATIONS.—None of the members of the 

15 Medical Advisory Committee shall be individuals who, for 

16 each of the 5 years before their appointments, earned 

17 more than 15 percent of their income by serving in mat18 ters related to asbestos litigation as consultants or expert 

19 witnesses. 

20 SEC. 104. CLAIMANT ASSISTANCE. 

21 (a) ESTABLISHMENT.—Not later than 180 days after 

22 the enactment of this Act, the Administrator shall estab23 lish a comprehensive asbestos claimant assistance program 

24 to— 
32 

S 852 RS 

1 (1) publicize and provide information to poten2 tial claimants about the availability of benefits for 

3 eligible claimants under this Act, and the procedures 

4 for filing claims and for obtaining assistance in fil5 ing claims; 

6 (2) provide assistance to potential claimants in 

7 preparing and submitting claims, including assist8 ance in obtaining the documentation necessary to 

9 support a claim; 

10 (3) respond to inquiries from claimants and po11 tential claimants; 

12 (4) provide training with respect to the applica13 ble procedures for the preparation and filing of 

14 claims to persons who provide assistance or rep15 resentation to claimants; and 

16 (5) provide for the establishment of a website 

17 where claimants may access all relevant forms and 

18 information. 

19 (b) RESOURCE CENTERS.—The claimant assistance 

20 program shall provide for the establishment of resource 

21 centers in areas where there are determined to be large 

22 concentrations of potential claimants. These centers shall 

23 be located, to the extent feasible, in facilities of the De24 partment of Labor or other Federal agencies. 
33 

S 852 RS 

1 (c) CONTRACTS.—The claimant assistance program 

2 may be carried out in part through contracts with labor 

3 organizations, community-based organizations, and other 

4 entities which represent or provide services to potential 

5 claimants, except that such organizations may not have 

6 a financial interest in the outcome of claims filed with the 

7 Office. 

8 (d) LEGAL ASSISTANCE.— 

9 (1) IN GENERAL.—As part of the program es10 tablished under subsection (a), the Administrator 

11 shall establish a legal assistance program to provide 

12 assistance to asbestos claimants concerning legal 

13 representation issues. 

14 (2) LIST OF QUALIFIED ATTORNEYS.—As part 

15 of the program, the Administrator shall maintain a 

16 roster of qualified attorneys who have agreed to pro17 vide pro bono services to asbestos claimants under 

18 rules established by the Administrator. The claim19 ants shall not be required to use the attorneys listed 

20 on such roster. 

21 (3) NOTICE.— 

22 (A) NOTICE BY ADMINISTRATOR.—The 

23 Administrator shall provide asbestos claimants 

24 with notice of, and information relating to— 
34 

S 852 RS 

1 (i) pro bono services for legal assist2 ance available to those claimants; and 

3 (ii) any limitations on attorneys fees 

4 for claims filed under this title. 

5 (B) NOTICE BY ATTORNEYS.—Before a 

6 person becomes a client of an attorney with re7 spect to an asbestos claim, that attorney shall 

8 provide notice to that person of pro bono serv9 ices for legal assistance available for that claim. 

10 (e) ATTORNEY’S FEES.— 

11 (1) IN GENERAL.—Notwithstanding any con12 tract, the representative of an individual may not re13 ceive, for services rendered in connection with the 

14 claim of an individual under the Fund, more than 5 

15 percent of a final award made (whether by the Ad16 ministrator initially or as a result of administrative 

17 review) under the Fund on such claim. 

18 (2) PENALTY.—Any representative of an asbes19 tos claimant who violates this subsection shall be 

20 fined not more than the greater of— 

21 (A) $5,000; or 

22 (B) twice the amount received by the rep23 resentative for services rendered in connection 

24 with each such violation. 
35 

S 852 RS 

1 SEC. 105. PHYSICIANS PANELS. 

2 (a) APPOINTMENT.—The Administrator shall, in ac3 cordance with section 3109 of title 5, United States Code, 

4 appoint physicians with experience and competency in di5 agnosing asbestos-related diseases to be available to serve 

6 on Physicians Panels, as necessary to carry out this Act. 

7 (b) FORMATION OF PANELS.— 

8 (1) IN GENERAL.—The Administrator shall pe9 riodically determine— 

10 (A) the number of Physicians Panels nec11 essary for the efficient conduct of the medical 

12 review process under section 121; 

13 (B) the number of Physicians Panels nec14 essary for the efficient conduct of the excep15 tional medical claims process under section 121; 

16 and 

17 (C) the particular expertise necessary for 

18 each panel. 

19 (2) EXPERTISE.—Each Physicians Panel shall 

20 be composed of members having the particular ex21 pertise determined necessary by the Administrator, 

22 randomly selected from among the physicians ap23 pointed under subsection (a) having such expertise. 

24 (3) PANEL MEMBERS.— 

25 (A) IN GENERAL.—Except as provided 

26 under subparagraph (B), each Physicians Panel 
36 

S 852 RS 

1 shall consist of 3 physicians, 2 of whom shall be 

2 designated to participate in each case submitted 

3 to the Physicians Panel, and the third of whom 

4 shall be consulted in the event of disagreement. 

5 (B) WAIVER.—The Administrator may 

6 waive the provisions of subparagraph (A) and 

7 may provide for panels of less than 3 physi8 cians, if the Administrator determines that— 

9 (i) there is a shortage of qualified 

10 physicians available for service on panels; 

11 and 

12 (ii) such shortage will result in admin13 istrative delay in the claims process. 

14 (c) QUALIFICATIONS.—To be eligible to serve on a 

15 Physicians Panel under subsection (a), a person shall be— 

16 (1) a physician licensed in any State; 

17 (2) board-certified in pulmonary medicine, occu18 pational medicine, internal medicine, oncology, or 

19 pathology; and 

20 (3) an individual who, for each of the 5 years 

21 before and during his or her appointment to a Phy22 sicians Panel, has earned not more than 15 percent 

23 of his or her income as an employee of a partici24 pating defendant or insurer or a law firm rep25 resenting any party in asbestos litigation or as a 
37 

S 852 RS 

1 consultant or expert witness in matters related to 

2 asbestos litigation. 

3 (d) DUTIES.—Members of a Physicians Panel shall— 

4 (1) make such medical determinations as are 

5 required to be made by Physicians Panels under sec6 tion 121; and 

7 (2) perform such other functions as required 

8 under this Act. 

9 (e) COMPENSATION.—Notwithstanding any limitation 

10 otherwise established under section 3109 of title 5, United 

11 States Code, the Administrator shall be authorized to pay 

12 members of a Physician Panel such compensation as is 

13 reasonably necessary to obtain their services. 

14 (f) FEDERAL ADVISORY COMMITTEE ACT.—A Physi15 cians Panel established under this section shall not be sub16 ject to the Federal Advisory Committee Act (5 U.S.C. 

17 App. 2). 

18 SEC. 106. PROGRAM STARTUP. 

19 (a) INTERIM REGULATIONS.—Not later than 90 days 

20 after the date of enactment of this Act, the Administrator 

21 shall promulgate interim regulations and procedures for 

22 the processing of claims under title I and the operation 

23 of the Fund under title II, including procedures for the 

24 expediting of exigent health claims, and processing of 

25 claims through the claims facility. 
38 

S 852 RS 

1 (b) INTERIM PERSONNEL.—The Secretary of Labor 

2 and the Assistant Secretary of Labor for the Employment 

3 Standards Administration may make available to the Ad4 ministrator on a temporary basis such personnel and other 

5 resources as may be necessary to facilitate the expeditious 

6 startup of the program. The Administrator may in addi7 tion contract with individuals or entities having relevant 

8 experience to assist in the expeditious startup of the pro9 gram. Such relevant experience shall include, but not be 

10 limited to, experience with the review of workers’ com11 pensation, occupational disease, or similar claims and with 

12 financial matters relevant to the operation of the program. 

13 (c) EXIGENT HEALTH CLAIMS.— 

14 (1) IN GENERAL.—The Administrator shall de15 velop procedures to provide for an expedited process 

16 to categorize, evaluate, and pay exigent health 

17 claims. Such procedures shall include, pending pro18 mulgation of final regulations, adoption of interim 

19 regulations as needed for processing of exigent 

20 health claims. 

21 (2) ELIGIBLE EXIGENT HEALTH CLAIMS.—A 

22 claim shall qualify for treatment as an exigent 

23 health claim if the claimant is living and the claim24 ant provides— 
39 

S 852 RS 

1 (A) the claimant is living and provides a 

2 diagnosis of mesothelioma meeting the require3 ments of section 121(d)(10); or 

4 (B) the claimant is living and provides a 

5 declaration or affidavit, from a physician who 

6 has examined the claimant within 120 days be7 fore the date of such declaration or affidavit, 

8 that the physician has diagnosed the claimant 

9 as being terminally ill from an asbestos-related 

10 illness and having a life expectancy of less than 

11 1 year.; or 

12 (C) the claimant is the spouse or child of an 

13 eligible exigent health claimant who— 

14 (i) was living when the claim was filed 

15 with the Fund, or if before the implementa16 tion of interim regulations for the filing of 

17 claims with the Fund, on the date of enact18 ment of this Act; 

19 (ii) has since died from an asbestos-re20 lated disease or condition; and 

21 (iii) has not received compensation 

22 from the Fund for the disease or condition 

23 for which the claim was filed. 

24 (3) ADDITIONAL EXIGENT HEALTH CLAIMS.— 

25 The Administrator may, in final regulations promul-
40 

S 852 RS 

1 gated under section 101(c), designate additional cat2 egories of claims that qualify as exigent health 

3 claims under this subsection. 

4 (4) CLAIMS FACILITY.—To facilitate the prompt 

5 payment of exigent health claims, the Administrator 

6 shall contract with a claims facility, which applying 

7 the medical criteria of section 121, may enter into 

8 settlements with claimants. In the absence of an 

9 offer of judgment as provided under section 

10 106(f)(2), the claimant may submit a claim to that 

11 claims facility. The claims facility shall receive the 

12 claimant’s submissions and evaluate the claim in ac13 cordance with subtitles B and C. The claims facility 

14 shall then submit the file to the Administrator for 

15 payment in accordance with subtitle D. This sub16 section shall not apply to exceptional medical claims 

17 under section 121(f). A claimant may appeal any de18 cision at a claims facility with the Administrator in 

19 accordance with section 114. The processing and 

20 payment of claims shall be subject to regulations pro21 mulgated under this Act. 

22 (5) AUTHORIZATION FOR CONTRACTS WITH

23 CLAIMS FACILITIES.—The Administrator may enter 

24 into contracts with claims facilities a claims facility 
41 

S 852 RS 

1 for the processing of claims (except for exceptional 

2 medical claims) in accordance with this title. 

3 (d) EXTREME FINANCIAL HARDSHIP CLAIMS.—The 

4 Administrator shall, in final regulations promulgated 

5 under section 101(c), designate categories of claims to be 

6 handled on an expedited basis as a result of extreme finan7 cial hardship. 

8 (e) INTERIM ADMINISTRATOR.—Until an Adminis9 trator is appointed and confirmed under section 101(b), 

10 the responsibilities of the Administrator under this Act 

11 shall be performed by the Assistant Secretary of Labor 

12 for the Employment Standards Administration, who shall 

13 have all the authority conferred by this Act on the Admin14 istrator and who shall be deemed to be the Administrator 

15 for purposes of this Act. Before final regulations being 

16 promulgated relating to claims processing, the Interim Ad17 ministrator may prioritize claims processing, without re18 gard to the time requirements prescribed in subtitle B of 

19 this title, based on severity of illness and likelihood that 

20 the illness in question was caused by exposure to asbestos. 

21 exposure to asbestos was a substantial contributing factor 

22 for the illness in question. 

23 (f) STAY OF CLAIMS; RETURN TO TORT SYSTEM.— 

24 (1) STAY OF CLAIMS.—Notwithstanding any 

25 other provision of this Act, any asbestos claim pend-
42 

S 852 RS 

1 ing as of the date of enactment of this Act, other 

2 than a claim to which section 403(d)(2)(A) applies, 

3 shall be subject to a stay. 

4 (2) EXIGENT HEALTH CLAIMS.— 

5 (A) PROCEDURES FOR SETTLEMENT OF

6 EXIGENT HEALTH CLAIMS.— 

7 (i) IN GENERAL.—Any person that 

8 has filed a timely exigent health claim 

9 seeking a judgment or order for monetary 

10 damages in any Federal or State court be11 fore or after the date of enactment of this 

12 Act, may immediately seek an offer of 

13 judgment of such claim in accordance with 

14 this subparagraph. 

15 (ii) FILING.— 

16 (I) IN GENERAL.—The claimant 

17 shall file with the Administrator and 

18 serve upon all defendants in the pend19 ing court action an election to pursue 

20 an offer of judgment— 

21 (aa) within 60 days after the 

22 date of enactment of this Act, if 

23 the claim was filed in a Federal 

24 or State court before such date 

25 of enactment; and 
43 

S 852 RS 

1 (bb) within 60 days after 

2 the date of the filing of the 

3 claim, if the claim is filed in a 

4 Federal or State court on or 

5 after the date of enactment of 

6 this Act. 

7 (II) STAY.—If the claimant fails 

8 to file and serve a timely election 

9 under this clause, the stay under sub10 paragraph (B) shall remain in effect. 

11 (iii) INFORMATION.—A claimant who 

12 has filed a timely election under clause (ii) 

13 shall within 60 days after filing provide to 

14 each defendant and to the Administrator— 

15 (I) the amount received or due to 

16 be received as a result of all settle17 ments that would qualify as a collat18 eral source under section 134, to19 gether with copies of all settlement 

20 agreements and related documents 

21 sufficient to show the accuracy of that 

22 amount; 

23 (II) all information that the 

24 claimant would be required to provide 

25 to the Administrator in support of a 
44 

S 852 RS 

1 claim under sections 115 and 121; 

2 and 

3 (III) a certification by the claim4 ant that the information provided is 

5 true and complete. 

6 (iv) CERTIFICATION.—The certifi7 cation provided under clause (iii) shall be 

8 subject to the same penalties for false or 

9 misleading statements that would be appli10 cable with regard to information provided 

11 to the Administrator in support of a claim. 

12 (v) OFFER OF JUDGMENT.—Within 

13 30 days after service of a complete set of 

14 the information described in clause (iii), 

15 any defendant may file and serve on all 

16 parties a good faith offer of judgment in 

17 an aggregate amount not to exceed the 

18 total amount to which the claimant may be 

19 entitled under section 131 after adjust20 ment for collateral sources under section 

21 134. If the aggregate amount offered by all 

22 defendants exceeds the limitation in this 

23 clause, all offers shall be deemed reduced 

24 pro-rata until the aggregate amount equals 

25 the amount provided under section 131. 
45 

S 852 RS 

1 (vi) ACCEPTANCE OR REJECTION.— 

2 Within 20 days after the service of the last 

3 offer of judgment, the claimant shall either 

4 accept or reject such offers. If the amount 

5 of the offer made by any defendant individ6 ually, or by any defendants jointly, equals 

7 or exceeds 100 percent of what the claim8 ant would receive under the Fund, the 

9 claimant shall accept such offer and re10 lease any outstanding asbestos claims. 

11 (vii) LUMP SUM PAYMENT.—Any ac12 cepted offer of judgment shall be payable 

13 within 30 days and in 1 lump sum in order 

14 to settle the pending claim. 

15 (viii) RECOVERY OF COSTS.—Any de16 fendant whose offer of judgment is accept17 ed and has settled an asbestos claim under 

18 clauses (vi) and (vii) may recover the cost 

19 of such settlement by deducting from its 

20 next and subsequent contributions to the 

21 Fund for the full amount of the payment 

22 made by such defendant to the exigent 

23 health claimant, unless the Administrator 

24 finds, on the basis of clear and convincing 

25 evidence, that— 
46 

S 852 RS 

1 (I) the claimant did not meet the 

2 requirements of an exigent health 

3 claim; and 

4 (II) the defendant’s offer was col5 lusive or otherwise not in good faith. 

6 (ix) INDEMNIFICATION.—In any case 

7 in which the Administrator refuses to 

8 grant full indemnification under clause 

9 (viii), the Administrator may provide such 

10 partial indemnification as may be fair and 

11 just in the circumstances. If Administrator 

12 denies indemnification, the defendant may 

13 seek contribution from other non-settling 

14 defendants, as well as reimbursement 

15 under the defendant’s applicable insurance 

16 policies. If the Administrator refuses to 

17 grant full or partial indemnification based 

18 on collusive action, the defendant may pur19 sue any available remedy against the 

20 claimant. 

21 (x) REFUSAL TO MAKE OFFER.—If a 

22 defendant refuses to make an offer of 

23 judgment, the claimant may continue to 

24 seek a judgment or order for monetary 

25 damages from the court where the case is 
47 

S 852 RS 

1 currently pending in an amount not to ex2 ceed 150 percent of what the claimant 

3 would receive if the claimant had filed a 

4 claim with the Fund. Such a judgment or 

5 order may also provide an award for claim6 ant’s attorneys’ fees and the costs of litiga7 tion. 

8 (xi) REJECTION OF OFFER.—If the 

9 claimant rejects the offer as less than what 

10 the claimant would qualify to receive under 

11 section 131, the claimant may immediately 

12 pursue the claim in court where the claim13 ant shall demonstrate, in addition to all 

14 other essential elements of the claimant’s 

15 claim against any defendant, that the 

16 claimant meets the requirements of section 

17 121. 

18 (B) PURSUAL OF EXIGENT HEALTH

19 CLAIMS.— 

20 (i) STAY.—If a claimant does not 

21 elect to seek an offer of judgment under 

22 subparagraph (A), the pending claim is 

23 stayed for 9 months after the date of en24 actment of this Act. 
48 

S 852 RS 

1 (ii) DEFENDANT OFFER.—If a claim2 ant does not elect to seek an offer of judg3 ment under subparagraph (A), the defend4 ant may elect to make an offer according 

5 to the provisions of this paragraph, except 

6 that a claimant shall not be required to ac7 cept that offer. The claimant shall accept 

8 or reject the offer within 20 days. 

9 (iii) CLAIMS FACILITY.—If a claimant 

10 does not elect to seek an offer of judgment 

11 under subparagraph (A), the claimant may 

12 seek an award from the Fund through the 

13 claims facility under section 106 (c)(4). 

14 (iv) CONTINUANCE OF CLAIMS.—If, 

15 after 9 months after the date of enactment 

16 of this Act, the Administrator cannot cer17 tify to Congress that the Fund is oper18 ational and paying exigent health claims at 

19 a reasonable rate, each person that has 

20 filed an exigent health claim before such 

21 date of enactment and stayed under this 

22 paragraph may continue their exigent 

23 health claims in the court where the case 

24 was pending on the date of enactment of 

25 this Act. For exigent claims filed after the 
49 

S 852 RS 

1 date of enactment of this Act, by claimants 

2 who do not elect to seek an offer of judg3 ment under subparagraph (A), the pending 

4 claim is stayed for 9 months after the date 

5 the claim is filed, unless during that period 

6 the Administrator can certify to Congress 

7 that the Fund is operational and paying 

8 valid claims at a reasonable rate. 

9 (C) CREDIT OF CLAIM AND EFFECT OF

10 OPERATIONAL FUND.—If an asbestos claim is 

11 pursued in Federal or State court in accordance 

12 with this paragraph, any recovery by the claim13 ant shall be a collateral source compensation 

14 for purposes of section 134. 

15 (3) PURSUAL OF ASBESTOS CLAIMS IN FED16 ERAL OR STATE COURT.— 

17 (A) IN GENERAL.—Notwithstanding any 

18 other provision of this Act, if, not later than 24 

19 months after the date of enactment of this Act, 

20 the Administrator cannot certify to Congress 

21 that the Fund is operational and paying all 

22 valid claims at a reasonable rate, any person 

23 with a non-exigent asbestos claim stayed under 

24 this paragraph, except for any person whose 

25 claim does not exceed a Level I claim, may pur-
50 

S 852 RS 

1 sue that claim in the Federal district court or 

2 State court located within— 

3 (i) the State of residence of the claim4 ant; or 

5 (ii) the State in which the asbestos ex6 posure arose. 

7 (B) DEFENDANTS NOT FOUND.—If any 

8 defendant cannot be found in the State de9 scribed in clause (i) or (ii) of subparagraph (A), 

10 the claim may be pursued in the Federal dis11 trict court or State court located within any 

12 State in which the defendant may be found. 

13 (C) DETERMINATION OF MOST APPRO14 PRIATE FORUM.—If a person alleges that the 

15 asbestos exposure occurred in more than 1 

16 county (or Federal district), the trial court shall 

17 determine which State and county (or Federal 

18 district) is the most appropriate forum for the 

19 claim. If the court determines that another 

20 forum would be the most appropriate forum for 

21 a claim, the court shall dismiss the claim. Any 

22 otherwise applicable statute of limitations shall 

23 be tolled beginning on the date the claim was 

24 filed and ending on the date the claim is dis25 missed under this subparagraph. 
51 

S 852 RS 

1 (D) STATE VENUE REQUIREMENTS.— 

2 Nothing in this paragraph shall preempt or su3 persede any State’s law relating to venue re4 quirements within that State which are more 

5 restrictive. 

6 (E) CREDIT OF CLAIM AND EFFECT OF

7 OPERATIONAL OR NONOPERATIONAL FUND.— 

8 (i) CREDIT OF CLAIM.—If an asbestos 

9 claim is pursued in Federal or State court 

10 in accordance with this paragraph, any re11 covery by the claimant shall be a collateral 

12 source compensation for purposes of sec13 tion 134. 

14 (ii) OPERATIONAL FUND.—If the Ad15 ministrator subsequently certifies to Con16 gress that the Fund has become oper17 ational and paying all valid asbestos claims 

18 at a reasonable rate, any claim in a civil 

19 action in Federal or State court that is not 

20 actually on trial before a jury which has 

21 been impaneled and presentation of evi22 dence has commenced, but before its delib23 eration, or before a judge and is at the 

24 presentation of evidence, may, at the op25 tion of the claimant, be deemed a rein-
52 

S 852 RS 

1 stated claim against the Fund and the civil 

2 action before the Federal or State court 

3 shall be null and void. 

4 (iii) NONOPERATIONAL FUND.—Not5 withstanding any other provision of this 

6 Act, if the Administrator subsequently cer7 tifies to Congress that the Fund cannot be8 come operational and paying all valid as9 bestos claims at a reasonable rate, all as10 bestos claims that have a stay may be filed 

11 or reinstated. 

12 (f) STAY OF CLAIMS; RETURN TO TORT SYSTEM.— 

13 (1) STAY OF CLAIMS.—Notwithstanding any 

14 other provision of this Act, any asbestos claim pend15 ing on the date of enactment of this Act, other than 

16 a claim to which section 403(d)(2) applies, shall be 

17 subject to a stay. 

18 (2) EXIGENT HEALTH CLAIMS.— 

19 (A) PROCEDURES FOR SETTLEMENT OF EXI20 GENT HEALTH CLAIMS.— 

21 (i) IN GENERAL.—Any person that has 

22 filed an exigent health claim, as provided 

23 under subsection (c)(2), seeking a judgment 

24 or order for monetary damages in any Fed25 eral or State court before the date of the en-
53 

S 852 RS 

1 actment of this Act, may seek a settlement 

2 in accordance with this paragraph. Any 

3 person with an exigent health claim, as pro4 vided under subsection (c)(2), that arises 

5 after such date of enactment may seek a set6 tlement offer in accordance with this para7 graph. 

8 (ii) FILING.— 

9 (I) IN GENERAL.—At any time be10 fore the Fund or claims facility being 

11 certified as operational and paying ex12 igent health claims at a reasonable 

13 rate, any person with an exigent health 

14 claim as described under clause (i) 

15 shall file a notice of their intent to seek 

16 a settlement or shall file their exigent 

17 health claim with the Administrator or 

18 claims facility. Filing of an exigent 

19 health claim with the Administrator or 

20 claims facility may serve as notice of 

21 intent to seek a settlement. 

22 (II) STAY.—If the claimant fails 

23 to file under this clause, the stay shall 

24 remain in effect except as provided 

25 under subparagraph (B). 
54 

S 852 RS 

1 (iii) EXIGENT HEALTH CLAIM INFOR2 MATION.—To file an exigent health claim, 

3 each individual shall provide all of the fol4 lowing information: 

5 (I) The amount received or enti6 tled to be received as a result of all set7 tlements that would qualify as a collat8 eral source under section 134, and cop9 ies of all settlement agreements and re10 lated documents sufficient to show the 

11 accuracy of that amount. 

12 (II) All information that the 

13 claimant would be required to provide 

14 to the Administrator in support of a 

15 claim under sections 113 and 121. 

16 (III) A certification by the claim17 ant that the information provided is 

18 true and complete. The certification 

19 provided under this subclause shall be 

20 subject to the same penalties for false 

21 or misleading statements that would be 

22 applicable with regard to information 

23 provided to the Administrator or 

24 claims facility in support of a claim. 
55 

S 852 RS 

1 (IV) For exigent health claims 

2 arising after the date of enactment of 

3 this Act, the claimant shall identify 

4 each defendant that would be an ap5 propriate defendant in a civil action 

6 seeking damages for the asbestos claim 

7 of the claimant. The identification of a 

8 defendant under this subclause shall be 

9 required to comply with rule 11 of the 

10 Federal Rules of Civil Procedure. 

11 (iv) TIMING.—A claimant who has 

12 filed a notice of their intent to seek a settle13 ment under clause (ii) shall within 60 days 

14 after filing notice provide to the Adminis15 trator or claims facility, and all affected de16 fendants the information required under 

17 clause (iii). If a claimant has filed an exi18 gent health claim under clause (ii) the Ad19 ministrator shall provide all affected de20 fendants the information required under 

21 clause (iii). 

22 (v) ADMINISTRATOR OR CLAIMS FACIL23 ITY CERTIFICATION OF SETTLEMENT.— 

24 (I) DETERMINATION.—Within 60 

25 days after the information under 
56 

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1 clause (iii) is provided, the Adminis2 trator or claims facility shall deter3 mine whether or not the claim meets 

4 the requirements of an exigent health 

5 claim. 

6 (II) REQUIREMENTS MET.—If the 

7 Administrator or claims facility deter8 mines that the claim meets the require9 ments of an exigent health claim, the 

10 Administrator or claims facility shall 

11 immediately— 

12 (aa) issue and serve on all 

13 parties a certification of eligi14 bility of such claim; 

15 (bb) determine the value of 

16 such claim under the Fund by 

17 subtracting from the amount in 

18 section 131 the total amount of 

19 collateral source compensation re20 ceived by the claimant; and 

21 (cc) pay the award of com22 pensation to the claimant under 

23 clause (xi). 

24 (III) REQUIREMENTS NOT MET.— 

25 If the requirements under clause (iii) 
57 

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1 are not met, the claimant shall have 30 

2 days to perfect the claim. If the claim3 ant fails to perfect the claim within 

4 that 30-day period or the Adminis5 trator or claims facility determines 

6 that the claim does not meet the re7 quirements of an exigent health claim, 

8 the claim shall not be eligible to pro9 ceed under this paragraph. A claimant 

10 may appeal any decision issued by a 

11 claims facility with the Administrator 

12 in accordance with section 114. 

13 (vi) FAILURE TO CERTIFY.—If the Ad14 ministrator or claims facility is unable to 

15 process the claim and does not make a de16 termination regarding the certification of 

17 the claim as required under clause (v), the 

18 Administrator or claims facility shall with19 in 10 days after the end of the 60-day pe20 riod referred to under clause (v)(I) provide 

21 notice of the failure to act to the claimant 

22 and the defendants in the pending Federal 

23 or State court action or the defendants 

24 identified under clause (iii)(IV). If the Ad25 ministrator or claims facility fails to pro-
58 

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1 vide such notice within 10 days, the claim2 ant may elect to provide the notice to the 

3 affected defendants to prompt a settlement 

4 offer. 

5 (vii) FAILURE TO PAY.—If the Admin6 istrator or claims facility does not pay the 

7 award as required under clause (xi), the 

8 Administrator shall refer the certified claim 

9 within 10 days as a certified exigent health 

10 claim to the defendants in the pending Fed11 eral and State court action or to the poten12 tial defendants identified under clause 

13 (iii)(IV) for exigent claims arising after the 

14 date of enactment of this Act. 

15 (viii) SETTLEMENT OFFER.—Any de16 fendant or defendants may, within 30 days 

17 after receipt of such notice as provided 

18 under clause (vi) or (vii), file and serve on 

19 all parties and the Administrator a good 

20 faith settlement offer in an aggregate 

21 amount not to exceed the total amount to 

22 which the claimant may be entitled under 

23 section 131. If the aggregate amount offered 

24 by all defendants exceeds the award deter25 mined by the Administrator, all offers shall 
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1 be deemed reduced pro-rata until the aggre2 gate amount equals the award amount. An 

3 acceptance of such settlement offer in a 

4 pending court action shall be subject to ap5 proval by the trial judge or authorized mag6 istrate in the court where the claim is pend7 ing. The court shall approve any such ac8 cepted offer within 20 days after a request, 

9 unless there is evidence of bad faith or 

10 fraud. No court approval is necessary if the 

11 exigent health claim was certified by the 

12 Administrator or claims facility under 

13 clause (v). 

14 (ix) OPPORTUNITY TO CURE.—If the 

15 settlement offer is rejected for being less 

16 than what the claimant was entitled to 

17 under the Fund, the defendants shall have 

18 10 business days to make an amended offer. 

19 If the amended offer equals 100 percent of 

20 what the claimant would receive under the 

21 Fund, the claimant shall accept such settle22 ment offer in writing. If the settlement offer 

23 is again rejected as less than what the 

24 claimant is entitled to under the Fund or if 

25 defendants fail to make an amended offer, 
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1 the claimant shall be entitled to recover 150 

2 percent of what the claimant would receive 

3 under the Fund before the stay being lifted 

4 under subparagraph (B). If the amount of 

5 the amended settlement offer made by the 

6 Administrator, claims facility, or defend7 ants equals 150 percent of what the claim8 ant would receive under the Fund, the 

9 claimant shall accept such settlement in 

10 writing. 

11 (x) ACCEPTANCE OR REJECTION.— 

12 Within 20 days after receipt of the settle13 ment offer, or the amended settlement offer, 

14 the claimant shall either accept or reject 

15 such offer in writing. If the amount of the 

16 settlement offer made by the Administrator, 

17 claims facility, or defendants equals 100 

18 percent of what the claimant would receive 

19 under the Fund, the claimant shall accept 

20 such settlement in writing. 

21 (xi) PAYMENT SCHEDULE.— 

22 (I) MESOTHELIOMA CLAIMANTS.— 

23 For mesothelioma claimants— 

24 (aa) an initial payment of 

25 50 percent shall be made within 
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1 30 days after the date the settle2 ment is accepted and the second 

3 and final payment shall be made 

4 6 months after date the settlement 

5 is accepted; or 

6 (bb) if the Administrator de7 termines that the payment sched8 ule would impose a severe finan9 cial hardship on the Fund, or if 

10 the court determines that the set11 tlement offer would impose a se12 vere financial hardship on the de13 fendant, the payments may be ex14 tended 50 percent in 6 months 

15 and 50 percent 11 months after 

16 the date the settlement offer is ac17 cepted. 

18 (II) OTHER EXIGENT CLAIM19 ANTS.—For other exigent claimants, as 

20 defined under section 106(c)(2)(B and 

21 (C)— 

22 (aa) the initial payment of 

23 50 percent shall be made within 6 

24 months after the date the settle25 ment is accepted and the second 
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1 and final payment shall be made 

2 12 months after date the settle3 ment is accepted; or 

4 (bb) if the Administrator de5 termines that the payment sched6 ule would impose a severe finan7 cial hardship on the Fund, or if 

8 the court determines that the set9 tlement offer would impose a se10 vere financial hardship on the de11 fendants, the payments may be ex12 tended 50 percent within 1 year 

13 after the date the settlement offer 

14 is accepted and 50 percent in 2 

15 years after date the settlement 

16 offer is accepted. 

17 (III) RELEASE.—Once a claimant 

18 has received final payment of the ac19 cepted settlement offer the claimant 

20 shall release any outstanding asbestos 

21 claims. 

22 (xii) RECOVERY OF COSTS.— 

23 (I) IN GENERAL.—Any defendant 

24 whose settlement offer is accepted may 

25 recover the cost of such settlement by 
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1 deducting from the defendant’s next 

2 and subsequent contributions to the 

3 Fund the full amount of the payment 

4 made by such defendant to the exigent 

5 health claimant, unless the Adminis6 trator finds, on the basis of clear and 

7 convincing evidence, that the defend8 ant’s offer is not in good faith. Any 

9 such payment shall be considered a 

10 payment to the Fund for purposes of 

11 section 404(e)(1) and in response to the 

12 payment obligations imposed on de13 fendant and insurer participants in 

14 title II. 

15 (II) REIMBURSEMENT.—Notwith16 standing subclause (I), if the deduc17 tions from the defendant participant’s 

18 next and subsequent contributions to 

19 the Fund do not fully recover the cost 

20 of such payments on or before its third 

21 annual contribution to the Fund, the 

22 Fund shall reimburse such defendant 

23 for such remaining cost not later than 

24 6 months after the date of the third 

25 scheduled Fund contribution. 
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1 (xiii) FAILURE TO MAKE OFFER.—If 

2 defendants fail to make a settlement offer 

3 within the 30-day period described under 

4 clause (viii) or make amended offers within 

5 the 10 business day cure period described 

6 under clause (ix), the claimant shall be en7 titled to recover 150 percent of what the 

8 claimant would receive under the Fund be9 fore the stay being lifted under subpara10 graph (B). 

11 (xiv) FAILURE TO PAY.—If defendants 

12 fail to pay an accepted settlement offer 

13 within the payment schedule under clause 

14 (xi), the claimant shall be entitled to recover 

15 150 percent of what the claimant would re16 ceive under the Fund before the stay being 

17 lifted under subparagraph (B). If the stay 

18 is lifted under subparagraph (B) the claim19 ant may seek a judgment or order for mone20 tary damages from the court where the case 

21 is currently pending or the appropriate 

22 Federal or State court for claims arising 

23 after the date of enactment of this Act. 

24 (B) CONTINUATION OF EXIGENT HEALTH

25 CLAIMS.—If 9 months after an exigent health 
65 

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1 claim has been filed under subparagraph (A)(ii), 

2 a claimant has not received a settlement under 

3 subparagraph (A)(xi) and the Administrator has 

4 not certified to Congress that the Fund or claims 

5 facility is operational and paying exigent health 

6 claims at a reasonable rate, such exigent health 

7 claimant, may seek a judgment or order for 

8 monetary damages from the court where the case 

9 is currently pending or the appropriate Federal 

10 or State court for claims arising after the date 

11 of enactment of this Act. 

12 (C) CREDIT OF CLAIM AND EFFECT OF

13 OPERATIONAL FUND.— 

14 (i) COLLATERAL SOURCE.—If an asbes15 tos claim is pursued in Federal or State 

16 court in accordance with this paragraph, 

17 any recovery by the claimant shall be a col18 lateral source compensation for purposes of 

19 section 134. 

20 (ii) RECOVERY OF COSTS.—Any de21 fendant may recover the cost of any claim 

22 continued in court for up to the amount the 

23 claimant would receive under the Fund by 

24 deducting from the defendant’s next and 

25 subsequent contributions to the Fund for the 
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1 full amount of the payment made by such 

2 defendant to the exigent health claimant. 

3 (3) PURSUAL OF NON-EXIGENT ASBESTOS CLAIMS

4 IN FEDERAL OR STATE COURT.— 

5 (A) IN GENERAL.—Notwithstanding any 

6 other provision of this Act, if not later than 24 

7 months after the date of enactment of this Act, 

8 the Administrator cannot certify to Congress 

9 that the Fund is operational and paying all 

10 valid claims at a reasonable rate, any person 

11 with a non-exigent asbestos claim stayed, except 

12 for any person whose claim does not exceed a 

13 Level I claim, may pursue that claim in the 

14 Federal district court or State court located 

15 within— 

16 (i) the State of residence of the claim17 ant; or 

18 (ii) the State in which the asbestos ex19 posure occurred. 

20 (B) DEFENDANTS NOT FOUND.—If any de21 fendant cannot be found in the State described 

22 under subparagraph (A) (i) or (ii), the claim 

23 may be pursued in the Federal district court or 

24 State court located within any State in which 

25 the defendant may be found. 
67 

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1 (C) DETERMINATION OF MOST APPROPRIATE

2 FORUM.—If a person alleges that the asbestos ex3 posure occurred in more than 1 county (or Fed4 eral district), the trial court shall determine 

5 which State and county (or Federal district) is 

6 the most appropriate forum for the claim. If the 

7 court determines that another forum would be 

8 the most appropriate forum for a claim, the 

9 court shall dismiss the claim. Any otherwise ap10 plicable statute of limitations shall be tolled be11 ginning on the date the claim was filed and end12 ing on the date the claim is dismissed under this 

13 subparagraph. 

14 (D) STATE VENUE REQUIREMENTS.—Noth15 ing in this paragraph shall preempt or supersede 

16 any State law relating to venue requirements 

17 within that State which are more restrictive. 

18 (E) CREDIT OF CLAIM AND EFFECT OF

19 OPERATIONAL OR NONOPERATIONAL FUND.— 

20 (i) CREDIT OF CLAIM.—If an asbestos 

21 claim is pursued in Federal or State court 

22 in accordance with this paragraph, any re23 covery by the claimant shall be a collateral 

24 source compensation for purposes of section 

25 134. 
68 

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1 (ii) OPERATIONAL CERTIFICATION.— 

2 Operational certification shall be a filing in 

3 the Federal Register confirming that the 

4 Fund is operational and paying all valid 

5 asbestos claims at a reasonable rate. 

6 (iii) OPERATIONAL PRECONDITIONS.— 

7 (I) The Administrator may not 

8 issue a operational certification 

9 until— 

10 (aa) 60 days after the fund11 ing allocation information re12 quired under section 221(e) has 

13 been published in the Federal Reg14 ister; and 

15 (bb) insurers subject to sec16 tion 212(a)(3) submit their names 

17 and information to the Adminis18 trator within 30 days after the 

19 date of enactment of this Act and 

20 60 days after the Administrator 

21 publishes such information in the 

22 Federal Register. 

23 (iv) OPERATIONAL FUND.—If the Ad24 ministrator issues an operational certifi25 cation and notifies Congress that the Fund 
69 

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1 has become operational and paying all 

2 valid asbestos claims at a reasonable rate, 

3 any nonexigent asbestos claim in a civil ac4 tion in Federal or State court that is not on 

5 trial before a jury which has been 

6 impaneled and presentation of evidence has 

7 commenced, but before its deliberation, or 

8 before a judge and is at the presentation of 

9 evidence shall be deemed a reinstated claim 

10 against the Fund and the civil action before 

11 the Federal or State court shall be null and 

12 void. 

13 (v) NONOPERATIONAL FUND.—Notwith14 standing any other provision of this Act, if 

15 the Administrator subsequently issues a 

16 nonoperational certification and notifies 

17 Congress that the Fund is unable to become 

18 operational and pay all valid asbestos 

19 claims at a reasonable rate, all asbestos 

20 claims that have a stay may be filed or re21 instated. 

22 SEC. 107. AUTHORITY OF THE ADMINISTRATOR. 

23 The Administrator, on any matter within the jurisdic24 tion of the Administrator under this Act, may— 
70 

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1 (1) issue subpoenas for and compel the attend2 ance of witnesses within a radius of 200 miles; 

3 (2) administer oaths; 

4 (3) examine witnesses; 

5 (4) require the production of books, papers, 

6 documents, and other evidence; and 

7 (5) request assistance from other Federal agen8 cies with the performance of the duties of the Ad9 ministrator under this Act. 

10 Subtitle B—Asbestos Disease 

11 Compensation Procedures 

12 SEC. 111. ESSENTIAL ELEMENTS OF ELIGIBLE CLAIM. 

13 To be eligible for an award under this Act for an as14 bestos-related disease or injury, an individual shall— 

15 (1) file a claim in a timely manner in accord16 ance with section 113; and 

17 (2) prove, by a preponderance of the evidence, 

18 that the claimant suffers from an eligible disease or 

19 condition, as demonstrated by evidence that meets 

20 the requirements established under subtitle C. 

21 SEC. 112. GENERAL RULE CONCERNING NO-FAULT COM22 PENSATION. 

23 An asbestos claimant shall not be required to dem24 onstrate that the asbestos-related injury for which the 
71 

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1 claim is being made resulted from the negligence or other 

2 fault of any other person. 

3 SEC. 113. FILING OF CLAIMS. 

4 (a) WHO MAY SUBMIT.— 

5 (1) IN GENERAL.—Any individual who has suf6 fered from a disease or condition that is believed to 

7 meet the requirements established under subtitle C 

8 (or the personal representative of the individual, if 

9 the individual is deceased or incompetent) may file 

10 a claim with the Office for an award with respect to 

11 such injury. 

12 (2) DEFINITION.—In this Act, the term ‘‘per13 sonal representative’’ shall have the same meaning 

14 as that term is defined in section 104.4 of title 28 

15 of the Code of Federal Regulations, as in effect on 

16 December 31, 2004. 

17 (3) LIMITATION.—A claim may not be filed by 

18 any person seeking contribution or indemnity. 

19 (4) EFFECT OF MULTIPLE INJURIES.— 

20 (A) IN GENERAL.—A claimant who receives 

21 an award for an eligible disease or condition 

22 shall not be precluded from submitting claims for 

23 and receiving additional awards under this title 

24 for any higher disease level for which the claim-
72 

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1 ant becomes eligible, subject to appropriate 

2 setoffs as provided under section 134. 

3 (B) LIBBY, MONTANA CLAIMS.— 

4 (i) IN GENERAL.—Notwithstanding 

5 subparagraph (A), if a Libby, Montana 

6 claimant worsens in condition, as measured 

7 by pulmonary function tests, such that a 

8 claimant qualifies for a higher nonmalig9 nant level, the claimant shall be eligible for 

10 an additional award, at the appropriate 

11 level, offset by any award previously paid 

12 under this Act, such that a claimant would 

13 qualify for Level IV if the claimant satisfies 

14 section 121(f)(8), and would qualify for 

15 Level V if the claimant provides— 

16 (I) a diagnosis of bilateral asbes17 tos related nonmalignant disease; 

18 (II) evidence of TLC or FVC less 

19 than 60 percent; and 

20 (III) supporting medical docu21 mentation establishing asbestos expo22 sure as a substantial contributing fac23 tor in causing the pulmonary condi24 tion in question, and excluding more 
73 

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1 likely causes of that pulmonary condi2 tion. 

3 (ii) SUBSEQUENT MALIGNANT DIS4 EASE.—If a Libby, Montana, claimant de5 velops malignant disease, such that the 

6 claimant qualifies for Level VI, VII, VIII, 

7 or IX, subparagraph (A) shall apply. 

8 (b) STATUTE OF LIMITATIONS.— 

9 (1) IN GENERAL.—Except as otherwise pro10 vided in this subsection, if an individual fails to file 

11 a claim with the Office under this section within 5 

12 years after the date on which the individual first— 

13 (A) received a medical diagnosis of an eli14 gible disease or condition as provided for under 

15 this subtitle and subtitle C; or 

16 (B) discovered facts that would have led a 

17 reasonable person to obtain a medical diagnosis 

18 with respect to an eligible disease or condition, 

19 any claim relating to that injury, and any other as20 bestos claim related to that injury, If a claim is not 

21 filed with the Office within the limitations period 

22 specified in this subsection for that category of claim, 

23 such claim shall be extinguished, and any recovery 

24 thereon shall be prohibited. 
74 

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1 (2) INITIAL CLAIMS.—An initial claim for an 

2 award under this Act shall be filed within 5 years 

3 after the date on which the claimant first received a 

4 medical diagnosis and medical test results sufficient 

5 to satisfy the criteria for the disease level for which 

6 the claimant is seeking compensation. 

7 (3) CLAIMS FOR ADDITIONAL AWARDS.— 

8 (A) NON-MALIGNANT DISEASES.—If a 

9 claimant has previously filed a timely initial 

10 claim for compensation for any non-malignant 

11 disease level, there shall be no limitations period 

12 applicable to the filing of claims by the claimant 

13 for additional awards for higher disease levels 

14 based on the progression of the non-malignant 

15 disease. 

16 (B) MALIGNANT DISEASES.—Regardless of 

17 whether the claimant has previously filed a 

18 claim for compensation for any other disease 

19 level, a claim for compensation for a malignant 

20 disease level shall be filed within 5 years after 

21 the claimant first obtained a medical diagnosis 

22 and medical test results sufficient to satisfy the 

23 criteria for the malignant disease level for which 

24 the claimant is seeking compensation. 
75 

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1 (2) EXCEPTION.—The statute of limitations in 

2 paragraph (1) does not apply to the progression of 

3 nonmalignant diseases once the initial claim has 

4 been filed. 

5 (3)(4) EFFECT ON PENDING CLAIMS.— 

6 (A) IN GENERAL.—If, on the date of en7 actment of this Act, an asbestos claimant has 

8 any timely filed asbestos claim that is pre9 empted under section 403(e), such claimant 

10 shall file a claim under this section within 5 

11 years after such date of enactment, or any 

12 claim relating to that injury, and any other as13 bestos claim related to that injury shall be ex14 tinguished, and recovery there shall be prohib15 ited. 

16 (B) SPECIAL RULE.—For purposes of this 

17 paragraph, a claim shall not be treated as pend18 ing with a trust established under title 11, 

19 United States Code, solely because a claimant 

20 whose claim was previously compensated by the 

21 trust has or alleges— 

22 (i) a non-contingent right to the pay23 ment of future installments of a fixed 

24 award; or 
76 

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1 (ii) a contingent right to recover some 

2 additional amount from the trust on the 

3 occurrence of a future event, such as the 

4 reevaluation of the trust’s funding ade5 quacy or projected claims experience. 

6 (4) EFFECT OF MULTIPLE INJURIES.— 

7 (A) IN GENERAL.—An asbestos claimant 

8 who receives an award under this title for an el9 igible disease or condition, and who subse10 quently develops another such injury, shall be 

11 eligible for additional awards under this title 

12 (subject to appropriate setoffs for such prior re13 covery of any award under this title and from 

14 any other collateral source) and the statute of 

15 limitations under paragraph (1) shall not begin 

16 to run with respect to such subsequent injury 

17 until such claimant obtains a medical diagnosis 

18 of such other injury or discovers facts that 

19 would have led a reasonable person to obtain 

20 such a diagnosis. 

21 (B) SETOFFS.—Except as provided in sub22 paragraph (C), any amounts paid or to be paid 

23 for a prior award under this Act shall be de24 ducted as a setoff against amounts payable for 

25 the second injury claim. 
77 

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1 (C) EXCEPTION.—Any amounts paid or to 

2 be paid for a prior claim for a nonmalignant 

3 disease (Levels I through V) filed against the 

4 Fund shall not be deducted as a setoff against 

5 amounts payable for the second injury claim for 

6 a malignant disease (Levels VI through IX), 

7 unless the malignancy was diagnosed, or the as8 bestos claimant had discovered facts that would 

9 have led a reasonable person to obtain such a 

10 diagnosis, before the date on which the non11 malignancy claim was compensated. 

12 (c) REQUIRED INFORMATION.—A claim filed under 

13 subsection (a) shall be in such form, and contain such in14 formation in such detail, as the Administrator shall by 

15 regulation prescribe. At a minimum, a claim shall in16 clude— 

17 (1) the name, social security number, gender, 

18 date of birth, and, if applicable, date of death of the 

19 claimant; 

20 (2) information relating to the identity of de21 pendents and beneficiaries of the claimant; 

22 (3) an employment history sufficient to estab23 lish required asbestos exposure, accompanied by so24 cial security or other payment records or a signed 

25 release permitting access to such records; 
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1 (4) a description of the asbestos exposure of the 

2 claimant, including, to the extent known, informa3 tion on the site, or location of exposure, and dura4 tion and intensity of exposure; 

5 (5) a description of the tobacco product use his6 tory of the claimant, including frequency and dura7 tion; 

8 (6) an identification and description of the as9 bestos-related diseases or conditions of the claimant, 

10 accompanied by a written report by the claimant’s 

11 physician with medical diagnoses and x-ray films, 

12 and other test results necessary to establish eligi13 bility for an award under this Act; 

14 (7) a description of any prior or pending civil 

15 action or other claim brought by the claimant for as16 bestos-related injury or any other pulmonary, paren17 chymal, or pleural injury, including an identification 

18 of any recovery of compensation or damages through 

19 settlement, judgment, or otherwise; and 

20 (8) for any claimant who asserts that he or she 

21 is a nonsmoker or an ex-smoker, as defined in sec22 tion 131, for purposes of an award under Malignant 

23 Level VI, Malignant Level VII, or Malignant Level 

24 VIII, evidence to support the assertion of non-
79 

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1 smoking or ex-smoking, including relevant medical 

2 records. 

3 (d) DATE OF FILING.—A claim shall be considered 

4 to be filed on the date that the claimant mails the claim 

5 to the Office, as determined by postmark, or on the date 

6 that the claim is received by the Office, whichever is the 

7 earliest determinable date. 

8 (e) INCOMPLETE CLAIMS.—If a claim filed under 

9 subsection (a) is incomplete, the Administrator shall notify 

10 the claimant of the information necessary to complete the 

11 claim and inform the claimant of such services as may 

12 be available through the Claimant Assistance Program es13 tablished under section 104 to assist the claimant in com14 pleting the claim. Any time periods for the processing of 

15 the claim shall be suspended until such time as the claim16 ant submits the information necessary to complete the 

17 claim. If such information is not received within 1 year 

18 after the date of such notification, the claim shall be dis19 missed. 

20 SEC. 114. ELIGIBILITY DETERMINATIONS AND CLAIM 

21 AWARDS. 

22 (a) IN GENERAL.— 

23 (1) REVIEW OF CLAIMS.—The Administrator 

24 shall, in accordance with this section, determine 

25 whether each claim filed under the Fund or claims 
80 

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1 facility satisfies the requirements for eligibility for 

2 an award under this Act and, if so, the value of the 

3 award. In making such determinations, the Adminis4 trator shall consider the claim presented by the 

5 claimant, the factual and medical evidence submitted 

6 by the claimant in support of the claim, the medical 

7 determinations of any Physicians Panel to which a 

8 claim is referred under section 121, and the results 

9 of such investigation as the Administrator may deem 

10 necessary to determine whether the claim satisfies 

11 the criteria for eligibility established by this Act. 

12 (2) ADDITIONAL EVIDENCE.—The Adminis13 trator may request the submission of medical evi14 dence in addition to the minimum requirements of 

15 section 113(c) if necessary or appropriate to make 

16 a determination of eligibility for an award, in which 

17 case the cost of obtaining such additional informa18 tion or testing shall be borne by the Office. 

19 (b) PROPOSED DECISIONS.—Not later than 90 days 

20 after the filing of a claim, the Administrator shall provide 

21 to the claimant (and the claimant’s representative) a pro22 posed decision accepting or rejecting the claim in whole 

23 or in part and specifying the amount of the proposed 

24 award, if any. The proposed decision shall be in writing, 

25 shall contain findings of fact and conclusions of law, and 
81 

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1 shall contain an explanation of the procedure for obtaining 

2 review of the proposed decision. 

3 (c) PAYMENTS IF NO TIMELY PROPOSED DECI4 SION.—If the Administrator has received a complete claim 

5 and has not provided a proposed decision to the claimant 

6 under subsection (b) within 180 days after the filing of 

7 the claim, the claim shall be deemed accepted and the 

8 claimant shall be entitled to payment under section 

9 133(a)(2). If the Administrator subsequently rejects the 

10 claim the claimant shall receive no further payments under 

11 section 133. If the Administrator subsequently rejects the 

12 claim in part, the Administrator shall adjust future pay13 ments due the claimant under section 133 accordingly. In 

14 no event may the Administrator recover amounts properly 

15 paid under this section from a claimant. 

16 (d) REVIEW OF PROPOSED DECISIONS.— 

17 (1) RIGHT TO HEARING.— 

18 (A) IN GENERAL.—Any claimant not satis19 fied with a proposed decision of the Adminis20 trator under subsection (b) shall be entitled, on 

21 written request made within 90 days after the 

22 date of the issuance of the decision, to a hear23 ing on the claim of that claimant before a rep24 resentative of the Administrator. At the hear25 ing, the claimant shall be entitled to present 
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1 oral evidence and written testimony in further 

2 support of that claim. 

3 (B) CONDUCT OF HEARING.—When prac4 ticable, the hearing will be set at a time and 

5 place convenient for the claimant. In conducting 

6 the hearing, the representative of the Adminis7 trator shall not be bound by common law or 

8 statutory rules of evidence, by technical or for9 mal rules of procedure, or by section 554 of 

10 title 5, United States Code, except as provided 

11 by this Act, but shall conduct the hearing in 

12 such manner as to best ascertain the rights of 

13 the claimant. For this purpose, the representa14 tive shall receive such relevant evidence as the 

15 claimant adduces and such other evidence as 

16 the representative determines necessary or use17 ful in evaluating the claim. 

18 (C) REQUEST FOR SUBPOENAS.— 

19 (i) IN GENERAL.—A claimant may re20 quest a subpoena but the decision to grant 

21 or deny such a request is within the discre22 tion of the representative of the Adminis23 trator. The representative may issue sub24 poenas for the attendance and testimony of 

25 witnesses, and for the production of books, 
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1 records, correspondence, papers, or other 

2 relevant documents. Subpoenas are issued 

3 for documents only if such documents are 

4 relevant and cannot be obtained by other 

5 means, and for witnesses only where oral 

6 testimony is the best way to ascertain the 

7 facts. 

8 (ii) REQUEST.—A claimant may re9 quest a subpoena only as part of the hear10 ing process. To request a subpoena, the re11 quester shall— 

12 (I) submit the request in writing 

13 and send it to the representative as 

14 early as possible, but no later than 30 

15 days after the date of the original 

16 hearing request; and 

17 (II) explain why the testimony or 

18 evidence is directly relevant to the 

19 issues at hand, and a subpoena is the 

20 best method or opportunity to obtain 

21 such evidence because there are no 

22 other means by which the documents 

23 or testimony could have been ob24 tained. 
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1 (iii) FEES AND MILEAGE.—Any per2 son required by such subpoena to attend as 

3 a witness shall be allowed and paid the 

4 same fees and mileage as are paid wit5 nesses in the district courts of the United 

6 States. Such fees and mileage shall be paid 

7 from the Fund. 

8 (2) REVIEW OF WRITTEN RECORD.—In lieu of 

9 a hearing under paragraph (1), any claimant not 

10 satisfied with a proposed decision of the Adminis11 trator shall have the option, on written request made 

12 within 90 days after the date of the issuance of the 

13 decision, of obtaining a review of the written record 

14 by a representative of the Administrator. If such re15 view is requested, the claimant shall be afforded an 

16 opportunity to submit any written evidence or argu17 ment which the claimant believes relevant. 

18 (e) FINAL DECISIONS.— 

19 (1) IN GENERAL.—If the period of time for re20 questing review of the proposed decision expires and 

21 no request has been filed, or if the claimant waives 

22 any objections to the proposed decision, the Admin23 istrator shall issue a final decision. If such decision 

24 materially differs from the proposed decision, the 
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1 claimant shall be entitled to review of the decision 

2 under subsection (d). 

3 (2) TIME AND CONTENT.—If the claimant re4 quests review of all or part of the proposed decision 

5 the Administrator shall issue a final decision on the 

6 claim not later than 180 days after the request for 

7 review is received, if the claimant requests a hearing, 

8 or not later than 90 days after the request for re9 view is received, if the claimant requests review of 

10 the written record. Such decision shall be in writing 

11 and contain findings of fact and conclusions of law. 

12 (f) REPRESENTATION.—A claimant may authorize an 

13 attorney or other individual to represent him or her in any 

14 proceeding under this Act. 

15 SEC. 115. MEDICAL EVIDENCE AUDITING PROCEDURES. 

16 (a) IN GENERAL.— 

17 (1) DEVELOPMENT.—The Administrator shall 

18 develop methods for auditing and evaluating the 

19 medical evidence submitted as part of a claim the 

20 claims process. The Administrator may develop addi21 tional methods for auditing and evaluating other 

22 types of evidence or information received by the Ad23 ministrator. 

24 (2) REFUSAL TO CONSIDER CERTAIN EVI25 DENCE.— 
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1 (A) IN GENERAL.—If the Administrator 

2 determines that an audit conducted in accord3 ance with the methods developed under para4 graph (1) demonstrates that the medical evi5 dence submitted by a specific physician or med6 ical facility is not consistent with prevailing 

7 medical practices or the applicable requirements 

8 of this Act, any medical evidence from such 

9 physician or facility shall be unacceptable for 

10 purposes of establishing eligibility for an award 

11 under this Act. 

12 (B) NOTIFICATION.—Upon a determina13 tion by the Administrator under subparagraph 

14 (A), the Administrator shall notify the physi15 cian or medical facility involved of the results of 

16 the audit. Such physician or facility shall have 

17 a right to appeal such determination under pro18 cedures issued by the Administrator. 

19 (b) REVIEW OF CERTIFIED B-READERS.— 

20 (1) IN GENERAL.—At a minimum, the Adminis21 trator shall prescribe procedures to randomly assign 

22 claims for evaluation by an independent certified B23 reader of x-rays submitted in support of a claim, the 

24 cost of which shall be borne by the Office. 
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1 (1) IN GENERAL.—The Administrator shall pre2 scribe procedures to randomly evaluate the x-rays 

3 submitted in support of a statistically significant 

4 number of claims by independent certified B-readers, 

5 the cost of which shall be paid by the Fund. 

6 (2) DISAGREEMENT.—If an independent cer7 tified B-reader assigned under paragraph (1) dis8 agrees with the quality grading or ILO level as9 signed to an x-ray submitted in support of a claim, 

10 the Administrator shall require a review of such x11 rays by a second independent certified B-reader. 

12 (3) EFFECT ON CLAIM.—If neither certified B13 reader under paragraph (2) agrees with the quality 

14 grading and the ILO grade level assigned to an x15 ray as part of the claim, the Administrator shall 

16 take into account the findings of the 2 independent 

17 B readers in making the determination on such 

18 claim. 

19 (4) CERTIFIED B-READERS.—The Adminis20 trator shall maintain a list of a minimum of 50 cer21 tified B-readers eligible to participate in the inde22 pendent reviews, chosen from all certified B-readers. 

23 When an x-ray is sent for independent review, the 

24 Administrator shall choose the certified B-reader at 

25 random from that list. 
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1 (c) SMOKING ASSESSMENT.— 

2 (1) IN GENERAL.— 

3 (A) RECORDS AND DOCUMENTS.—To aid 

4 in the assessment of the accuracy of claimant 

5 representations as to their smoking status for 

6 purposes of determining eligibility and amount 

7 of award under Malignant Level VI, Malignant 

8 Level VII, or Malignant Level VIII, and excep9 tional medical claims, the Administrator shall 

10 have the authority to obtain relevant records 

11 and documents, including— 

12 (i) records of past medical treatment 

13 and evaluation; 

14 (ii) affidavits of appropriate individ15 uals; 

16 (iii) applications for insurance and 

17 supporting materials; and 

18 (iv) employer records of medical ex19 aminations. 

20 (B) CONSENT.—The claimant shall provide 

21 consent for the Administrator to obtain such 

22 records and documents where required. 

23 (2) REVIEW.—The frequency of review of 

24 records and documents submitted under paragraph 

25 (1)(A) shall be at the discretion of the Adminis-
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1 trator, but shall address at least 5 percent of the 

2 claimants asserting status as nonsmokers or ex3 smokers. 

4 (3) CONSENT.—The Administrator may require 

5 the performance of blood tests or any other appro6 priate medical test, such as serum cotinine screen7 ing, where claimants assert they are nonsmokers or 

8 ex-smokers for purposes of an award under Malig9 nant Level VI, Malignant Level VII, or Malignant 

10 Level VIII, or as an exceptional medical claim, the 

11 cost of which shall be borne by the Office. 

12 (3) CONSENT.— 

13 (A) IN GENERAL.—The Administrator may 

14 require the performance of blood tests or any 

15 other appropriate medical test, where claimants 

16 assert they are nonsmokers or ex-smokers for 

17 purposes of an award under Malignant Level VI, 

18 VII, or VIII, or as an exceptional medical claim, 

19 the cost of which shall be paid by the Fund. 

20 (B) SERUM COTININE SCREENING.—The Ad21 ministrator shall require the performance of 

22 serum cotinine screening on all claimants who 

23 assert they are nonsmokers or ex-smokers for 

24 purposes of an award under Malignant Level VI, 
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1 VII, or VIII, or as an exceptional medical claim, 

2 the cost of which shall be paid by the Fund. 

3 (4) PENALTY FOR FALSE STATEMENTS.—Any 

4 false information submitted under this subsection 

5 shall be subject to criminal prosecution or civil pen6 alties as provided under section 1348 of title 18, 

7 United States Code (as added by this Act) and sec8 tion 101(c)(2). 

9 (d) PULMONARY FUNCTION TESTING.—The Adminis10 trator shall develop auditing procedures for pulmonary 

11 function test results submitted as part of a claim, to ensure 

12 that such tests are conducted in accordance with American 

13 Thoracic Society Criteria, as defined under section 

14 121(a)(13). 

15 Subtitle C—Medical Criteria 

16 SEC. 121. MEDICAL CRITERIA REQUIREMENTS. 

17 (a) DEFINITIONS.—In this section, the following defi18 nitions shall apply: 

19 (1) ASBESTOSIS DETERMINED BY PATHOL20 OGY.—The term ‘‘asbestosis determined by pathol21 ogy’’ means indications of asbestosis based on the 

22 pathological grading system for asbestosis described 

23 in the Special Issues of the Archives of Pathology 

24 and Laboratory Medicine, ‘‘Asbestos-associated Dis25 eases’’, Vol. 106, No. 11, App. 3 (October 8, 1982). 
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1 (2) BILATERAL ASBESTOS-RELATED NONMALIG2 NANT DISEASE.—The term ‘‘bilateral asbestos-re3 lated nonmalignant disease’’ means a diagnosis of 

4 bilateral asbestos-related nonmalignant disease 

5 based on— 

6 (A) an x-ray reading of 1/0 or higher 

7 based on the ILO grade scale; 

8 (B) bilateral pleural plaques; 

9 (C) bilateral pleural thickening; or 

10 (D) bilateral pleural calcification. 

11 (3) BILATERAL PLEURAL DISEASE OF B2.—The 

12 term ‘‘bilateral pleural disease of B2’’ means a chest 

13 wall pleural thickening or plaque with a maximum 

14 width of at least 5 millimeters and a total length of 

at least 1 15 ⁄4 of the projection of the lateral chest wall. 

16 (4) CERTIFIED B-READER.—The term ‘‘cer17 tified B-reader’’ means an individual who is certified 

18 by the National Institute of Occupational Safety and 

19 Health and whose certification by the National Insti20 tute of Occupational Safety and Health is up to 

21 date. 

22 (5) DIFFUSE PLEURAL THICKENING.—The 

23 term ‘‘diffuse pleural thickening’’ means blunting of 

24 either costophrenic angle and bilateral pleural plaque 

25 or bilateral pleural thickening. 
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1 (6) DLCO.—The term ‘‘DLCO’’ means the sin2 gle-breath diffusing capacity of the lung (carbon 

3 monoxide) technique used to measure the volume of 

4 carbon monoxide transferred from the alveoli to 

5 blood in the pulmonary capillaries for each unit of 

6 driving pressure of the carbon monoxide. 

7 (7) FEV1.—The term ‘‘FEV1’’ means forced 

8 expiratory volume (1 second), which is the maximal 

9 volume of air expelled in 1 second during perform10 ance of the spirometric test for forced vital capacity. 

11 (8) FVC.—The term ‘‘FVC’’ means forced vital 

12 capacity, which is the maximal volume of air expired 

13 with a maximally forced effort from a position of 

14 maximal inspiration. 

15 (9) ILO GRADE.—The term ‘‘ILO grade’’ 

16 means the radiological ratings for the presence of 

17 lung changes as determined from a chest x-ray, all 

18 as established from time to time by the International 

19 Labor Organization. 

20 (10) LOWER LIMITS OF NORMAL.—The term 

21 ‘‘lower limits of normal’’ means the fifth percentile 

22 of healthy populations as defined in the American 

23 Thoracic Society statement on lung function testing 

24 (Amer. Rev. Resp. Disease 1991, 144:1202–1218) 

25 and any future revision of the same statement. 
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1 (11) NONSMOKER.—The term ‘‘nonsmoker’’ 

2 means a claimant who— 

3 (A) never smoked; or 

4 (B) has smoked fewer than 100 cigarettes 

5 or the equivalent amount of other tobacco prod6 ucts during the claimant’s lifetime. 

7 (12) PO2.—The term ‘‘PO2’’ means the partial 

8 pressure (tension) of oxygen, which measures the 

9 amount of dissolved oxygen in the blood. 

10 (13) PULMONARY FUNCTION TESTING.—The 

11 term ‘‘pulmonary function testing’’ means 

12 spirometry testing that is in material compliance 

13 with the quality criteria established by the American 

14 Thoracic Society and is performed on equipment 

15 which is in material compliance with the standards 

16 of the American Thoracic Society for technical qual17 ity and calibration. 

18 (14) SUBSTANTIAL OCCUPATIONAL EXPOSURE

19 TO ASBESTOS.— 

20 (A) IN GENERAL.—The term ‘‘substantial 

21 occupational exposure’’ means employment in 

22 an industry and an occupation where for a sub23 stantial portion of a normal work year for that 

24 occupation, the claimant— 

25 (i) handled raw asbestos fibers; 
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1 (ii) fabricated asbestos-containing 

2 products so that the claimant in the fab3 rication process was exposed to raw asbes4 tos fibers; 

5 (iii) altered, repaired, or otherwise 

6 worked with an asbestos-containing prod7 uct such that the claimant was exposed on 

8 a regular basis to asbestos fibers; or 

9 (iv) worked in close proximity to other 

10 workers engaged in the activities described 

11 under clause (i), (ii), or (iii), such that the 

12 claimant was exposed on a regular basis to 

13 asbestos fibers. 

14 (B) REGULAR BASIS.—In this paragraph, 

15 the term ‘‘on a regular basis’’ means on a fre16 quent or recurring basis. 

17 (15) TLC.—The term ‘‘TLC’’ means total lung 

18 capacity, which is the total volume of air in the lung 

19 after maximal inspiration. 

20 (16) WEIGHTED OCCUPATIONAL EXPOSURE.— 

21 (A) IN GENERAL.—The term ‘‘weighted oc22 cupational exposure’’ means exposure for a pe23 riod of years calculated according to the expo24 sure weighting formula under subparagraphs 

25 (B) through (E). 
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1 (B) MODERATE EXPOSURE.—Subject to 

2 subparagraph (E), each year that a claimant’s 

3 primary occupation, during a substantial por4 tion of a normal work year for that occupation, 

5 involved working in areas immediate to where 

6 asbestos-containing products were being in7 stalled, repaired, or removed under cir8 cumstances that involved regular airborne emis9 sions of asbestos fibers, shall count as 1 year 

10 of substantial occupational exposure. 

11 (C) HEAVY EXPOSURE.—Subject to sub12 paragraph (E), each year that a claimant’s pri13 mary occupation, during a substantial portion 

14 of a normal work year for that occupation, in15 volved the direct installation, repair, or removal 

16 of asbestos-containing products such that the 

17 person was exposed on a regular basis to asbes18 tos fibers, shall count as 2 years of substantial 

19 occupational exposure. 

20 (D) VERY HEAVY EXPOSURE.—Subject to 

21 subparagraph (E), each year that a claimant’s 

22 primary occupation, during a substantial por23 tion of a normal work year for that occupation, 

24 was in primary asbestos manufacturing, a 

25 World War II shipyard, or the asbestos insula-
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1 tion trades, such that the person was exposed 

2 on a regular basis to asbestos fibers, shall count 

3 as 4 years of substantial occupational exposure. 

4 (E) DATES OF EXPOSURE.—Each year of 

5 exposure calculated under subparagraphs (B), 

6 (C), and (D) that occurred before 1976 shall be 

7 counted at its full value. Each year from 1976 

to 1986 shall be counted as 1 8 ⁄2 of its value. 

Each year after 1986 shall be counted as 1 9 ⁄10

10 of its value. 

11 (F) OTHER CLAIMS.—Individuals who do 

12 not meet the provisions of subparagraphs (A) 

13 through (E) and believe their post-1976 or 

14 post-1986 exposures exceeded the Occupational 

15 Safety and Health Administration standard 

16 may submit evidence, documentation, work his17 tory, or other information to substantiate non18 compliance with the Occupational Safety and 

19 Health Administration standard (such as lack 

20 of engineering or work practice controls, or pro21 tective equipment) such that exposures would 

22 be equivalent to exposures before 1976 or 1986, 

23 or to documented exposures in similar jobs or 

24 occupations where control measures had not 

25 been implemented. Claims under this subpara-
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1 graph shall be evaluated on an individual basis 

2 by a Physicians Panel. 

3 (b) MEDICAL EVIDENCE.— 

4 (1) LATENCY.—Unless otherwise specified, all 

5 diagnoses of an asbestos-related disease for a level 

6 under this section shall be accompanied by— 

7 (A) a statement by the physician providing 

8 the diagnosis that at least 10 years have 

9 elapsed between the date of first exposure to as10 bestos or asbestos-containing products and the 

11 diagnosis; or 

12 (B) a history of the claimant’s exposure 

13 that is sufficient to establish a 10-year latency 

14 period between the date of first exposure to as15 bestos or asbestos-containing products and the 

16 diagnosis. 

17 (2) DIAGNOSTIC GUIDELINES.—All diagnoses of 

18 asbestos-related diseases shall be based upon— 

19 (A) for disease Levels I through V, in the 

20 case of a claimant who was living at the time 

21 the claim was filed— 

22 (i) a physical examination of the 

23 claimant by the physician providing the di24 agnosis; 
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1 (ii) an evaluation of smoking history 

2 and exposure history before making a diag3 nosis; 

4 (iii) an x-ray reading by a certified B5 reader; and 

6 (iv) pulmonary function testing in the 

7 case of disease Levels III, IV, and V; 

8 (B) for disease Levels I through V, in the 

9 case of a claimant who was deceased at the 

10 time the claim was filed, a report from a physi11 cian based upon a review of the claimant’s med12 ical records which shall include— 

13 (i) pathological evidence of the non14 malignant asbestos-related disease; or 

15 (ii) an x-ray reading by a certified B16 reader; 

17 (C) for disease Levels VI through IX, in 

18 the case of a claimant who was living at the 

19 time the claim was filed— 

20 (i) a physical examination by the 

21 claimant’s physician providing the diag22 nosis; or 

23 (ii) a diagnosis of such a malignant 

24 asbestos-related disease, as described in 
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1 this section, by a board-certified patholo2 gist; and 

3 (D) for disease Levels VI through IX, in 

4 the case of a claimant who was deceased at the 

5 time the claim was filed— 

6 (i) a diagnosis of such a malignant as7 bestos-related disease, as described in this 

8 section, by a board-certified pathologist; 

9 and 

10 (ii) a report from a physician based 

11 upon a review of the claimant’s medical 

12 records. 

13 (3) CREDIBILITY OF MEDICAL EVIDENCE.—To 

14 ensure the medical evidence provided in support of 

15 a claim is credible and consistent with recognized 

16 medical standards, a claimant under this title may 

17 be required to submit— 

18 (A) x-rays or computerized tomography; 

19 (B) detailed results of pulmonary function 

20 tests; 

21 (C) laboratory tests; 

22 (D) tissue samples; 

23 (E) results of medical examinations; 

24 (F) reviews of other medical evidence; and 
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1 (G) medical evidence that complies with 

2 recognized medical standards regarding equip3 ment, testing methods, and procedure to ensure 

4 the reliability of such evidence as may be sub5 mitted. 

6 (c) EXPOSURE EVIDENCE.— 

7 (1) IN GENERAL.—To qualify for any disease 

8 level, the claimant shall demonstrate— 

9 (A) a minimum exposure to asbestos or as10 bestos-containing products; 

11 (B) the exposure occurred in the United 

12 States, its territories or possessions, or while a 

13 United States citizen, while an employee of an 

14 entity organized under any Federal or State law 

15 regardless of location, or while a United States 

16 citizen while serving on any United States 

17 flagged or owned ship, provided the exposure 

18 results from such employment or service; and 

19 (C) any additional asbestos exposure re20 quirement under this section. 

21 (2) PROOF OF EXPOSURE.— 

22 (A) AFFIDAVITS.—Exposure to asbestos 

23 sufficient to satisfy the exposure requirements 

24 for any disease level may be established by an 

25 affidavit of— 
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1 (i) the claimant; or 

2 (ii) if the claimant is deceased, a co3 worker or a family member, if the affidavit 

4 of the claimant, co-worker, or family mem5 ber is found in proceedings under this title 

6 to be reasonably reliable, attesting to the 

7 claimant’s exposure; and is credible and is 

8 not contradicted by other evidence. 

9 (B) OTHER PROOF.—Exposure to asbestos 

10 may alternatively be established by invoices, 

11 construction or other similar records, or any 

12 other reasonably reliable evidence. 

13 (3) TAKE-HOME EXPOSURE.— 

14 (A) IN GENERAL.—A claimant may alter15 natively satisfy the medical criteria require16 ments of this section where a claim is filed by 

17 a person who alleges their exposure to asbestos 

18 was the result of living with a person who, if 

19 the claim had been filed by that person, would 

20 have met the exposure criteria for the given dis21 ease level, and the claimant lived with such per22 son for the time period necessary to satisfy the 

23 exposure requirement, for the claimed disease 

24 level. 
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1 (B) REVIEW.—Except for claims for dis2 ease Level IX (mesothelioma), all claims alleg3 ing take-home exposure shall be submitted as 

4 an exceptional medical claim under section 

5 121(f)(g) for review by a Physicians Panel. 

6 (4) WAIVER FOR WORKERS AND RESIDENTS OF

7 LIBBY, MONTANA.—Because of the unique nature of 

8 the asbestos exposure related to the vermiculite min9 ing and milling operations in Libby, Montana, the 

10 Administrator shall waive the exposure requirements 

11 under this subtitle for individuals who worked at the 

12 vermiculite mining and milling facility in Libby, 

13 Montana, or lived or worked within a 20-mile radius 

14 of Libby, Montana, for at least 12 consecutive 

15 months before December 31, 2004. Claimants under 

16 this section shall provide such supporting docu17 mentation as the Administrator shall require. 

18 (5) EXPOSURE PRESUMPTIONS.— 

19 (A) IN GENERAL.—The Administrator 

20 shall prescribe rules identifying specific indus21 tries, occupations within such industries, and 

22 time periods in which workers employed in 

23 those industries or occupations typically had 

24 substantial occupational exposure to asbestos as 

25 defined under section 121(a). Until 5 years 
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1 after the Administrator certifies that the Fund 

2 is paying claims at a reasonable rate, the indus3 tries, occupations and time periods identified by 

4 the Administrator shall at a minimum include 

5 those identified in the 2002 Trust Distribution 

6 Process of the Manville Personal Injury Settle7 ment Trust as of January 1, 2005, as indus8 tries, occupations and time periods in which 

9 workers were presumed to have had significant 

10 occupational exposure to asbestos. Thereafter, 

11 the Administrator may by rule modify or elimi12 nate those exposure presumptions required to 

13 be adopted from the Manville Personal Injury 

14 Settlement Trust, if there is evidence that dem15 onstrates that the typical exposure for workers 

16 in such industries and occupations during such 

17 time periods did not constitute substantial occu18 pational exposure in asbestos. 

19 (B) CLAIMANTS ENTITLED TO PRESUMP20 TIONS.—Any claimant who demonstrates 

21 through meaningful and credible evidence that 

22 such claimant was employed during relevant 

23 time periods in industries or occupations identi24 fied under subparagraph (A) shall be entitled to 

25 a presumption that the claimant had substan-
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1 tial occupational exposure to asbestos during 

2 those time periods. That presumption shall not 

3 be conclusive, and the Administrator may find 

4 that the claimant does not have substantial oc5 cupational exposure if other information dem6 onstrates that the claimant did not in fact have 

7 substantial occupational exposure during any 

8 part of the relevant time periods. 

9 (C) CRITERIA REQUIREMENTS.—Nothing in 

10 subparagraphs (A) or (B) shall negate the expo11 sure or medical criteria requirements in section 

12 121, for the purpose of receiving compensation 

13 from the Fund. 

14 (6) PENALTY FOR FALSE STATEMENT.—Any 

15 false information submitted under this subsection 

16 shall be subject to section 1348 of title 18, United 

17 States Code (as added by this Act). 

18 (d) ASBESTOS DISEASE LEVELS.— 

19 (1) NONMALIGNANT LEVEL I.—To receive Level 

20 I compensation, a claimant shall provide— 

21 (A) a diagnosis of bilateral asbestos-related 

22 nonmalignant disease; and 

23 (B) evidence of 5 years cumulative occupa24 tional exposure to asbestos. 
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1 (2) NONMALIGNANT LEVEL II.—To receive 

2 Level II compensation, a claimant shall provide— 

3 (A) a diagnosis of bilateral asbestos-related 

4 nonmalignant disease with ILO grade of 1/1 or 

5 greater, and showing small irregular opacities 

6 of shape or size, either ss, st, or tt, and present 

7 in both lower lung zones, or asbestosis deter8 mined by pathology, or blunting of either 

9 costophrenic angle and bilateral pleural plaque 

10 or bilateral pleural thickening of at least grade 

11 B2 or greater, or bilateral pleural disease of 

12 grade B2 or greater; 

13 (B) evidence of TLC less than 80 percent 

14 or FVC less than the lower limits of normal, 

15 and FEV1/FVC ratio less than 65 percent; 

16 (C) evidence of 5 or more weighted years 

17 of substantial occupational exposure to asbes18 tos; and 

19 (D) supporting medical documentation, 

20 such as a written opinion by the examining or 

21 diagnosing physician, according to the diag22 nostic guidelines in section 121(b)(2), estab23 lishing asbestos exposure as a substantial con24 tributing factor in causing the pulmonary con25 dition in question. 
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1 (3) NONMALIGNANT LEVEL III.—To receive 

2 Level III compensation a claimant shall provide— 

3 (A) a diagnosis of bilateral asbestos-related 

4 nonmalignant disease with ILO grade of 1/0 or 

5 greater and showing small irregular opacities of 

6 shape or size, either ss, st, or tt, and present 

7 in both lower lung zones, or asbestosis deter8 mined by pathology, or diffuse pleural thick9 ening, or bilateral pleural disease of B2 or 

10 greater; 

11 (B) evidence of TLC less than 80 percent, 

12 FVC less than the lower limits of normal and 

13 FEV1/FVC ratio greater than or equal to 65 

14 percent, or evidence of a decline in FVC of 20 

15 percent or greater, after allowing for the ex16 pected decrease due to aging, and an FEV1/ 

17 FVC ratio greater than or equal to 65 percent 

18 documented with a second spirometry; 

19 (C) evidence of 5 or more weighted years 

20 of substantial occupational exposure to asbes21 tos; and 

22 (D) supporting medical documentation, 

23 such as a written opinion by the examining or 

24 diagnosing physician, according to the diag25 nostic guidelines in section 121(b)(2)— 
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1 (i) establishing asbestos exposure as a 

2 substantial contributing factor in causing 

3 the pulmonary condition in question; and 

4 (ii) excluding other more likely causes 

5 of that pulmonary condition. 

6 (4) NONMALIGNANT LEVEL IV.—To receive 

7 Level IV compensation a claimant shall provide— 

8 (A) diagnosis of bilateral asbestos-related 

9 nonmalignant disease with ILO grade of 1/1 or 

10 greater and showing small irregular opacities of 

11 shape or size, either ss, st, or tt, and present 

12 in both lower lung zones, or asbestosis deter13 mined by pathology, or diffuse pleural thick14 ening, or bilateral pleural disease of B2 or 

15 greater; 

16 (B) evidence of TLC less than 60 percent 

17 or FVC less than 60 percent, and FEV1/FVC 

18 ratio greater than or equal to 65 percent; 

19 (C) evidence of 5 or more weighted years 

20 of substantial occupational exposure to asbestos 

21 before diagnosis; and 

22 (D) supporting medical documentation, 

23 such as a written opinion by the examining or 

24 diagnosing physician, according to the diag25 nostic guidelines in section 121(b)(2)— 
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1 (i) establishing asbestos exposure as a 

2 substantial contributing factor in causing 

3 the pulmonary condition in question; and 

4 (ii) excluding other more likely causes 

5 of that pulmonary condition. 

6 (5) NONMALIGNANT LEVEL V.—To receive 

7 Level V compensation a claimant shall provide— 

8 (A) diagnosis of bilateral asbestos-related 

9 nonmalignant disease with ILO grade of 1/1 or 

10 greater and showing small irregular opacities of 

11 shape or size, either ss, st, or tt, and present 

12 in both lower lung zones, or asbestosis deter13 mined by pathology, or diffuse pleural thick14 ening, or bilateral pleural disease of B2 or 

15 greater; 

16 (B)(i) evidence of TLC less than 50 per17 cent or FVC less than 50 percent, and FEV1/ 

18 FVC ratio greater than or equal to 65 percent; 

19 (ii) DLCO less than 40 percent of pre20 dicted, plus a FEV1/FVC ratio not less than 65 

21 percent; or 

22 (iii) PO2 less than 55 mm/Hg, plus a 

23 FEV1/FVC ratio not less than 65 percent; 
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1 (C) evidence of 5 or more weighted years 

2 of substantial occupational exposure to asbes3 tos; and 

4 (D) supporting medical documentation, 

5 such as a written opinion by the examining or 

6 diagnosing physician, according to the diag7 nostic guidelines in section 121(b)(2)— 

8 (i) establishing asbestos exposure as a 

9 substantial contributing factor in causing 

10 the pulmonary condition in question; and 

11 (ii) excluding other more likely causes 

12 of that pulmonary condition. 

13 (6) MALIGNANT LEVEL VI.— 

14 (A) IN GENERAL.—To receive Level VI 

15 compensation a claimant shall provide— 

16 (i) a diagnosis of a primary colorectal, 

17 laryngeal, esophageal, pharyngeal, or stom18 ach cancer on the basis of findings by a 

19 board certified pathologist; 

20 (ii) evidence of a bilateral asbestos-re21 lated nonmalignant disease; 

22 (iii) evidence of 15 or more weighted 

23 years of substantial occupational exposure 

24 to asbestos; and 
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1 (iv) supporting medical documenta2 tion, such as a written opinion by the ex3 amining or diagnosing physician, according 

4 to the diagnostic guidelines in section 

5 121(b)(2), establishing asbestos exposure as 

6 a substantial contributing factor in causing 

7 the cancer in question. 

8 (B) REFERRAL TO PHYSICIANS PANEL.— 

9 All claims filed with respect to Level VI under 

10 this paragraph shall be referred to a Physicians 

11 Panel for a determination that it is more prob12 able than not that asbestos exposure was a sub13 stantial contributing factor in causing the other 

14 cancer in question. If the claimant meets the 

15 requirements of subparagraph (A), there shall 

16 be a presumption of eligibility for the scheduled 

17 value of compensation unless there is evidence 

18 determined by the Physicians Panel that rebuts 

19 that presumption. In making its determination 

20 under this subparagraph, the Physicians Panel 

21 shall consider the intensity and duration of ex22 posure, smoking history, and the quality of evi23 dence relating to exposure and smoking. Claim24 ants shall bear the burden of producing mean-
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1 ingful and credible evidence of their smoking 

2 history as part of their claim submission. 

3 (7) MALIGNANT LEVEL VII.— 

4 (A) IN GENERAL.—To receive Level VII 

5 compensation, a claimant shall provide— 

6 (i) a diagnosis of a primary lung can7 cer disease on the basis of findings by a 

8 board certified pathologist; 

9 (ii) evidence of bilateral pleural 

10 plaques or bilateral pleural thickening or 

11 bilateral pleural calcification by chest x-ray 

12 or such diagnostic methodology supported 

13 by the findings of the Institute of Medicine 

14 under subsection (f); 

15 (iii) evidence of 12 or more weighted 

16 years of substantial occupational exposure 

17 to asbestos; and 

18 (iv) supporting medical documenta19 tion, such as a written opinion by the ex20 amining or diagnosing physician, according 

21 to the diagnostic guidelines in section 

22 121(b)(2), establishing asbestos exposure as 

23 a substantial contributing factor in causing 

24 the lung cancer in question. 
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1 (B) PHYSICIANS PANEL.—A claimant filing 

2 a claim relating to Level VII under this para3 graph may request that the claim be referred to 

4 a Physicians Panel for a determination of 

5 whether the claimant qualifies for the disease 

6 category and relevant smoking status. In mak7 ing its determination under this subparagraph, 

8 the Physicians Panel shall consider the inten9 sity and duration of exposure, smoking history, 

10 and the quality of evidence relating to exposure 

11 and smoking. Claimants shall bear the burden 

12 of producing meaningful and credible evidence 

13 of their smoking history as part of their claim 

14 submission. 

15 (8) MALIGNANT LEVEL VIII.— 

16 (A) IN GENERAL.—To receive Level VIII 

17 compensation, a claimant shall provide a diag18 nosis— 

19 (i) of a primary lung cancer disease 

20 on the basis of findings by a board cer21 tified pathologist; 

22 (ii)(I) of— 

23 (aa) asbestosis based on a chest 

24 x-ray of at least 1/0 on the ILO scale 

25 and showing small irregular opacities 
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1 of shape or size, either ss, st, or tt, 

2 and present in both lower lung zones; 

3 and 

4 (bb) 10 or more weighted years 

5 of substantial occupational exposure 

6 to asbestos; 

7 (II) of— 

8 (aa) asbestosis based on a chest 

9 x-ray of at least 1/1 on the ILO scale 

10 and showing small irregular opacities 

11 of shape or size, either ss, st, or tt, 

12 and present in both lower lung zones; 

13 and 

14 (bb) 8 or more weighted years of 

15 substantial occupational exposure to 

16 asbestos; 

17 (III) asbestosis determined by pathol18 ogy and 10 or more weighted years of sub19 stantial occupational exposure to asbestos; 

20 or 

21 (IV) asbestosis as determined by CT 

22 Scan, the cost of which shall not be borne 

23 by the Fund. The CT Scan must be inter24 preted by a board certified radiologist and 
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1 confirmed by a board certified radiologist; 

2 and 

3 (iii) supporting medical documenta4 tion, such as a written opinion by the ex5 amining or diagnosing physician, according 

6 to the diagnostic guidelines in section 

7 121(b)(2), establishing asbestos exposure as 

8 a substantial contributing factor in causing 

9 the lung cancer in question; and 10 or 

10 more weighted years of substantial occupa11 tional exposure to asbestos. 

12 (B) PHYSICIANS PANEL.—A claimant filing 

13 a claim with respect to Level VIII under this 

14 paragraph may request that the claim be re15 ferred to a Physicians Panel for a determina16 tion of whether the claimant qualifies for the 

17 disease category and relevant smoking status. 

18 In making its determination under this sub19 paragraph, the Physicians Panel shall consider 

20 the intensity and duration of exposure, smoking 

21 history, and the quality of evidence relating to 

22 exposure and smoking. Claimants shall bear the 

23 burden of producing meaningful and credible 

24 evidence of their smoking history as part of 

25 their claim submission. 
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1 (9) MALIGNANT LEVEL IX.—To receive Level 

2 IX compensation, a claimant shall provide— 

3 (A) a diagnosis of malignant mesothelioma 

4 disease on the basis of findings by a board cer5 tified pathologist; and 

6 (B) credible evidence of identifiable expo7 sure to asbestos resulting from— 

8 (i) occupational exposure to asbestos; 

9 (ii) exposure to asbestos fibers 

10 brought into the home of the claimant by 

11 a worker occupationally exposed to asbes12 tos; 

13 (iii) exposure to asbestos fibers result14 ing from living or working in the proxi15 mate vicinity of a factory, shipyard, build16 ing demolition site, or other operation that 

17 regularly released asbestos fibers into the 

18 air due to operations involving asbestos at 

19 that site; or 

20 (iv) other identifiable exposure to as21 bestos fibers, in which case the claim shall 

22 be reviewed by a Physicians Panel under 

23 section 121(f) subsection (g) for a deter24 mination of eligibility. 
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1 (e) INSTITUTE OF MEDICINE STUDY.—Not later 

2 than April 1, 2006, the Institute of Medicine of the Na3 tional Academy of Sciences shall complete a study con4 tracted with the National Institutes of Health of the to 

5 determine whether there is a causal link between asbestos 

6 exposure and other cancers, including colorectal, laryn7 geal, esophageal, pharyngeal, and stomach cancers, except 

8 for mesothelioma and lung cancers. The Institute of Medi9 cine shall issue a report on its findings on causation, which 

10 shall be transmitted to Congress, the Administrator, the 

11 Advisory Committee on Asbestos Disease Compensation or 

12 the Medical Advisory Committee, and the Physicians Pan13 els. The Institute of Medicine report shall be binding on 

14 the Administrator and the Physicians Panels for purposes 

15 of determining whether asbestos exposure is a substantial 

16 contributing factor under section 121(d)(6)(B). in causing 

17 the other cancerous disease in question under subsection 

18 (d)(6). If asbestos is not a substantial contributing factor 

19 to the particular cancerous disease under subsection (d)(6), 

20 subsection (d)(6) shall not apply with respect to that disease 

21 and no claim may be filed with, or award paid from, the 

22 Fund with respect to that disease under malignant Level 

23 VI. 

24 (f) INSTITUTE OF MEDICINE STUDY ON CT SCANS.— 
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1 (1) IN GENERAL.—Not later than April 1, 2006, 

2 the Institute of Medicine of the National Academy of 

3 Sciences shall complete a study contracted with the 

4 National Institutes of Health of the use of CT scans 

5 as a diagnostic tool for bilateral pleural plaques, bi6 lateral pleural thickening, or bilateral pleural calcifi7 cation. 

8 (2) FINDINGS.—The Institute of Medicine shall 

9 make and issue findings based on the study required 

10 under paragraph (1) on whether— 

11 (A) CT scans are generally accepted in the 

12 medical profession to detect bilateral pleural 

13 plaques, bilateral pleural thickening, or bilateral 

14 pleural calcification; and 

15 (B) professional standards of practice exist 

16 to allow for the Administrator’s reasonable reli17 ance on such as evidence of bilateral pleural 

18 plaques, bilateral pleural thickening, or bilateral 

19 pleural calcification under the Fund. 

20 (3) REPORT.—The Institute of Medicine shall 

21 issue a report on the findings required under para22 graph (2), which shall be transmitted to Congress, the 

23 Administrator, the Advisory Committee on Asbestos 

24 Disease Compensation or the Medical Advisory Com25 mittee, and the Physicians Panels. 
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1 (4) REPORT BINDING ON THE ADMINISTRATOR.— 

2 The Institute of Medicine report required under para3 graph (3) shall be binding on the Administrator and 

4 the Physicians Panels for purposes of determining re5 liable and acceptable evidence that may be submitted 

6 for a Level VII claim under subsection (d)(7). 

7 (f)(g) EXCEPTIONAL MEDICAL CLAIMS.— 

8 (1) IN GENERAL.—A claimant who does not 

9 meet the medical criteria requirements under this 

10 section may apply for designation of the claim as an 

11 exceptional medical claim. 

12 (2) APPLICATION.—When submitting an appli13 cation for review of an exceptional medical claim, the 

14 claimant shall— 

15 (A) state that the claim does not meet the 

16 medical criteria requirements under this sec17 tion; or 

18 (B) seek designation as an exceptional 

19 medical claim within 60 days after a determina20 tion that the claim is ineligible solely for failure 

21 to meet the medical criteria requirements under 

22 subsection (d). 

23 (3) REPORT OF PHYSICIAN.— 

24 (A) IN GENERAL.—Any claimant applying 

25 for designation of a claim as an exceptional 
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1 medical claim shall support an application filed 

2 under paragraph (1) with a report from a phy3 sician meeting the requirements of this section. 

4 (B) CONTENTS.—A report filed under sub5 paragraph (A) shall include— 

6 (i) a complete review of the claimant’s 

7 medical history and current condition; 

8 (ii) such additional material by way of 

9 analysis and documentation as shall be 

10 prescribed by rule of the Administrator; 

11 and 

12 (iii) a detailed explanation as to why 

13 the claim meets the requirements of para14 graph (4)(B). 

15 (4) REVIEW.— 

16 (A) IN GENERAL.—The Administrator 

17 shall refer all applications and supporting docu18 mentation submitted under paragraph (2) to a 

19 Physicians Panel for review for eligibility as an 

20 exceptional medical claim. 

21 (B) STANDARD.—A claim shall be des22 ignated as an exceptional medical claim if the 

23 claimant, for reasons beyond the control of the 

24 claimant, cannot satisfy the requirements under 

25 this section, but is able, through comparably re-
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1 liable evidence that meets the standards under 

2 this section, to show that the claimant has an 

3 asbestos-related condition that is substantially 

4 comparable to that of a medical condition that 

5 would satisfy the requirements of a category 

6 under this section. 

7 (C) ADDITIONAL INFORMATION.—A Physi8 cians Panel may request additional reasonable 

9 testing to support the claimant’s application. 

10 (D) CT SCAN.—A claimant may submit a 

11 CT Scan in addition to an x-ray. 

12 (5) APPROVAL.— 

13 (A) IN GENERAL.—If the Physicians Panel 

14 determines that the medical evidence is suffi15 cient to show a comparable asbestos-related 

16 condition, it shall issue a certificate of medical 

17 eligibility designating the category of asbestos18 related injury under this section for which the 

19 claimant shall be eligible to seek compensation. 

20 (B) REFERRAL.—Upon the issuance of a 

21 certificate under subparagraph (A), the Physi22 cians Panel shall submit the claim to the Ad23 ministrator, who shall give due consideration to 

24 the recommendation of the Physicians Panel in 
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1 determining whether the claimant meets the re2 quirements for compensation under this Act. 

3 (6) RESUBMISSION.—Any claimant whose appli4 cation for designation as an exceptional medical 

5 claim is rejected may resubmit an application if new 

6 evidence becomes available. The application shall 

7 identify any prior applications and state the new evi8 dence that forms the basis of the resubmission. 

9 (7) RULES.—The Administrator shall promul10 gate rules governing the procedures for seeking des11 ignation of a claim as an exceptional medical claim. 

12 (8) LIBBY, MONTANA.— 

13 (A) IN GENERAL.—A Libby, Montana, 

14 claimant may elect to have the claimant’s 

15 claims designated as exceptional medical claims 

16 and referred to a Physicians Panel for review. 

17 In reviewing the medical evidence submitted by 

18 a Libby, Montana claimant in support of that 

19 claim, the Physicians Panel shall take into con20 sideration the unique and serious nature of as21 bestos exposure in Libby, Montana, including 

22 the nature of the pleural disease related to as23 bestos exposure in Libby, Montana. 

24 (B) CLAIMS.—For all claims for Levels II 

25 through IV filed by Libby, Montana claimants, 
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1 as described under subsection (c)(4), once the 

2 Administrator or the Physicians Panel issues a 

3 certificate of medical eligibility to a Libby, 

4 Montana claimant, and notwithstanding the dis5 ease category designated in the certificate or 

6 the eligible disease or condition established in 

7 accordance with this section, or the value of the 

8 award determined in accordance with section 

9 114, the Libby, Montana claimant shall be enti10 tled to an award that is not less than that 

11 awarded to claimants who suffer from asbes12 tosis, Level IV. For all malignant claims filed 

13 by Libby, Montana claimants, the Libby, Mon14 tana claimant shall be entitled to an award that 

15 corresponds to the malignant disease category 

16 designated by the Administrator or the Physi17 cians Panel. 

18 (C) EVALUATION OF CLAIMS.—For purposes 

19 of evaluating exceptional medical claims from 

20 Libby, Montana, a claimant shall be deemed to 

21 have a comparable asbestos-related condition to 

22 an asbestos disease category Level IV, and shall 

23 be deemed to qualify for compensation at Level 

24 IV, if the claimant provides— 
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1 (i) a diagnosis of bilateral asbestos re2 lated nonmalignant disease; 

3 (ii) evidence of TLC or FVC less than 

4 80 percent; and 

5 (iii) supporting medical documenta6 tion establishing asbestos exposure as a sub7 stantial contributing factor in causing the 

8 pulmonary condition in question, and ex9 cluding more likely causes of that pul10 monary condition. 

11 (9) STUDY OF VERMICULITE PROCESSING FACILI12 TIES.— 

13 (A) IN GENERAL.—As part of the ongoing 

14 National Asbestos Exposure Review (in this sec15 tion referred to as ‘‘NAER’’) being conducted by 

16 the Agency for Toxic Substances and Disease 

17 Registry (in this section referred to as 

18 ‘‘ATSDR’’) of facilities that received vermiculite 

19 ore from Libby, Montana, the ATSDR shall con20 duct a study of all Phase 1 sites where— 

21 (i) the Environmental Protection 

22 Agency has mandated further action at the 

23 site on the basis of current contamination; 

24 or 
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1 (ii) the site was an exfoliation facility 

2 that processed roughly 100,000 tons or more 

3 of vermiculite from the Libby mine. 

4 (B) STUDY BY ATSDR.—The study by the 

5 ATSDR shall evaluate the facilities identified 

6 under subparagraph (A) and compare— 

7 (i) the levels of asbestos emissions from 

8 such facilities; 

9 (ii) the resulting asbestos contamina10 tion in areas surrounding such facilities; 

11 (iii) the levels of exposure to residents 

12 living in the vicinity of such facilities; 

13 (iv) the risks of asbestos-related disease 

14 to the residents living in the vicinity of 

15 such facilities; and 

16 (v) the risk of asbestos-related mor17 tality to residents living in the vicinity of 

18 such facilities, 

19 to the emissions, contamination, exposures, and 

20 risks resulting from the mining of vermiculite 

21 ore in Libby, Montana. 

22 (C) RESULTS OF STUDY.—The results of the 

23 study required under this paragraph shall be 

24 transmitted to the Administrator. If the ATSDR 

25 finds as a result of such study that, for any par-
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1 ticular facility, the levels of emissions from, the 

2 resulting contamination caused by, the levels of 

3 exposure to nearby residents from, and the risks 

4 of asbestos-related disease and asbestos-related 

5 mortality to nearby residents from such facility 

6 are substantially equivalent to those of Libby, 

7 Montana, then the Administrator shall treat 

8 claims from residents surrounding such facilities 

9 the same as claims of residents of Libby, Mon10 tana, and such residents shall have all the rights 

11 of residents of Libby, Montana, under this Act. 

12 As part of the results of its study, the ATSDR 

13 shall prescribe for any such facility the relevant 

14 geographic and temporal criteria under which 

15 the exposures and risks to the surrounding resi16 dents are substantially equivalent to those of 

17 residents of Libby, Montana, and therefore qual18 ify for treatment under this paragraph. 

19 (10) NATURALLY OCCURRING ASBESTOS.—A 

20 claimant who has been exposed to naturally occurring 

21 asbestos may file an exceptional medical claim with 

22 the Fund. 

23 (h) GUIDELINES FOR CT SCANS.—The Administrator 

24 shall commission the American College of Radiology to de25 velop, in consultation with the American Thoracic Society, 
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1 American College of Chest Physicians, and Institute of Med2 icine, guidelines and a methodology for the use of CT scans 

3 as a diagnostic tool for bilateral pleural plaques, bilateral 

4 pleural thickening, or bilateral pleural calcification under 

5 the Fund. After development, such guidelines and method6 ology shall be used for diagnostic purposes under the Fund. 

7 Subtitle D—Awards 

8 SEC. 131. AMOUNT. 

9 (a) IN GENERAL.—An asbestos claimant who meets 

10 the requirements of section 111 shall be entitled to an 

11 award in an amount determined by reference to the benefit 

12 table and the matrices developed under subsection (b). 

13 (b) BENEFIT TABLE.— 

14 (1) IN GENERAL.—An asbestos claimant with 

15 an eligible disease or condition established in accord16 ance with section 121 shall be eligible for an award 

17 as determined under this subsection. The award for 

18 all asbestos claimants with an eligible disease or con19 dition established in accordance with section 121 

20 shall be according to the following schedule: 

Level Scheduled Condition or Disease Scheduled Value 

I Asbestosis/Pleural 

Disease A 

Medical Monitoring 

II Mixed Disease With 

Impairment 

$25,000 

III Asbestosis/Pleural 

Disease B 

$100,000 

IV Severe Asbestosis $400,000 

V Disabling Asbestosis $850,000 
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VI Other Cancer $200,000 

VII Lung Cancer With 

Pleural Disease 

smokers, $300,000;

ex-smokers, $725,000;

non-smokers, $800,000 

VIII Lung Cancer With Asbestosis smokers, $600,000;

ex-smokers, $975,000;

non-smokers, $1,100,000 

IX Mesothelioma $1,100,000 

1 (2) DEFINITIONS.—In this section— 

2 (A) the term ‘‘nonsmoker’’ means a claim3 ant who— 

4 (i) never smoked; or 

5 (ii) has smoked fewer than 100 ciga6 rettes or the equivalent of other tobacco 

7 products during the claimant’s lifetime; 

8 and 

9 (B) the term ‘‘ex-smoker’’ means a claim10 ant who has not smoked during any portion of 

11 the 12-year period preceding the diagnosis of 

12 lung cancer. 

13 (3) LEVEL IX ADJUSTMENTS.— 

14 (A) IN GENERAL.—If the Administrator 

15 determines that the impact of all adjustments 

16 under this paragraph on the Fund is cost neu17 tral, the Administrator may— 

18 (i) increase awards for Level IX 

19 claimants who are less than 51 years of 

20 age with dependent children; and 
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1 (ii) decrease awards for Level IX 

2 claimants who are at least 65 years of age, 

3 but in no case shall an award for Level IX 

4 be less than $1,000,000. 

5 (B) IMPLEMENTATION.—Before making 

6 adjustments under this paragraph, the Admin7 istrator shall publish in the Federal Register 

8 notice of, and a plan for, making such adjust9 ments. 

10 (4) SPECIAL ADJUSTMENT FOR FELA CASES.— 

11 (A) IN GENERAL.—A claimant who would 

12 be eligible to bring a claim under the Act of 

13 April 22, 1908 (45 U.S.C. 51 et seq.), com14 monly known as the Employers’ Liability Act, 

15 but for section 403 of this Act, shall be eligible 

16 for a special adjustment under this paragraph. 

17 (B) REGULATIONS.— 

18 (i) IN GENERAL.—Not later than 90 

19 days after the date of enactment of this 

20 Act, the Administrator shall promulgate 

21 regulations relating to special adjustments 

22 under this paragraph. 

23 (ii) JOINT PROPOSAL.—Not later than 

24 45 days after the date of enactment of this 

25 Act, representatives of railroad manage-
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1 ment and representatives of railroad labor 

2 shall submit to the Administrator a joint 

3 proposal for regulations describing the eli4 gibility for and amount of special adjust5 ments under this paragraph. If a joint pro6 posal is submitted, the Administrator shall 

7 promulgate regulations that reflect the 

8 joint proposal. 

9 (iii) ABSENCE OF JOINT PROPOSAL.— 

10 If railroad management and railroad labor 

11 are unable to agree on a joint proposal 

12 within 45 days after the date of enactment 

13 of this Act, the benefits prescribed in sub14 paragraph (E) shall be the benefits avail15 able to claimants, and the Administrator 

16 shall promulgate regulations containing 

17 such benefits. 

18 (iv) REVIEW.—The parties partici19 pating in the arbitration may file in the 

20 United States District Court for the Dis21 trict of Columbia a petition for review of 

22 the Administrator’s order. The court shall 

23 have jurisdiction to affirm the order of the 

24 Administrator, or to set it aside, in whole 

25 or in part, or it may remand the pro-
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1 ceedings to the Administrator for such fur2 ther action as it may direct. On such re3 view, the findings and order of the Admin4 istrator shall be conclusive on the parties, 

5 except that the order of the Administrator 

6 may be set aside, in whole or in parts or 

7 remanded to the Administrator, for failure 

8 of the Administrator to comply with the re9 quirements of this section, for failure of 

10 the order to conform, or confine itself, to 

11 matters within the scope of the Adminis12 trator’s jurisdiction, or for fraud or cor13 ruption. 

14 (C) ELIGIBILITY.—An individual eligible to 

15 file a claim under the Act of April 22, 1908 (45 

16 U.S.C. 51 et seq.), commonly known as the 

17 Employers’ Liability Act, shall be eligible for a 

18 special adjustment under this paragraph if such 

19 individual meets the criteria set forth in sub20 paragraph (F). 

21 (D) AMOUNT.— 

22 (i) IN GENERAL.—The amount of the 

23 special adjustment shall be based on the 

24 type and severity of asbestos disease, and 

25 shall be 110 percent of the average amount 
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1 an injured individual with a disease caused 

2 by asbestos, as described in section 121(d) 

3 of this Act, would have received, during 

4 the 5-year period before the enactment of 

5 this Act, adjusted for inflation. This ad6 justment shall be in addition to any other 

7 award for which the claimant is eligible 

8 under this Act. The amount of the special 

9 adjustment shall be reduced by an amount 

10 reasonably calculated to take into account 

11 all expenses of litigation normally borne by 

12 plaintiffs, including attorney’s fees. 

13 (ii) LIMITATION.—The amount under 

14 clause (i) may not exceed the amount the 

15 claimant is eligible to receive before apply16 ing the special adjustment under that 

17 clause. 

18 (E) ARBITRATED BENEFITS.—If railroad 

19 management and railroad labor are unable to 

20 agree on a joint proposal within 45 days after 

21 the date of enactment of this Act, the Adminis22 trator shall appoint an arbitrator to determine 

23 the benefits under subparagraph (D). The Ad24 ministrator shall appoint an arbitrator who 

25 shall be acceptable to both railroad manage-
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1 ment and railroad labor. Railroad management 

2 and railroad labor shall each designate their 

3 representatives to participate in the arbitration. 

4 The arbitrator shall submit the benefits levels 

5 to the Administrator not later than 30 days 

6 after appointment and such benefits levels shall 

7 be based on information provided by rail labor 

8 and rail management. The information sub9 mitted to the arbitrator by railroad manage10 ment and railroad labor shall be considered con11 fidential and shall be disclosed to the other 

12 party upon execution of an appropriate con13 fidentiality agreement. Unless the submitting 

14 party provides written consent, neither the arbi15 trator nor either party to the arbitration shall 

16 divulge to any third party any information or 

17 data, in any form, submitted to the arbitrator 

18 under this section. Nor shall either party use 

19 such information or data for any purpose other 

20 than participation in the arbitration proceeding, 

21 and each party shall return to the other any in22 formation it has received from the other party 

23 as soon the arbitration is concluded. Informa24 tion submitted to the arbitrator may not be ad25 mitted into evidence, nor discovered, in any civil 
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1 litigation in Federal or State court. The nature 

2 of the information submitted to the arbitrator 

3 shall be within the sole discretion of the submit4 ting party, and the arbitrator may not require 

5 a party to submit any particular information, 

6 including information subject to a prior con7 fidentiality agreement. 

8 (F) DEMONSTRATION OF ELIGIBILITY.— 

9 (i) IN GENERAL.—A claimant under 

10 this paragraph shall be required to dem11 onstrate— 

12 (I) employment of the claimant 

13 in the railroad industry; 

14 (II) exposure of the claimant to 

15 asbestos as part of that employment; 

16 and 

17 (III) the nature and severity of 

18 the asbestos-related injury. 

19 (ii) MEDICAL CRITERIA.—In order to 

20 be eligible for a special adjustment a 

21 claimant shall meet the criteria set forth in 

22 section 121 that would qualify a claimant 

23 for a payment under Level II or greater. 

24 (5) MEDICAL MONITORING.—An asbestos claim25 ant with asymptomatic exposure, based on the cri-
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1 teria under section 121(d)(1), shall only be eligible 

2 for medical monitoring reimbursement as provided 

3 under section 132. 

4 (6) COST-OF-LIVING ADJUSTMENT.— 

5 (A) IN GENERAL.—Beginning January 1, 

6 2007, award amounts under paragraph (1) 

7 shall be annually increased by an amount equal 

8 to such dollar amount multiplied by the cost-of9 living adjustment, rounded to the nearest 

10 $1,000 increment. 

11 (B) CALCULATION OF COST-OF-LIVING AD12 JUSTMENT.—For the purposes of subparagraph 

13 (A), the cost-of-living adjustment for any cal14 endar year shall be the percentage, if any, by 

15 which the consumer price index for the suc16 ceeding calendar year exceeds the consumer 

17 price index for calendar year 2005. 

18 (C) CONSUMER PRICE INDEX.— 

19 (i) IN GENERAL.—For the purposes of 

20 subparagraph (B), the consumer price 

21 index for any calendar year is the average 

22 of the consumer price index as of the close 

23 of the 12-month period ending on August 

24 31 of such calendar year. 
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1 (ii) DEFINITION.—For purposes of 

2 clause (i), the term ‘‘consumer price 

3 index’’ means the consumer price index 

4 published by the Department of Labor. 

5 The consumer price index series to be used 

6 for award escalations shall include the con7 sumer price index used for all-urban con8 sumers, with an area coverage of the 

9 United States city average, for all items, 

10 based on the 1982–1984 index based pe11 riod, as published by the Department of 

12 Labor. 

13 SEC. 132. MEDICAL MONITORING. 

14 (a) RELATION TO STATUTE OF LIMITATIONS.—The 

15 filing of a claim under this Act that seeks reimbursement 

16 for medical monitoring shall not be considered as evidence 

17 that the claimant has discovered facts that would other18 wise commence the period applicable for purposes of the 

19 statute of limitations under section 113(b). 

20 (b) COSTS.—Reimbursable medical monitoring costs 

21 shall include the costs of a claimant not covered by health 

22 insurance for an examination by the claimant’s physician, 

23 x-ray tests, and pulmonary function tests every 3 years. 

24 (c) REGULATIONS.—The Administrator shall promul25 gate regulations that establish— 
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1 (1) the reasonable costs for medical monitoring 

2 that is reimbursable; and 

3 (2) the procedures applicable to asbestos claim4 ants. 

5 SEC. 133. PAYMENT. 

6 (a) STRUCTURED PAYMENTS.— 

7 (1) IN GENERAL.—An asbestos claimant who is 

8 entitled to an award should receive the amount of 

9 the award through structured payments from the 

10 Fund, made over a period of 3 years, and in no 

11 event more than 4 years after the date of final adju12 dication of the claim. 

13 (2) PAYMENT PERIOD AND AMOUNT.—There 

14 shall be a presumption that any award paid under 

15 this subsection shall provide for payment of— 

16 (A) 40 percent of the total amount in year 

17 1; 

18 (B) 30 percent of the total amount in year 

19 2; and 

20 (C) 30 percent of the total amount in year 

21 3. 

22 (3) EXTENSION OF PAYMENT PERIOD.— 

23 (A) IN GENERAL.—The Administrator 

24 shall develop guidelines to provide for the pay25 ment period of an award under subsection (a) 
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1 to be extended to a 4-year period if such action 

2 is warranted in order to preserve the overall sol3 vency of the Fund. Such guidelines shall include 

4 reference to the number of claims made to the 

5 Fund and the awards made and scheduled to be 

6 paid from the Fund as provided under section 

7 405. 

8 (B) LIMITATIONS.—In no event shall less 

9 than 50 percent of an award be paid in the first 

10 2 years of the payment period under this sub11 section. 

12 (4) ACCELERATED LUMP-SUM payments.— 

13 (A) IN GENERAL.—The Administrator shall 

14 develop guidelines to provide for accelerated 

15 payments 1 lump-sum payment to asbestos 

16 claimants who are mesothelioma victims and 

17 who are alive on the date on which the Admin18 istrator receives notice of the eligibility of the 

19 claimant. Such payments shall be credited 

20 against the first regular payment under the 

21 structured payment plan for the claimant. 

22 (B) TIMING OF PAYMENTS.—Lump-sum 

23 payments shall be made within the shorter of— 
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1 (i) not later than 30 days after the 

2 date the claim is approved by the Adminis3 trator; or 

4 (ii) not later than 6 months after the 

5 date the claim is filed. 

6 (C) TIMING OF PAYMENTS TO BE ADJUSTED

7 WITH RESPECT TO SOLVENCY OF THE FUND.—If 

8 the Administrator determines that solvency of the 

9 Fund would be severely harmed by the timing of 

10 the payments required under subparagraph (B), 

11 the time for such payments may be extended to 

12 the shorter of— 

13 (i) not later than 6 months after the 

14 date the claim is approved by the Adminis15 trator; or 

16 (ii) not later than 11 months after the 

17 date the claim is filed. 

18 (5) EXPEDITED PAYMENTS.— 

19 (A) IN GENERAL.—The Administrator shall 

20 develop guidelines to provide for expedited pay21 ments to asbestos claimants in cases of exigent 

22 circumstances or extreme hardship caused by 

23 asbestos-related injury. health claims as de24 scribed under section 106(c)(2)(B) and (C). 
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1 (B) TIMING OF PAYMENTS.—Total pay2 ments shall be made within the shorter of— 

3 (i) not later than 6 months after the 

4 date the claim is approved by the Adminis5 trator; or 

6 (ii) not later than 1 year after the date 

7 the claim is filed. 

8 (C) TIMING OF PAYMENTS TO BE ADJUSTED

9 WITH RESPECT TO SOLVENCY OF THE FUND.— If 

10 the Administrator determines that solvency of the 

11 Fund would be severely harmed by the timing of 

12 the payments required under subparagraph (B), 

13 the time for such payments may be extended to 

14 the shorter of— 

15 (i) not later than 1 year after the date 

16 the claim is approved by the Administrator; 

17 or 

18 (ii) not later than 2 years after the 

19 date the claim is filed. 

20 (6) ANNUITY.—An asbestos claimant may elect 

21 to receive any payments to which that claimant is 

22 entitled under this title in the form of an annuity. 

23 (b) LIMITATION ON TRANSFERABILITY.—A claim 

24 filed under this Act shall not be assignable or otherwise 

25 transferable under this Act. 
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1 (c) CREDITORS.—An award under this title shall be 

2 exempt from all claims of creditors and from levy, execu3 tion, and attachment or other remedy for recovery or col4 lection of a debt, and such exemption may not be waived. 

5 (d) MEDICARE AS SECONDARY PAYER.—No award 

6 under this title shall be deemed a payment for purposes 

7 of section 1862 of the Social Security Act (42 U.S.C. 

8 1395y). 

9 (e) EXEMPT PROPERTY IN ASBESTOS CLAIMANT’S

10 BANKRUPTCY CASE.—If an asbestos claimant files a peti11 tion for relief under section 301 of title 11, United States 

12 Code, no award granted under this Act shall be treated 

13 as property of the bankruptcy estate of the asbestos claim14 ant in accordance with section 541(b)(6) of title 11, 

15 United States Code. 

16 (f) EFFECT OF PAYMENT.—The full payment of an as17 bestos claim under this section shall be in full satisfaction 

18 of such claim and shall be deemed to operate as a release 

19 to such claim. No claimant with an asbestos claim that has 

20 been fully paid under this section may proceed in the tort 

21 system with respect to such claim. 
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1 SEC. 134. REDUCTION IN BENEFIT PAYMENTS FOR COLLAT2 ERAL SOURCES. SETOFFS FOR COLLATERAL 

3 SOURCE COMPENSATION AND PRIOR 

4 AWARDS. 

5 (a) IN GENERAL.—The amount of an award other6 wise available to an asbestos claimant under this title shall 

7 be reduced by the amount of any collateral source com8 pensation and by any amounts paid or to be paid to the 

9 claimant for a prior award under this Act. 

10 (b) EXCLUSIONS.— 

11 (1) COLLATERAL SOURCE COMPENSATION.—In 

12 no case shall statutory benefits under workers’ com13 pensation laws, special adjustments made under sec14 tion 131(b)(3), occupational or total disability bene15 fits under the Railroad Retirement Act (45 U.S.C. 

16 201 et seq.), sickness benefits under the Railroad 

17 Unemployment Insurance Act (45 U.S.C 351 et 

18 seq.), and veterans’ benefits programs be deemed as 

19 collateral source compensation for purposes of this 

20 section. 

21 (2) PRIOR AWARD PAYMENTS.—Any amounts 

22 paid or to be paid for a prior claim for a nonmalig23 nant disease (Levels I through V) filed against the 

24 Fund shall not be deducted as a setoff against 

25 amounts payable for the second injury claims for a 

26 malignant disease (Levels VI through IX), unless the 
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1 malignancy was diagnosed before the date on which 

2 the nonmalignancy claim was compensated. 

3 SEC. 135. CERTAIN CLAIMS NOT AFFECTED BY PAYMENT 

4 OF AWARDS. 

5 (a) IN GENERAL.—The payment of an award under 

6 section 106 or 133 shall not be considered a form of com7 pensation or reimbursement for a loss for purposes of im8 posing liability on any asbestos claimant receiving such 

9 payment to repay any— 

10 (1) insurance carrier for insurance payments; 

11 or 

12 (2) person or governmental entity on account of 

13 worker’s compensation, health care, or disability 

14 payments. 

15 (b) NO EFFECT ON CLAIMS.—The payment of an 

16 award to an asbestos claimant under section 106 or 133 

17 shall not affect any claim of an asbestos claimant 

18 against— 

19 (1) an insurance carrier with respect to insur20 ance; or 

21 (2) against any person or governmental entity 

22 with respect to worker’s compensation, healthcare, 

23 or disability. 
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1 TITLE II—ASBESTOS INJURY 

2 CLAIMS RESOLUTION FUND 

3 Subtitle A—Asbestos Defendants 

4 Funding Allocation 

5 SEC. 201. DEFINITIONS. 

6 In this subtitle, the following definitions shall apply: 

7 (1) AFFILIATED GROUP.—The term ‘‘affiliated 

8 group’’— 

9 (A) means a defendant participant that is 

10 an ultimate parent and any person whose entire 

11 beneficial interest is directly or indirectly owned 

12 by that ultimate parent on the date of enact13 ment of this Act; and 

14 (B) shall not include any person that is a 

15 debtor or any direct or indirect majority-owned 

16 subsidiary of a debtor. 

17 (2) CLASS ACTION TRUST.—The term ‘‘class ac18 tion trust’’ means a trust or similar entity estab19 lished to hold assets for the payment of asbestos 

20 claims asserted against a debtor or participating de21 fendant, under a settlement that— 

22 (A) is a settlement of class action claims 

23 under rule 23 of the Federal Rules of Civil Pro24 cedure; and 
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1 (B) has been approved by a final judgment 

2 of a United States district court before the date 

3 of enactment of this Act. 

4 (3) DEBTOR.—The term ‘‘debtor’’— 

5 (A) means— 

6 (i) a person that is subject to a case 

7 pending under a chapter of title 11, United 

8 States Code, on the date of enactment of 

9 this Act or at any time during the 1-year 

10 period immediately preceding that date, ir11 respective of whether the debtor’s case 

12 under that title has been dismissed; and 

13 (ii) all of the direct or indirect major14 ity-owned subsidiaries of a person de15 scribed under clause (i), regardless of 

16 whether any such majority-owned sub17 sidiary has a case pending under title 11, 

18 United States Code; and 

19 (B) shall not include an entity— 

20 (i) subject to chapter 7 of title 11, 

21 United States Code, if a final decree clos22 ing the estate shall have been entered be23 fore the date of enactment of this Act; or 

24 (ii) subject to chapter 11 of title 11, 

25 United States Code, if a plan of reorga-
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1 nization for such entity shall have been 

2 confirmed by a duly entered order or judg3 ment of a court that is no longer subject 

4 to any appeal or judicial review, and the 

5 substantial consummation, as such term is 

6 defined in section 1101(2) of title 11, 

7 United States Code, of such plan of reor8 ganization has occurred. 

9 (4) INDEMNIFIABLE COST.—The term 

10 ‘‘indemnifiable cost’’ means a cost, expense, debt, 

11 judgment, or settlement incurred with respect to an 

12 asbestos claim that, at any time before December 

13 31, 2002, was or could have been subject to indem14 nification, contribution, surety, or guaranty. 

15 (5) INDEMNITEE.—The term ‘‘indemnitee’’ 

16 means a person against whom any asbestos claim 

17 has been asserted before December 31, 2002, who 

18 has received from any other person, or on whose be19 half a sum has been paid by such other person to 

20 any third person, in settlement, judgment, defense, 

21 or indemnity in connection with an alleged duty with 

22 respect to the defense or indemnification of such 

23 person concerning that asbestos claim, other than 

24 under a policy of insurance or reinsurance. 
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1 (6) INDEMNITOR.—The term ‘‘indemnitor’’ 

2 means a person who has paid under a written agree3 ment at any time before December 31, 2002, a sum 

4 in settlement, judgment, defense, or indemnity to or 

5 on behalf of any person defending against an asbes6 tos claim, in connection with an alleged duty with 

7 respect to the defense or indemnification of such 

8 person concerning that asbestos claim, except that 

9 payments by an insurer or reinsurer under a con10 tract of insurance or reinsurance shall not make the 

11 insurer or reinsurer an indemnitor for purposes of 

12 this subtitle. 

13 (7) PRIOR ASBESTOS EXPENDITURES.—The 

14 term ‘‘prior asbestos expenditures’’— 

15 (A) means the gross total amount paid by 

16 or on behalf of a person at any time before De17 cember 31, 2002, in settlement, judgment, de18 fense, or indemnity costs related to all asbestos 

19 claims against that person; 

20 (B) includes payments made by insurance 

21 carriers to or for the benefit of such person or 

22 on such person’s behalf with respect to such as23 bestos claims, except as provided in section 

24 204(g); 
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1 (C) shall not include any payment made by 

2 a person in connection with or as a result of 

3 changes in insurance reserves required by con4 tract or any activity or dispute related to insur5 ance coverage matters for asbestos-related li6 abilities; and 

7 (D) shall not include any payment made by 

8 or on behalf of persons who are or were com9 mon carriers by railroad for asbestos claims 

10 brought under the Act of April 22, 1908 (45 

11 U.S.C. 51 et seq.), commonly known as the 

12 Employers’ Liability Act, as a result of oper13 ations as a common carrier by railroad, includ14 ing settlement, judgment, defense, or indemnity 

15 costs associated with these claims. 

16 (8) TRUST.—The term ‘‘trust’’ means any 

17 trust, as described in sections 524(g)(2)(B)(i) or 

18 524(h) of title 11, United States Code, or estab19 lished in conjunction with an order issued under sec20 tion 105 of title 11, United States Code, established 

21 or formed under the terms of a chapter 11 plan of 

22 reorganization, which in whole or in part provides 

23 compensation for asbestos claims. 

24 (9) ULTIMATE PARENT.—The term ‘‘ultimate 

25 parent’’ means a person— 
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1 (A) that owned, as of December 31, 2002, 

2 the entire beneficial interest, directly or indi3 rectly, of at least 1 other person; and 

4 (B) whose entire beneficial interest was not 

5 owned, on December 31, 2002, directly or indi6 rectly, by any other single person (other than a 

7 natural person). 

8 SEC. 202. AUTHORITY AND TIERS. 

9 (a) LIABILITY FOR PAYMENTS TO THE FUND.— 

10 (1) IN GENERAL.—Defendant participants shall 

11 be liable for payments to the Fund in accordance 

12 with this section based on tiers and subtiers as13 signed to defendant participants. 

14 (2) AGGREGATE PAYMENT OBLIGATIONS

15 LEVEL.—The total payments required of all defend16 ant participants over the life of the Fund shall not 

17 exceed a sum equal to $90,000,000,000 less any 

18 bankruptcy trust credits under section 222(e)(d). 

19 The Administrator shall have the authority to allo20 cate the payments required of the defendant partici21 pants among the tiers as provided in this title. 

22 (3) ABILITY TO ENTER REORGANIZATION.— 

23 Notwithstanding any other provision of this Act, all 

24 debtors that, together with all of their direct or indi25 rect majority-owned subsidiaries, have prior asbestos 
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1 expenditures less than $1,000,000 may proceed with 

2 the filing, solicitation, and confirmation of a plan of 

3 reorganization that does not comply with the re4 quirements of this Act, including a trust and chan5 neling injunction under section 524(g) of title 11, 

6 United States Code. Any asbestos claim made in 

7 conjunction with a plan of reorganization allowable 

8 under the preceding sentence shall be subject to sec9 tion 403(d) of this Act. 

10 (b) TIER I.—Tier I shall include all debtors that, to11 gether with all of their direct or indirect majority-owned 

12 subsidiaries, have prior asbestos expenditures greater than 

13 $1,000,000. 

14 (c) TREATMENT OF TIER I BUSINESS ENTITIES IN

15 BANKRUPTCY.— 

16 (1) DEFINITION.— 

17 (A) IN GENERAL.—In this subsection, the 

18 term ‘‘bankrupt business entity’’ means a per19 son that is not a natural person that— 

20 (i) filed a petition for relief under 

21 chapter 11, of title 11, United States 

22 Code, before January 1, 2003; 

23 (ii) has not substantially con24 summated, as such term is defined under 

25 section 1101(2) of title 11, United States 
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1 Code, a plan of reorganization as of the 

2 date of enactment of this Act; and 

3 (iii) the bankruptcy court presiding 

4 over the business entity’s case determines, 

5 after notice and a hearing upon motion 

6 filed by the entity within 30 days after the 

7 date of enactment of this Act, that asbes8 tos liability was not the sole or precipi9 tating cause of the entity’s chapter 11 fil10 ing. 

11 (B) MOTION AND RELATED MATTERS.—A 

12 motion under subparagraph (A)(iii) shall be 

13 supported by— 

14 (i) an affidavit or declaration of the 

15 chief executive officer, chief financial offi16 cer, or chief legal officer of the business 

17 entity; and 

18 (ii) copies of the entity’s public state19 ments and securities filings made in con20 nection with the entity’s filing for chapter 

21 11 protection. 

22 Notice of such motion shall be as directed by 

23 the bankruptcy court, and the hearing shall be 

24 limited to consideration of the question of 

25 whether or not asbestos liability was the sole or 
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1 precipitating cause of the entity’s chapter 11 

2 filing. The bankruptcy court shall hold a hear3 ing and make its determination with respect to 

4 the motion within 60 days after the date the 

5 motion is filed. In making its determination, 

6 the bankruptcy court shall take into account 

7 the affidavits, public statements, and securities 

8 filings, and other information, if any, submitted 

9 by the entity and all other facts and cir10 cumstances presented by an objecting party. 

11 Any review of this determination shall be an ex12 pedited appeal and limited to whether the deci13 sion was against the weight of the evidence. 

14 Any appeal of a determination shall be an expe15 dited review to the United States Circuit Court 

16 of Appeals for the circuit in which the bank17 ruptcy is filed. 

18 (2) PROCEEDING WITH REORGANIZATION

19 PLAN.—A bankrupt business entity may proceed 

20 with the filing, solicitation, confirmation, and con21 summation of a plan of reorganization that does not 

22 comply with the requirements of this Act, including 

23 a trust and channeling injunction described in sec24 tion 524(g) of title 11, United States Code, notwith25 standing any other provisions of this Act, if the 
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1 bankruptcy court makes a favorable determination 

2 under paragraph (1)(B), unless the bankruptcy 

3 court’s determination is overruled on appeal and all 

4 appeals are final. Such a bankrupt business entity 

5 may continue to so proceed, if— 

6 (A) on request of a party in interest or on 

7 a motion of the court, and after a notice and 

8 a hearing, the bankruptcy court presiding over 

9 the chapter 11 case of the bankrupt business 

10 entity determines that— 

11 (i) confirmation is necessary to permit 

12 the reorganization of that entity and as13 sure that all creditors and that entity are 

14 treated fairly and equitably; and 

15 (ii) confirmation is clearly favored by 

16 the balance of the equities; and 

17 such confirmation is required to avoid the liq18 uidation or the need for further financial reorga19 nization of that entity; and 

20 (B) an order confirming the plan of reor21 ganization is entered by the bankruptcy court 

22 within 9 months after the date of enactment of 

23 this Act or such longer period of time approved 

24 by the bankruptcy court for cause shown. 
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1 (3) APPLICABILITY.—If the bankruptcy court 

2 does not make the determination required under 

3 paragraph (2), or if an order confirming the plan is 

4 not entered within 9 months after the date of enact5 ment of this Act or such longer period of time ap6 proved by the bankruptcy court for cause shown, the 

7 provisions of this Act shall apply to the bankrupt 

8 business entity notwithstanding the certification. 

9 Any timely appeal under title 11, United States 

10 Code, from a confirmation order entered during the 

11 applicable time period shall automatically extend the 

12 time during which this Act is inapplicable to the 

13 bankrupt business entity, until the appeal is fully 

14 and finally resolved. 

15 (4) OFFSETS.— 

16 (A) PAYMENTS BY INSURERS.—To the ex17 tent that a bankrupt business entity or debtor 

18 successfully confirms a plan of reorganization, 

19 including a trust, and channeling injunction 

20 that involves payments by insurers who are oth21 erwise subject to this Act as described under 

22 section 524(g) of title 11, United States Code, 

23 an insurer who makes payments to the trust 

24 shall obtain a dollar-for-dollar reduction in the 
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1 amount otherwise payable by that insurer under 

2 this Act to the Fund. 

3 (B) CONTRIBUTIONS TO FUND.—Any cash 

4 payments by a bankrupt business entity, if any, 

5 to a trust described under section 524(g) of 

6 title 11, United States Code, may be counted as 

7 a contribution to the Fund. 

8 (d) TIERS II THROUGH VI.—Except as provided in 

9 section 204 and subsection (b) of this section, persons or 

10 affiliated groups are included in Tier II, III, IV, V, or 

11 VI, according to the prior asbestos expenditures paid by 

12 such persons or affiliated groups as follows: 

13 (1) Tier II: $75,000,000 or greater. 

14 (2) Tier III: $50,000,000 or greater, but less 

15 than $75,000,000. 

16 (3) Tier IV: $10,000,000 or greater, but less 

17 than $50,000,000. 

18 (4) Tier V: $5,000,000 or greater, but less than 

19 $10,000,000. 

20 (5) Tier VI: $1,000,000 or greater, but less 

21 than $5,000,000. 

22 (e) TIER PLACEMENT AND COSTS.— 

23 (1) PERMANENT TIER PLACEMENT.—After a 

24 defendant participant or affiliated group is assigned 

25 to a tier and subtier under section 204(i)(6), the 
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1 participant or affiliated group shall remain in that 

2 tier and subtier throughout the life of the Fund, re3 gardless of subsequent events, including— 

4 (A) the filing of a petition under a chapter 

5 of title 11, United States Code; 

6 (B) a discharge of debt in bankruptcy; 

7 (C) the confirmation of a plan of reorga8 nization; or 

9 (D) the sale or transfer of assets to any 

10 other person or affiliated group, unless the Ad11 ministrator finds that the information sub12 mitted by the participant or affiliated group to 

13 support its inclusion in that tier was inaccurate. 

14 (2) COSTS.—Payments to the Fund by all per15 sons that are the subject of a case under a chapter 

16 of title 11, United States Code, after the date of en17 actment of this Act— 

18 (A) shall constitute costs and expenses of 

19 administration of the case under section 503 of 

20 title 11, United States Code, and shall be pay21 able in accordance with the payment provisions 

22 under this subtitle notwithstanding the pend23 ency of the case under that title 11; 
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1 (B) shall not be stayed or affected as to 

2 enforcement or collection by any stay or injunc3 tion power of any court; and 

4 (C) shall not be impaired or discharged in 

5 any current or future case under title 11, 

6 United States Code. 

7 (f) SUPERSEDING PROVISIONS.— 

8 (1) IN GENERAL.—All of the following shall be 

9 superseded in their entireties by this Act: 

10 (A) The treatment of any asbestos claim in 

11 any plan of reorganization with respect to any 

12 debtor included in Tier I. 

13 (B) Any asbestos claim against any debtor 

14 included in Tier I. 

15 (C) Any agreement, understanding, or un16 dertaking by any such debtor or any third party 

17 with respect to the treatment of any asbestos 

18 claim filed in a debtor’s bankruptcy case or 

19 with respect to a debtor before the date of en20 actment of this Act, whenever such debtor’s 

21 case is either still pending, if such case is pend22 ing under a chapter other than chapter 11 of 

23 title 11, United States Code, or subject to con24 firmation or substantial consummation of a 
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1 plan of reorganization under chapter 11 of title 

2 11, United States Code. 

3 (2) PRIOR AGREEMENTS OF NO EFFECT.—Not4 withstanding section 403(c)(3), any plan of reorga5 nization, agreement, understanding, or undertaking 

6 by any debtor (including any pre-petition agreement, 

7 understanding, or undertaking that requires future 

8 performance) or any third party under paragraph 

9 (1), and any agreement, understanding, or under10 taking entered into in anticipation, contemplation, or 

11 furtherance of a plan of reorganization, to the extent 

12 it relates to any asbestos claim, shall be of no force 

13 or effect, and no person shall have any right or 

14 claim with respect to any such agreement, under15 standing, or undertaking. 

16 SEC. 203. SUBTIERS. 

17 (a) IN GENERAL.— 

18 (1) SUBTIER LIABILITY.—Except as otherwise 

19 provided under subsections (b), (d), and (l) of sec20 tion 204, persons or affiliated groups shall be in21 cluded within Tiers I through VII and shall pay 

22 amounts to the Fund in accordance with this sec23 tion. 

24 (2) REVENUES.— 
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1 (A) IN GENERAL.—For purposes of this 

2 section, revenues shall be determined in accord3 ance with generally accepted accounting prin4 ciples, consistently applied, using the amount 

5 reported as revenues in the annual report filed 

6 with the Securities and Exchange Commission 

7 in accordance with the Securities Exchange Act 

8 of 1934 (15 U.S.C. 78a et seq.) for the most 

9 recent fiscal year ending on or before December 

10 31, 2002. If the defendant participant or affili11 ated group does not file reports with the Securi12 ties and Exchange Commission, revenues shall 

13 be the amount that the defendant participant or 

14 affiliated group would have reported as reve15 nues under the rules of the Securities and Ex16 change Commission in the event that it had 

17 been required to file. 

18 (B) INSURANCE PREMIUMS.—Any portion 

19 of revenues of a defendant participant that is 

20 derived from insurance premiums shall not be 

21 used to calculate the payment obligation of that 

22 defendant participant under this subtitle. 

23 (C) DEBTORS.—Each debtor’s revenues 

24 shall include the revenues of the debtor and all 

25 of the direct or indirect majority-owned subsidi-
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1 aries of that debtor, except that the pro forma 

2 revenues of a person that is included in Subtier 

3 2 of Tier I shall not be included in calculating 

4 the revenues of any debtor that is a direct or 

5 indirect majority owner of such Subtier 2 per6 son. If a debtor or affiliated group includes a 

7 person in respect of whose liabilities for asbes8 tos claims a class action trust has been estab9 lished, there shall be excluded from the 2002 

10 revenues of such debtor or affiliated group— 

11 (i) all revenues of the person in re12 spect of whose liabilities for asbestos 

13 claims the class action trust was estab14 lished; and 

15 (ii) all revenues of the debtor and af16 filiated group attributable to the historical 

17 business operations or assets of such per18 son, regardless of whether such business 

19 operations or assets were owned or con20 ducted during the year 2002 by such per21 son or by any other person included within 

22 such debtor and affiliated group. 

23 (b) TIER I SUBTIERS.— 
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1 (1) IN GENERAL.—Each debtor in Tier I shall 

2 be included in subtiers and shall pay amounts to the 

3 Fund as provided under this section. 

4 (2) SUBTIER 1.— 

5 (A) IN GENERAL.—All persons that are 

6 debtors with prior asbestos expenditures of 

7 $1,000,000 or greater, shall be included in 

8 Subtier 1. 

9 (B) PAYMENT.— 

10 (i) IN GENERAL.—Each debtor in11 cluded in Subtier 1 shall pay on an annual 

12 basis 1.67024 percent of the debtor’s 2002 

13 revenues. 

14 (ii) EXCEPTION TO PAYMENT PERCENT15 AGE.—Notwithstanding clause (i), a debtor 

16 in Subtier 1 shall pay, on an annual basis, 

17 $500,000 if— 

18 (I) such debtor, including its di19 rect or indirect majority-owned sub20 sidiaries, has less than $10,000,000 in 

21 prior asbestos expenditures; 

22 (II) at least 95 percent of such 

23 debtors revenues derive from the provi24 sion of engineering and construction 

25 services; and 
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1 (III) such debtor, including its di2 rect or indirect majority-owned sub3 sidiaries, never manufactured, sold, or 

4 distributed asbestos-containing prod5 ucts in the stream of commerce. 

6 (C) OTHER ASSETS.—The Administrator, 

7 at the sole discretion of the Administrator, may 

8 allow a Subtier 1 debtor to satisfy its funding 

9 obligation under this paragraph with assets 

10 other than cash if the Administrator determines 

11 that requiring an all-cash payment of the debt12 or’s funding obligation would render the debt13 or’s reorganization infeasible. 

14 (D) LIABILITY.— 

15 (i) IN GENERAL.—If a person who is 

16 subject to a case pending under a chapter 

17 of title 11, United States Code, as defined 

18 in section 201(3)(A)(i), does not pay when 

19 due any payment obligation for the debtor, 

20 the Administrator shall have the right to 

21 seek payment of all or any portion of the 

22 entire amount due (as well as any other 

23 amount for which the debtor may be liable 

24 under sections 223 and 224) from any of 
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1 the direct or indirect majority-owned sub2 sidiaries under section 201(3)(A)(ii). 

3 (ii) CAUSE OF ACTION.—Notwith4 standing section 221(e), this Act shall not 

5 preclude actions among persons within a 

6 debtor under section 201(3)(A) (i) and (ii) 

7 with respect to the payment obligations 

8 under this Act. 

9 (iii) RIGHT OF CONTRIBUTION.— 

10 (I) IN GENERAL.—Notwith11 standing any other provision of this 

12 Act, if a direct or indirect majority13 owned foreign subsidiary of a debtor 

14 participant (with such relationship to 

15 the debtor participant as determined 

16 on the date of enactment of this Act) 

17 is or becomes subject to any foreign 

18 insolvency proceedings, and such for19 eign direct or indirect-majority owned 

20 subsidiary is liquidated in connection 

21 with such foreign insolvency pro22 ceedings (or if the debtor participant’s 

23 interest in such foreign subsidiary is 

24 otherwise canceled or terminated in 

25 connection with such foreign insol-
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1 vency proceedings), the debtor partici2 pant shall have a claim against such 

3 foreign subsidiary or the estate of 

4 such foreign subsidiary in an amount 

5 equal to the greater of— 

6 (aa) the estimated amount 

7 of all current and future asbestos 

8 liabilities against such foreign 

9 subsidiary; or 

10 (bb) the foreign subsidiary’s 

11 allocable share of the debtor par12 ticipant’s funding obligations to 

13 the Fund as determined by such 

14 foreign subsidiary’s allocable 

15 share of the debtor participant’s 

16 2002 gross revenue. 

17 (II) DETERMINATION OF CLAIM

18 AMOUNT.—The claim amount under 

19 subclause (I) (aa) or (bb) shall be de20 termined by a court of competent ju21 risdiction in the United States. 

22 (III) EFFECT ON PAYMENT OBLI23 GATION.—The right to, or recovery 

24 under, any such claim shall not re25 duce, limit, delay, or otherwise affect 
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1 the debtor participant’s payment obli2 gations under this Act. 

3 (iv) MAXIMUM ANNUAL PAYMENT OB4 LIGATION.—Subject to any payments 

5 under sections 204(l) and 222(d)(c), and 

6 paragraphs (3), (4), and (5) of this sub7 section, the annual payment obligation by 

8 a debtor under subparagraph (B) of this 

9 paragraph shall not exceed $80,000,000. 

10 (3) SUBTIER 2.— 

11 (A) IN GENERAL.—Notwithstanding para12 graph (2), all persons that are debtors that 

13 have no material continuing business operations 

14 , other than class action trusts under paragraph 

15 (6), but hold cash or other assets that have 

16 been allocated or earmarked for the settlement 

17 of asbestos claims shall be included in Subtier 

18 2. 

19 (B) ASSIGNMENT OF ASSETS.—Not later 

20 than 90 days after the date of enactment of 

21 this Act, each person included in Subtier 2 shall 

22 assign all of its unencumbered assets to the 

23 Fund. 

24 (4) SUBTIER 3.— 
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1 (A) IN GENERAL.—Notwithstanding para2 graph (2), all persons that are debtors other 

3 than those included in Subtier 2, which have no 

4 material continuing business operations and no 

5 cash or other assets allocated or earmarked for 

6 the settlement of any asbestos claim, shall be 

7 included in Subtier 3. 

8 (B) ASSIGNMENT OF UNENCUMBERED AS9 SETS.—Not later than 90 days after the date of 

10 enactment of this Act, each person included in 

11 Subtier 3 shall contribute an amount equal to 

12 50 percent of its total unencumbered assets. 

13 (C) CALCULATION OF UNENCUMBERED AS14 SETS.—Unencumbered assets shall be cal15 culated as the Subtier 3 person’s total assets, 

16 excluding insurance-related assets, less— 

17 (i) all allowable administrative ex18 penses; 

19 (ii) allowable priority claims under 

20 section 507 of title 11, United States 

21 Code; and 

22 (iii) allowable secured claims. 

23 (5) CALCULATION OF UNENCUMBERED ASSETS.— 

24 Unencumbered assets shall be calculated as the 

25 Subtier 3 person’s total assets, excluding insurance- 
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1 related assets, jointly held, in trust or otherwise, with 

2 a defendant participant, less— 

3 (A) all allowable administrative expenses; 

4 (B) allowable priority claims under section 

5 507 of title 11, United States Code; and 

6 (C) allowable secured claims. 

7 (5)(6) CLASS ACTION TRUST.—The assets of 

8 any class action trust that has been established in 

9 respect of the liabilities for asbestos claims of any 

10 person included within a debtor and affiliated group 

11 that has been included in Tier I (exclusive of any as12 sets needed to pay previously incurred expenses and 

13 asbestos claims within the meaning of section 

14 403(d)(1), before the date of enactment of this Act) 

15 shall be transferred to the Fund not later than 6 

16 months 60 days after the date of enactment of this 

17 Act. 

18 (c) TIER II SUBTIERS.— 

19 (1) IN GENERAL.—Each person or affiliated 

20 group in Tier II shall be included in 1 of the 5 

21 subtiers of Tier II, based on the person’s or affili22 ated group’s revenues. Such subtiers shall each con23 tain as close to an equal number of total persons 

24 and affiliated groups as possible, with— 
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1 (A) those persons or affiliated groups with 

2 the highest revenues included in Subtier 1; 

3 (B) those persons or affiliated groups with 

4 the next highest revenues included in Subtier 2; 

5 (C) those persons or affiliated groups with 

6 the lowest revenues included in Subtier 5; 

7 (D) those persons or affiliated groups with 

8 the next lowest revenues included in Subtier 4; 

9 and 

10 (E) those persons or affiliated groups re11 maining included in Subtier 3. 

12 (2) PAYMENTS.—Each person or affiliated 

13 group within each subtier shall pay, on an annual 

14 basis, the following: 

15 (A) Subtier 1: $27,500,000. 

16 (B) Subtier 2: $24,750,000. 

17 (C) Subtier 3: $22,000,000. 

18 (D) Subtier 4: $19,250,000. 

19 (E) Subtier 5: $16,500,000. 

20 (d) TIER III SUBTIERS.— 

21 (1) IN GENERAL.—Each person or affiliated 

22 group in Tier III shall be included in 1 of the 5 

23 subtiers of Tier III, based on the person’s or affili24 ated group’s revenues. Such subtiers shall each con-
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1 tain as close to an equal number of total persons 

2 and affiliated groups as possible, with— 

3 (A) those persons or affiliated groups with 

4 the highest revenues included in Subtier 1; 

5 (B) those persons or affiliated groups with 

6 the next highest revenues included in Subtier 2; 

7 (C) those persons or affiliated groups with 

8 the lowest revenues included in Subtier 5; 

9 (D) those persons or affiliated groups with 

10 the next lowest revenues included in Subtier 4; 

11 and 

12 (E) those persons or affiliated groups re13 maining included in Subtier 3. 

14 (2) PAYMENTS.—Each person or affiliated 

15 group within each subtier shall pay, on an annual 

16 basis, the following: 

17 (A) Subtier 1: $16,500,000. 

18 (B) Subtier 2: $13,750,000. 

19 (C) Subtier 3: $11,000,000. 

20 (D) Subtier 4: $8,250,000. 

21 (E) Subtier 5: $5,500,000. 

22 (e) TIER IV SUBTIERS.— 

23 (1) IN GENERAL.—Each person or affiliated 

24 group in Tier IV shall be included in 1 of the 4 

25 subtiers of Tier IV, based on the person’s or affili-
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1 ated group’s revenues. Such subtiers shall each con2 tain as close to an equal number of total persons 

3 and affiliated groups as possible, with those persons 

4 or affiliated groups with the highest revenues in 

5 Subtier 1, those with the lowest revenues in Subtier 

6 4. Those persons or affiliated groups with the high7 est revenues among those remaining will be included 

8 in Subtier 2 and the rest in Subtier 3. 

9 (2) PAYMENT.—Each person or affiliated group 

10 within each subtier shall pay, on an annual basis, 

11 the following: 

12 (A) Subtier 1: $3,850,000. 

13 (B) Subtier 2: $2,475,000. 

14 (C) Subtier 3: $1,650,000. 

15 (D) Subtier 4: $550,000. 

16 (f) TIER V SUBTIERS.— 

17 (1) IN GENERAL.—Each person or affiliated 

18 group in Tier V shall be included in 1 of the 3 

19 subtiers of Tier V, based on the person’s or affili20 ated group’s revenues. Such subtiers shall each con21 tain as close to an equal number of total persons 

22 and affiliated groups as possible, with those persons 

23 or affiliated groups with the highest revenues in 

24 Subtier 1, those with the lowest revenues in Subtier 

25 3, and those remaining in Subtier 2. 
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1 (2) PAYMENT.—Each person or affiliated group 

2 within each subtier shall pay, on an annual basis, 

3 the following: 

4 (A) Subtier 1: $1,000,000. 

5 (B) Subtier 2: $500,000. 

6 (C) Subtier 3: $200,000. 

7 (g) TIER VI SUBTIERS.— 

8 (1) IN GENERAL.—Each person or affiliated 

9 group in Tier VI shall be included in 1 of the 3 

10 subtiers of Tier VI, based on the person’s or affili11 ated group’s revenues. Such subtiers shall each con12 tain as close to an equal number of total persons 

13 and affiliated groups as possible, with those persons 

14 or affiliated groups with the highest revenues in 

15 Subtier 1, those with the lowest revenues in Subtier 

16 3, and those remaining in Subtier 2. 

17 (2) PAYMENT.—Each person or affiliated group 

18 within each subtier shall pay, on an annual basis, 

19 the following: 

20 (A) Subtier 1: $500,000. 

21 (B) Subtier 2: $250,000. 

22 (C) Subtier 3: $100,000. 

23 (3) OTHER PAYMENT FOR CERTAIN PERSONS AND

24 AFFILIATED GROUPS.— 
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1 (A) IN GENERAL.—Notwithstanding any 

2 other provision of this subsection, and if an ad3 justment authorized by this subsection does not 

4 impair the overall solvency of the Fund, any per5 son or affiliated group within Tier VI whose re6 quired subtier payment in any given year would 

7 exceed such person’s or group’s average annual 

8 expenditure on settlements, and judgments of as9 bestos disease-related claims over the 8 years be10 fore the date of enactment of this Act shall make 

11 the payment required of the immediately lower 

12 subtier or, if the person’s or group’s average an13 nual expenditures on settlements and judgments 

14 over the 8 years before the date of enactment of 

15 this Act is less than $100,000, shall not be re16 quired to make a payment under this Act. 

17 (B) NO FURTHER ADJUSTMENT.—Any per18 son or affiliated group that receives an adjust19 ment under this paragraph shall not be eligible 

20 to receive any further adjustment under section 

21 204(d). 

22 (h) TIER VII.— 

23 (1) IN GENERAL.—Notwithstanding prior as24 bestos expenditures that might qualify a person or 

25 affiliated group to be included in Tiers II, III, IV, 
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1 V, or VI, a person or affiliated group shall also be 

2 included in Tier VII, if the person or affiliated 

3 group— 

4 (A) is or has at any time been subject to 

5 asbestos claims brought under the Act of April 

6 22, 1908 (45 U.S.C. 51 et seq.), commonly 

7 known as the Employers’ Liability Act, as a re8 sult of operations as a common carrier by rail9 road; and 

10 (B) has paid (including any payments 

11 made by others on behalf of such person or af12 filiated group) not less than $5,000,000 in set13 tlement, judgment, defense, or indemnity costs 

14 relating to such claims. 

15 (2) ADDITIONAL AMOUNT.—The payment re16 quirement for persons or affiliated groups included 

17 in Tier VII shall be in addition to any payment re18 quirement applicable to such person or affiliated 

19 group under Tiers II through VI. 

20 (3) SUBTIER 1.—Each person or affiliated 

21 group in Tier VII with revenues of $6,000,000,000 

22 or more is included in Subtier 1 and shall make an23 nual payments of $11,000,000 to the Fund. 

24 (4) SUBTIER 2.—Each person or affiliated 

25 group in Tier VII with revenues of less than 
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1 $6,000,000,000, but not less than $4,000,000,000 is 

2 included in Subtier 2 and shall make annual pay3 ments of $5,500,000 to the Fund. 

4 (5) SUBTIER 3.—Each person or affiliated 

5 group in Tier VII with revenues of less than 

6 $4,000,000,000, but not less than $500,000,000 is 

7 included in Subtier 3 and shall make annual pay8 ments of $550,000 to the Fund. 

9 (6) JOINT VENTURE REVENUES AND LIABIL10 ITY.— 

11 (A) REVENUES.—For purposes of this sub12 section, the revenues of a joint venture shall be 

13 included on a pro rata basis reflecting relative 

14 joint ownership to calculate the revenues of the 

15 parents of that joint venture. The joint venture 

16 shall not be responsible for a contribution 

17 amount under this subsection. 

18 (B) LIABILITY.—For purposes of this sub19 section, the liability under the Act of April 22, 

20 1908 (45 U.S.C. 51 et seq.), commonly known 

21 as the Employers’ Liability Act, shall be attrib22 uted to the parent owners of the joint venture 

23 on a pro rata basis, reflecting their relative 

24 share of ownership. The joint venture shall not 
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1 be responsible for a payment amount under this 

2 provision. 

3 SEC. 204. ASSESSMENT ADMINISTRATION. 

4 (a) IN GENERAL.—Each defendant participant or af5 filiated group shall pay to the Fund in the amounts pro6 vided under this subtitle as appropriate for its tier and 

7 subtier each year until the earlier to occur of the following: 

8 (1) The participant or affiliated group has sat9 isfied its obligations under this subtitle during the 

10 30 annual payment cycles of the operation of the 

11 Fund. 

12 (2) The amount received by the Fund from de13 fendant participants, excluding any amounts rebated 

14 to defendant participants under subsection (d) sub15 sections (d) and (m), equals the maximum aggregate 

16 payment obligation of section 202(a)(2). 

17 (b) SMALL BUSINESS EXEMPTION.—Notwith18 standing any other provision of this subtitle, a person or 

19 affiliated group that is a small business concern (as de20 fined under section 3 of the Small Business Act (15 

21 U.S.C. 632)), on December 31, 2002, is exempt from any 

22 payment requirement under this subtitle and shall not be 

23 included in the subtier allocations under section 203. 

24 (c) PROCEDURES.—The Administrator shall pre25 scribe procedures on how amounts payable under this sub-
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1 title are to be paid, including, to the extent the Adminis2 trator determines appropriate, procedures relating to pay3 ment in installments. 

4 (d) ADJUSTMENTS.— 

5 (1) IN GENERAL.—Under expedited procedures 

6 established by the Administrator, a defendant partic7 ipant may seek adjustment of the amount of its pay8 ment obligation based on severe financial hardship 

9 or demonstrated inequity. The Administrator may 

10 determine whether to grant an adjustment and the 

11 size of any such adjustment, in accordance with this 

12 subsection. A defendant participant has a right to 

13 obtain a rehearing of the Administrator’s determina14 tion under this subsection under the procedures pre15 scribed in subsection (i)(10). The Administrator may 

16 adjust a defendant participant’s payment obligations 

17 under this subsection, either by forgiving the rel18 evant portion of the otherwise applicable payment 

19 obligation or by providing relevant rebates from the 

20 defendant hardship and inequity adjustment account 

21 created under subsection (j) after payment of the 

22 otherwise applicable payment obligation, at the dis23 cretion of the Administrator. 

24 (2) FINANCIAL HARDSHIP ADJUSTMENTS.— 
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1 (A) IN GENERAL.—A defendant partici2 pant may apply for an adjustment based on fi3 nancial hardship at any time during the period 

4 in which a payment obligation to the Fund re5 mains outstanding and may qualify for such ad6 justment by demonstrating that the amount of 

7 its payment obligation under the statutory allo8 cation would constitute a severe financial hard9 ship. 

10 (B) TERM.—Subject to the annual avail11 ability of funds in the defendant hardship and 

12 inequity adjustment account established under 

13 subsection (j), a financial hardship adjustment 

14 under this subsection shall have a term of 3 

15 years. 

16 (C) RENEWAL.—After an initial hardship 

17 adjustment is granted under this paragraph, a 

18 defendant participant may renew its hardship 

19 adjustment by demonstrating that it remains 

20 justified. 

21 (D) REINSTATEMENT.—Following the ex22 piration of the hardship adjustment period pro23 vided for under this section and during the 

24 funding period prescribed under subsection (a), 

25 the Administrator shall annually determine 
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1 whether there has been a material change in 

2 the financial condition of the defendant partici3 pant such that the Administrator may, con4 sistent with the policies and legislative intent 

5 underlying this Act, reinstate under terms and 

6 conditions established by the Administrator any 

7 part or all of the defendant participant’s pay8 ment obligation under the statutory allocation 

9 that was not paid during the hardship adjust10 ment term. 

11 (3) INEQUITY ADJUSTMENTS.— 

12 (A) IN GENERAL.—A defendant partici13 pant— 

14 (i) may qualify for an adjustment 

15 based on inequity by demonstrating that 

16 the amount of its payment obligation 

17 under the statutory allocation is exception18 ally inequitable— 

19 (I) when measured against the 

20 amount of the likely cost to the de21 fendant participant net of insurance 

22 of its future liability in the tort sys23 tem in the absence of the Fund; 
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1 (II) when compared to the me2 dian payment rate for all defendant 

3 participants in the same tier; or 

4 (III) when measured against the 

5 percentage of the prior asbestos ex6 penditures of the defendant that were 

7 incurred with respect to claims that 

8 neither resulted in an adverse judg9 ment against the defendant, nor were 

10 the subject of a settlement that re11 quired a payment to a plaintiff by or 

12 on behalf of that defendant; 

13 (ii) shall qualify for a two-tier main 

14 tier and a two-tier subtier adjustment re15 ducing the defendant participant’s pay16 ment obligation based on inequity by dem17 onstrating that not less than 95 percent of 

18 such person’s prior asbestos expenditures 

19 arose from claims related to the manufac20 ture and sale of railroad locomotives and 

21 related products, so long as such person’s 

22 manufacture and sale of railroad loco23 motives and related products is temporally 

24 and causally remote, and for purposes of 

25 this clause, a person’s manufacture and 
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1 sale of railroad locomotives and related 

2 products shall be deemed to be temporally 

3 and causally remote if the asbestos claims 

4 historically and generally filed against such 

5 person relate to the manufacture and sale 

6 of railroad locomotives and related prod7 ucts by an entity dissolved more than 25 

8 years before the date of enactment of this 

9 Act; and 

10 (iii) shall be granted a two-tier adjust11 ment reducing the defendant participant’s 

12 payment obligation based on inequity by 

13 demonstrating that not less than 95 per14 cent of such participant’s prior asbestos 

15 expenditures arose from asbestos claims 

16 based on successor liability arising from a 

17 merger to which the participant or its 

18 predecessor was a party that occurred at 

19 least 30 years before the date of enactment 

20 of this Act, and that such prior asbestos 

21 expenditures exceed the inflation-adjusted 

22 value of the assets of the company from 

23 which such liability was derived in such 

24 merger, and upon such demonstration the 

25 Administrator shall grant such adjustment 
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1 for the life of the Fund and amounts paid 

2 by such defendant participant prior to such 

3 adjustment in excess of its adjusted pay4 ment obligation under this clause shall be 

5 credited against next succeeding required 

6 payment obligations. 

7 (B) PAYMENT RATE.—For purposes of 

8 subparagraph (A), the payment rate of a de9 fendant participant is the payment amount of 

10 the defendant participant as a percentage of 

11 such defendant participant’s gross revenues for 

12 the year ending December 31, 2002. 

13 (C) TERM.—Subject to the annual avail14 ability of funds in the defendant hardship and 

15 inequity adjustment account established under 

16 subsection (j), an inequity adjustment under 

17 this subsection shall have a term of 3 years. 

18 (D) RENEWAL.—A defendant participant 

19 may renew an inequity adjustment every 3 

20 years by demonstrating that the adjustment re21 mains justified. 

22 (E) REINSTATEMENT.— 

23 (i) IN GENERAL.—Following the ter24 mination of an inequity adjustment under 

25 subparagraph (A), and during the funding 
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1 period prescribed under subsection (a), the 

2 Administrator shall annually determine 

3 whether there has been a material change 

4 in conditions which would support a find5 ing that the amount of the defendant par6 ticipant’s payment under the statutory al7 location was not inequitable. Based on this 

8 determination, the Administrator may, 

9 consistent with the policies and legislative 

10 intent underlying this Act, reinstate any or 

11 all of the payment obligations of the de12 fendant participant as if the inequity ad13 justment had not been granted for that 3- 

14 year period. 

15 (ii) TERMS AND CONDITIONS.—In the 

16 event of a reinstatement under clause (i), 

17 the Administrator may require the defend18 ant participant to pay any part or all of 

19 amounts not paid due to the inequity ad20 justment on such terms and conditions as 

21 established by the Administrator. 

22 (4) LIMITATION ON ADJUSTMENTS.—The ag23 gregate total of financial hardship adjustments 

24 under paragraph (2) and inequity adjustments under 
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1 paragraph (3) in effect in any given year shall not 

2 exceed $300,000,000, except to the extent that— 

3 (A) additional monies are available for 

4 such adjustments as a result of carryover of 

5 prior years’ funds under subsection (j)(3) or as 

6 a result of monies being made available in that 

7 year under subsection (k)(1)(A).; or 

8 (B) the Administrator determines that the 

9 $300,000,000 is insufficient and additional ad10 justments as provided under paragraph (5) are 

11 needed to address situations in which a defend12 ant participant would otherwise be rendered in13 solvent by its payment obligations without such 

14 adjustment. 

15 (5) BANKRUPTCY RELIEF.— 

16 (A) IN GENERAL.—Any defendant partici17 pant may apply for an adjustment under this 

18 paragraph at any time during the period in 

19 which a payment obligation to the Fund remains 

20 outstanding and may qualify for such adjust21 ment by demonstrating, to a reasonable degree of 

22 certainty, evidence that the amount of its pay23 ment obligation would render the defendant par24 ticipant insolvent, as defined under section 101 
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1 of title 11, United States Code, and unable to 

2 pay its debts as they become due. 

3 (B) INFORMATION REQUIRED.—Any defend4 ant participant seeking an adjustment or re5 newal of an adjustment under this paragraph 

6 shall provide the Administrator with the infor7 mation required under section 521(1) of title 11 

8 of the United States Code. 

9 (C) LIMITATION.—Any adjustment granted 

10 by the Administrator under subparagraph (A) 

11 shall be limited to the extent reasonably nec12 essary to prevent insolvency of a defendant par13 ticipant. 

14 (D) TERM.—To the extent the Adminis15 trator grants any relief under this paragraph, 

16 such adjustments shall have a term of 1 year. An 

17 adjustment may be renewed or modified on an 

18 annual basis upon the defendant participant 

19 demonstrating that the adjustment or modifica20 tion remains justified under this paragraph. 

21 (E) REINSTATEMENT.—During the funding 

22 period prescribed under subparagraph (A), the 

23 Administrator shall annually determine whether 

24 there has been a material change in the financial 

25 condition of any defendant participant granted 
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1 an adjustment under this paragraph such that 

2 the Administrator may, consistent with the poli3 cies and legislative intent underlying this Act, 

4 reinstate under terms and conditions established 

5 by the Administrator any part or all of the de6 fendant participant’s payment obligation under 

7 the statutory allocation that was not paid dur8 ing the adjustment term. 

9 (5)(6) ADVISORY PANELS.— 

10 (A) APPOINTMENT.—The Administrator 

11 shall appoint a Financial Hardship Adjustment 

12 Panel and an Inequity Adjustment Panel to ad13 vise the Administrator in carrying out this sub14 section. 

15 (B) MEMBERSHIP.—The membership of 

16 the panels appointed under subparagraph (A) 

17 may overlap. 

18 (C) COORDINATION.—The panels ap19 pointed under subparagraph (A) shall coordi20 nate their deliberations and advice. 

21 (e) LIMITATION ON LIABILITY.—The liability of each 

22 defendant participant to pay to the Fund shall be limited 

23 to the payment obligations under this Act, and, except as 

24 provided in subsection (f) and section 203(b)(2)(D), no 
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1 defendant participant shall have any liability for the pay2 ment obligations of any other defendant participant. 

3 (f) CONSOLIDATION OF PAYMENTS.— 

4 (1) IN GENERAL.—For purposes of determining 

5 the payment levels of defendant participants, any af6 filiated group including 1 or more defendant partici7 pants may irrevocably elect, as part of the submis8 sions to be made under paragraphs (1) and (3) of 

9 subsection (i), to report on a consolidated basis all 

10 of the information necessary to determine the pay11 ment level under this subtitle and pay to the Fund 

12 on a consolidated basis. 

13 (2) ELECTION.—If an affiliated group elects 

14 consolidation as provided in this subsection— 

15 (A) for purposes of this Act other than 

16 this subsection, the affiliated group shall be 

17 treated as if it were a single participant, includ18 ing with respect to the assessment of a single 

19 annual payment under this subtitle for the en20 tire affiliated group; 

21 (B) the ultimate parent of the affiliated 

22 group shall prepare and submit each submission 

23 to be made under subsection (i) on behalf of the 

24 entire affiliated group and shall be solely liable, 

25 as between the Administrator and the affiliated 
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1 group only, for the payment of the annual 

2 amount due from the affiliated group under this 

3 subtitle, except that, if the ultimate parent does 

4 not pay when due any payment obligation for 

5 the affiliated group, the Administrator shall 

6 have the right to seek payment of all or any 

7 portion of the entire amount due (as well as 

8 any other amount for which the affiliated group 

9 may be liable under sections 223 and 224) from 

10 any member of the affiliated group; 

11 (C) all members of the affiliated group 

12 shall be identified in the submission under sub13 section (i) and shall certify compliance with this 

14 subsection and the Administrator’s regulations 

15 implementing this subsection; and 

16 (D) the obligations under this subtitle shall 

17 not change even if, after the date of enactment 

18 of this Act, the beneficial ownership interest be19 tween any members of the affiliated group shall 

20 change. 

21 (3) CAUSE OF ACTION.—Notwithstanding sec22 tion 221(e), this Act shall not preclude actions 

23 among persons within an affiliated group with re24 spect to the payment obligations under this Act. 
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1 (g) DETERMINATION OF PRIOR ASBESTOS EXPENDI2 TURES.— 

3 (1) IN GENERAL.—For purposes of determining 

4 a defendant participant’s prior asbestos expendi5 tures, the Administrator shall prescribe such rules 

6 as may be necessary or appropriate to assure that 

7 payments by indemnitors before December 31, 2002, 

8 shall be counted as part of the indemnitor’s prior as9 bestos expenditures, rather than the indemnitee’s 

10 prior asbestos expenditures, in accordance with this 

11 subsection. 

12 (2) INDEMNIFIABLE COSTS.—If an indemnitor 

13 has paid or reimbursed to an indemnitee any 

14 indemnifiable cost or otherwise made a payment on 

15 behalf of or for the benefit of an indemnitee to a 

16 third party for an indemnifiable cost before Decem17 ber 31, 2002, the amount of such indemnifiable cost 

18 shall be solely for the account of the indemnitor for 

19 purposes under this Act. 

20 (3) INSURANCE PAYMENTS.—When computing 

21 the prior asbestos expenditures with respect to an 

22 asbestos claim, any amount paid or reimbursed by 

23 insurance shall be solely for the account of the 

24 indemnitor, even if the indemnitor would have no di25 rect right to the benefit of the insurance, if— 
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1 (A) such insurance has been paid or reim2 bursed to the indemnitor or the indemnitee, or 

3 paid on behalf of or for the benefit of the 

4 indemnitee; and 

5 (B) the indemnitor has either, with respect 

6 to such asbestos claim or any similar asbestos 

7 claim, paid or reimbursed to its indemnitee any 

8 indemnifiable cost or paid to any third party on 

9 behalf of or for the benefit of the indemnitee 

10 any indemnifiable cost. 

11 (4) TREATMENT OF CERTAIN EXPENDI12 TURES.—Notwithstanding any other provision of 

13 this Act, where— 

14 (A) an indemnitor entered into a stock 

15 purchase agreement in 1988 that involved the 

16 sale of the stock of businesses that produced 

17 friction and other products; and 

18 (B) the stock purchase agreement provided 

19 that the indemnitor indemnified the indemnitee 

20 and its affiliates for losses arising from various 

21 matters, including asbestos claims— 

22 (i) asserted before the date of the 

23 agreement; and 
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1 (ii) filed after the date of the agree2 ment and prior to the 10-year anniversary 

3 of the stock sale, 

4 then the prior asbestos expenditures arising from the 

5 asbestos claims described in clauses (i) and (ii) shall 

6 not be for the account of either the indemnitor or 

7 indemnitee. 

8 (h) MINIMUM ANNUAL PAYMENTS.— 

9 (1) IN GENERAL.—The aggregate annual pay10 ments of defendant participants to the Fund shall be 

11 at least $3,000,000,000 for each calendar year in 

12 the first 30 years of the Fund, or until such shorter 

13 time as the condition set forth in subsection (a)(2) 

14 is attained. 

15 (2) GUARANTEED PAYMENT ACCOUNT.—To the 

16 extent payments in accordance with sections 202 

17 and 203 (as modified by subsections (b), (d), (f) and 

18 (g) of this section) (as modified by subsections (b), 

19 (d), (f), (g), and (m) of this section) fail in any year 

20 to raise at least $3,000,000,000 net of any adjust21 ments under subsection (d) , after applicable reduc22 tions or adjustments have been taken according to 

23 subsections (d) and (m), the balance needed to meet 

24 this required minimum aggregate annual payment 
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1 shall be obtained from the defendant guaranteed 

2 payment account established under subsection (k). 

3 (3) GUARANTEED PAYMENT SURCHARGE.—To 

4 the extent the procedure set forth in paragraph (2) 

5 is insufficient to satisfy the required minimum ag6 gregate annual payment net of any adjustments 

7 under subsection (d) , after applicable reductions or 

8 adjustments have been taken according to subsections 

9 (d) and (m), the Administrator may shall unless the 

10 Administrator implements a funding holiday under 

11 section 205(b), assess a guaranteed payment sur12 charge under subsection (l). 

13 (i) PROCEDURES FOR MAKING PAYMENTS.— 

14 (1) INITIAL YEAR: TIERS II–VI.— 

15 (A) IN GENERAL.—Not later than 120 90 

16 days after enactment of this Act, each defend17 ant participant that is included in Tiers II, III, 

18 IV, V, or VI shall file with the Administrator— 

19 (i) a statement of whether the defend20 ant participant irrevocably elects to report 

21 on a consolidated basis under subsection 

22 (f); 

23 (ii) a good-faith estimate of its prior 

24 asbestos expenditures; 
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1 (iii) a statement of its 2002 revenues, 

2 determined in accordance with section 

3 203(a)(2); and 

4 (iv) payment in the amount specified 

5 in section 203 for the lowest subtier of the 

6 tier within which the defendant participant 

7 falls, except that if the defendant partici8 pant, or the affiliated group including the 

9 defendant participant, had 2002 revenues 

10 exceeding $3,000,000,000, it or its affili11 ated group shall pay the amount specified 

12 for Subtier 3 of Tiers II, III, or IV or 

13 Subtier 2 of Tiers V or VI, depending on 

14 the applicable Tier.; and 

15 (v) a signature page personally 

16 verifying the truth of the statements and es17 timates described under this subparagraph, 

18 as required under section 404 of the Sar19 banes-Oxley Act of 2002 (15 U.S.C. 7201 et 

20 seq.). 

21 (B) RELIEF.— 

22 (i) IN GENERAL.—The Administrator 

23 shall establish procedures to grant a de24 fendant participant relief from its initial 
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1 payment obligation if the participant shows 

2 that— 

3 (I) the participant is likely to 

4 qualify for a financial hardship ad5 justment; and 

6 (II) failure to provide interim re7 lief would cause severe irreparable 

8 harm. 

9 (ii) JUDICIAL RELIEF.—The Adminis10 trator’s refusal to grant relief under clause 

11 (i) is subject to immediate judicial review 

12 under section 303. 

13 (2) INITIAL YEAR: TIER I.—Not later than 60 

14 days after enactment of this Act, each debtor shall 

15 file with the Administrator— 

16 (A) a statement identifying the bankruptcy 

17 case(s) associated with the debtor; 

18 (B) a statement whether its prior asbestos 

19 expenditures exceed $1,000,000; 

20 (C) a statement whether it has material 

21 continuing business operations and, if not, 

22 whether it holds cash or other assets that have 

23 been allocated or earmarked for asbestos settle24 ments; 
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1 (D) in the case of debtors falling within 

2 Subtier 1 of Tier I— 

3 (i) a statement of the debtor’s 2002 

4 revenues, determined in accordance with 

5 section 203(a)(2), ; 

6 (ii) for those debtors subject to the pay7 ment requirement of section 

8 203(b)(2)(B)(ii), a statement whether its 

9 prior asbestos expenditures do not exceed 

10 $10,000,000, and a description of its busi11 ness operations sufficient to show the re12 quirements of that section are met; and 

13 (iii) a payment under section 

14 203(b)(2)(B); 

15 (E) in the case of debtors falling within 

16 Subtier 2 of Tier I, an assignment of its assets 

17 under section 203(b)(3)(B); and 

18 (F) in the case of debtors falling within 

19 Subtier 3 of Tier I, a payment under section 

20 203(b)(4)(B), and a statement of how such 

21 payment was calculated.; and 

22 (G) a signature page personally verifying 

23 the truth of the statements and estimates de24 scribed under this paragraph, as required under 
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1 section 404 of the Sarbanes-Oxley Act of 2002 

2 (15 U.S.C. 7201 et seq.). 

3 (3) INITIAL YEAR: TIER VII.—Not later than 90 

4 days after enactment of this Act, each defendant 

5 participant in Tier VII shall file with the Adminis6 trator— 

7 (A) a good-faith estimate of all payments 

8 of the type described in section 203(h)(1) (as 

9 modified by section 203(h)(6)); 

10 (B) a statement of revenues calculated in 

11 accordance with sections 203(a)(2) and 203(h); 

12 and 

13 (C) payment in the amount specified in 

14 section 203(h). 

15 (4) NOTICE TO PARTICIPANTS.—Not later than 

16 240 days after enactment of this Act, the Adminis17 trator shall— 

18 (A) directly notify all reasonably identifi19 able defendant participants of the requirement 

20 to submit information necessary to calculate the 

21 amount of any required payment to the Fund; 

22 and 

23 (B) publish in the Federal Register a no24 tice— 
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1 (i) setting forth the criteria in this 

2 Act, and as prescribed by the Adminis3 trator in accordance with this Act, for pay4 ing under this subtitle as a defendant par5 ticipant and requiring any person who may 

6 be a defendant participant to submit such 

7 information; and 

8 (ii) that includes a list of all defend9 ant participants notified by the Adminis10 trator under subparagraph (A), and pro11 vides for 30 days for the submission by the 

12 public of comments or information regard13 ing the completeness and accuracy of the 

14 list of identified defendant participants. 

15 (5) RESPONSE REQUIRED.— 

16 (A) IN GENERAL.—Any person who re17 ceives notice under paragraph (4)(A), and any 

18 other person meeting the criteria specified in 

19 the notice published under paragraph (4)(B), 

20 shall provide the Administrator with an address 

21 to send any notice from the Administrator in 

22 accordance with this Act and all the informa23 tion required by the Administrator in accord24 ance with this subsection no later than the ear25 lier of— 
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1 (i) 30 days after the receipt of direct 

2 notice; or 

3 (ii) 30 days after the publication of 

4 notice in the Federal Register. 

5 (B) CERTIFICATION.—The response sub6 mitted under subparagraph (A) shall be signed 

7 by a responsible corporate officer, general part8 ner, proprietor, or individual of similar author9 ity, who shall certify under penalty of law the 

10 completeness and accuracy of the information 

11 submitted. 

12 (C) CONSENT TO AUDIT AUTHORITY.—The 

13 response submitted under subparagraph (A) 

14 shall include, on behalf of the defendant partici15 pant or affiliated group, a consent to the Ad16 ministrator’s audit authority under section 

17 221(d). 

18 (6) NOTICE OF INITIAL DETERMINATION.— 

19 (A) IN GENERAL.— 

20 (i) NOTICE TO INDIVIDUAL.—Not 

21 later than 60 days after receiving a re22 sponse under paragraph (5), the Adminis23 trator shall send the person a notice of ini24 tial determination identifying the tier and 

25 subtier, if any, into which the person falls 
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1 and the annual payment obligation, if any, 

2 to the Fund, which determination shall be 

3 based on the information received from the 

4 person under this subsection and any other 

5 pertinent information available to the Ad6 ministrator and identified to the defendant 

7 participant. 

8 (ii) PUBLIC NOTICE.—Not later than 

9 7 days after sending the notification of ini10 tial determination to defendant partici11 pants, the Administrator shall publish in 

12 the Federal Register a notice listing the 

13 defendant participants that have been sent 

14 such notification, and the initial deter15 mination identifying the tier and subtier 

16 assignment and annual payment obligation 

17 of each identified participant. 

18 (B) NO RESPONSE; INCOMPLETE RE19 SPONSE.—If no response in accordance with 

20 paragraph (5) is received from a defendant par21 ticipant, or if the response is incomplete, the 

22 initial determination shall be based on the best 

23 information available to the Administrator. 

24 (C) PAYMENTS.—Within 30 days of receiv25 ing a notice of initial determination requiring 
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1 payment, the defendant participant shall pay 

2 the Administrator the amount required by the 

3 notice, after deducting any previous payment 

4 made by the participant under this subsection. 

5 If the amount that the defendant participant is 

6 required to pay is less than any previous pay7 ment made by the participant under this sub8 section, the Administrator shall credit any ex9 cess payment against the future payment obli10 gations of that defendant participant. The 

11 pendency of a petition for rehearing under 

12 paragraph (10) shall not stay the obligation of 

13 the participant to make the payment specified 

14 in the Administrator’s notice. 

15 (7) EXEMPTIONS FOR INFORMATION RE16 QUIRED.— 

17 (A) PRIOR ASBESTOS EXPENDITURES.—In 

18 lieu of submitting information related to prior 

19 asbestos expenditures as may be required for 

20 purposes of this subtitle, a non-debtor defend21 ant participant may consent to be assigned to 

22 Tier II. 

23 (B) REVENUES.—In lieu of submitting in24 formation related to revenues as may be re25 quired for purposes of this subtitle, a non-debt-
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1 or defendant participant may consent to be as2 signed to Subtier 1 of the defendant partici3 pant’s applicable tier. 

4 (8) NEW INFORMATION.— 

5 (A) EXISTING PARTICIPANT.—The Admin6 istrator shall adopt procedures for requiring ad7 ditional payment, or refunding amounts already 

8 paid, based on new information received. 

9 (B) ADDITIONAL PARTICIPANT.—If the 

10 Administrator, at any time, receives information 

11 that an additional person may qualify as a de12 fendant participant, the Administrator shall re13 quire such person to submit information nec14 essary to determine whether that person is re15 quired to make payments, and in what amount, 

16 under this subtitle and shall make any deter17 mination or take any other act consistent with 

18 this Act based on such information or any other 

19 information available to the Administrator with 

20 respect to such person. 

21 (9) SUBPOENAS.—The Administrator may re22 quest the Attorney General to subpoena persons to 

23 compel testimony, records, and other information 

24 relevant to its responsibilities under this section. The 

25 Attorney General may enforce such subpoena in ap-
200 

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1 propriate proceedings in the United States district 

2 court for the district in which the person to whom 

3 the subpoena was addressed resides, was served, or 

4 transacts business. 

5 (10) REHEARING.—A defendant participant has 

6 a right to obtain rehearing of the Administrator’s 

7 determination under this subsection of the applicable 

8 tier or subtier and, of the Administrator’s deter9 mination under subsection (d) of a financial hard10 ship or inequity adjustment, and of the Administra11 tor’s determination under subsection (m) of a dis12 tributor’s adjustment, if the request for rehearing is 

13 filed within 30 days after the defendant participant’s 

14 receipt of notice from the Administrator of the de15 termination. A defendant participant may not file an 

16 action under section 303 unless the defendant par17 ticipant requests a rehearing under this paragraph. 

18 The Administrator shall publish a notice in the Fed19 eral Register of any change in a defendant partici20 pant’s tier or subtier assignment or payment obliga21 tion as a result of a rehearing. 

22 (j) DEFENDANT HARDSHIP AND INEQUITY ADJUST23 MENT ACCOUNT.— 

24 (1) IN GENERAL.—To the extent the total pay25 ments by defendant participants in any given year 
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1 exceed the minimum aggregate annual payments re2 quired under subsection (h), excess monies up to a 

3 maximum of $300,000,000 in any such year shall be 

4 placed in a defendant hardship and inequity adjust5 ment account established within the Fund by the 

6 Administrator. 

7 (2) USE OF ACCOUNT MONIES.—Monies from 

8 the defendant hardship and inequity adjustment ac9 count shall be preserved and administered like the 

10 remainder of the Fund, but shall be reserved and 

11 may be used only— 

12 (A) to make up for any relief granted to a 

13 defendant participant for severe financial hard14 ship or demonstrated inequity under subsection 

15 (d) or to reimburse any defendant participant 

16 granted such relief after its payment of the 

17 amount otherwise due; and 

18 (B) if the condition set forth in subsection 

19 (a)(2) is met, for any purpose that the Fund 

20 may serve under this Act. 

21 (3) CARRYOVER OF UNUSED FUNDS.—To the 

22 extent the Administrator does not, in any given year, 

23 use all of the funds allocated to the account under 

24 paragraph (1) for adjustments granted under sub25 section (d), remaining funds in the account shall be 
202 

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1 carried forward for use by the Administrator for ad2 justments in subsequent years. 

3 (k) DEFENDANT GUARANTEED PAYMENT AC4 COUNT.— 

5 (1) IN GENERAL.—Subject to subsections (h) 

6 and (j), if there are excess monies paid by defendant 

7 participants in any given year, including any bank8 ruptcy trust credits that may be due under section 

9 222(e)(d), such monies— 

10 (A) at the discretion of the Administrator, 

11 may be used to provide additional adjustments 

12 under subsection (d), up to a maximum aggre13 gate of $50,000,000 in such year; and 

14 (B) to the extent not used under subpara15 graph (A), shall be placed in a defendant guar16 anteed payment account established within the 

17 Fund by the Administrator. 

18 (2) USE OF ACCOUNT MONIES.—Monies from 

19 the defendant guaranteed payment account shall be 

20 preserved and administered like the remainder of the 

21 Fund, but shall be reserved and may be used only— 

22 (A) to ensure the minimum aggregate an23 nual payment set forth in required under sub24 section (h) net of any adjustments under sub25 section (d), after applicable reductions or adjust-
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1 ments have been taken according to subsections 

2 (d) and (m) is reached each year; and 

3 (B) if the condition set forth in subsection 

4 (a)(2) is met, for any purpose that the Fund 

5 may serve under this Act. 

6 (l) GUARANTEED PAYMENT SURCHARGE.— 

7 (1) IN GENERAL.—To the extent there are in8 sufficient monies in the defendant guaranteed pay9 ment account established in subsection (k) to attain 

10 the minimum aggregate annual payment required 

11 under subsection (h) net of any adjustments under 

12 subsection (d) in any given year, the Administrator 

13 may shall, unless the Administrator implements a 

14 funding holiday under section 205(b), impose on each 

15 defendant participant a surcharge as necessary to 

16 raise the balance required to attain the minimum 

17 aggregate annual payment required under subsection 

18 (h) net of any adjustments under subsection (d) as 

19 provided in this subsection. Any such surcharge shall 

20 be imposed on a pro rata basis, in accordance with 

21 each defendant participant’s relative annual liability 

22 under sections 202 and 203 (as modified by sub23 sections (b), (d), (f), and (g) of this section) (as 

24 modified by subsections (b), (d), (f), (g), and (m) of 

25 this section). 
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1 (2) LIMITATION.— 

2 (A) IN GENERAL.—In no case shall the Ad3 ministrator impose a surcharge under this sub4 section on any defendant participant included in 

5 Subtier 3 of Tiers V or VI as described under 

6 section 203. 

7 (B) REALLOCATION.—Any amount not im8 posed under subparagraph (A) shall be reallo9 cated on a pro-rata basis, in accordance with 

10 each defendant participant’s (other than a de11 fendant participant described under subpara12 graph (A)) relative annual liability under sec13 tions 202 and 203 (as modified by subsections 

14 (b), (d), (f), and (g) of this section). 

15 (2)(3) CERTIFICATION.— 

16 (A) IN GENERAL.—Before imposing a 

17 guaranteed payment surcharge under this sub18 section, the Administrator shall certify that he 

19 or she has used all reasonable efforts to collect 

20 mandatory payments for all defendant partici21 pants, including by using the authority in sub22 section (i)(9) of this section and section 223. 

23 (B) NOTICE AND COMMENT.—Before mak24 ing a final certification under subparagraph 

25 (C), the Administrator shall publish a notice in 
205 

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1 the Federal Register of a proposed certification 

2 and provide in such notice for a public comment 

3 period of 30 days. 

4 (C) FINAL CERTIFICATION.— 

5 (i) IN GENERAL.—The Administrator 

6 shall publish a notice of the final certifi7 cation in the Federal Register after consid8 eration of all comments submitted under 

9 subparagraph (B). 

10 (ii) WRITTEN NOTICE.—Not later 

11 than 30 days after publishing any final 

12 certification under clause (i), the Adminis13 trator shall provide each defendant partici14 pant with written notice of that defendant 

15 participant’s payment, including the 

16 amount of any surcharge. 

17 (m) ADJUSTMENTS FOR DISTRIBUTORS.— 

18 (1) DEFINITION.—In this subsection, the term 

19 ‘‘distributor’’ means a person— 

20 (A) whose prior asbestos expenditures arise 

21 exclusively from the sale of products manufac22 tured by others; 

23 (B) who did not prior to December 31, 

24 2002, sell raw asbestos or a product containing 

25 more than 95 percent asbestos by weight; 
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1 (C) whose prior asbestos expenditures did 

2 not arise out of— 

3 (i) the manufacture, installation, re4 pair, reconditioning, maintaining, serv5 icing, constructing, or remanufacturing of 

6 any product; 

7 (ii) the control of the design, specifica8 tion, or manufacture of any product; or 

9 (iii) the sale or resale of any product 

10 under, as part of, or under the auspices of, 

11 its own brand, trademark, or service mark; 

12 and 

13 (D) who is not subject to assignment under 

14 section 202 to Tier I, II, III or VII. 

15 (2) TIER REASSIGNMENT FOR DISTRIBUTORS.— 

16 (A) IN GENERAL.—Notwithstanding section 

17 202, the Administrator shall assign a distributor 

18 to a Tier for purposes of this title under the pro19 cedures set forth in this paragraph. 

20 (B) DESIGNATION.—After a final deter21 mination by the Administrator under section 

22 204(i), any person who is, or any affiliated 

23 group in which every member is, a distributor 

24 may apply to the Administrator for adjustment 

25 of its Tier assignment under this subsection. 
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1 Such application shall be prepared in accord2 ance with such procedures as the Administrator 

3 shall promulgate by rule. Once the Adminis4 trator designates a person or affiliated group as 

5 a distributor under this subsection, such designa6 tion and the adjustment of tier assignment under 

7 this subsection are final. 

8 (C) PAYMENTS.—Any person or affiliated 

9 group that seeks adjustment of its Tier assign10 ment under this subsection shall pay all amounts 

11 required of it under this title until a final deter12 mination by the Administrator is made under 

13 this subsection. Such payments may not be 

14 stayed pending any appeal. The Administrator 

15 shall grant any person or affiliated group a re16 fund or credit of any payments made if such ad17 justment results in a lower payment obligation. 

18 (D) ADJUSTMENT.—Subject to paragraph 

19 (3), any person or affiliated group that the Ad20 ministrator has designated as a distributor 

21 under this subsection shall be given an adjust22 ment of Tier assignment as follows: 

23 (i) A distributor that but for this sub24 section would be assigned to Tier IV shall be 

25 deemed assigned to Tier V. 
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1 (ii) A distributor that but for this sub2 section would be assigned to Tier V shall be 

3 deemed assigned to Tier VI. 

4 (iii) A distributor that but for this 

5 subsection would be assigned to Tier VI 

6 shall be deemed assigned to no Tier and 

7 shall have no obligation to make any pay8 ment to the Fund under this Act. 

9 (E) EXCLUSIVE TO INEQUITY ADJUST10 MENT.—Any person or affiliated group des11 ignated by the Administrator as a distributor 

12 under this subsection shall not be eligible for an 

13 inequity adjustment under subsection 204(d). 

14 (3) LIMITATION ON ADJUSTMENTS.—The aggre15 gate total of distributor adjustments under this sub16 section in effect in any given year shall not exceed 

17 $50,000,000. If the aggregate total of distributors ad18 justments under this subsection would otherwise ex19 ceed $50,000,000, then each distributor’s adjustment 

20 shall be reduced pro rata until the aggregate of all ad21 justments equals $50,000,000. 

22 (4) REHEARING.—A defendant participant has a 

23 right to obtain a rehearing of the Administrator’s de24 termination on an adjustment under this subsection 

25 under the procedures prescribed in subsection (i)(10). 
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1 SEC. 205. STEPDOWNS AND FUNDING HOLIDAYS. 

2 (a) STEPDOWNS.— 

3 (1) IN GENERAL.—Subject to paragraph (2), 

4 the minimum aggregate annual funding obligation 

5 under section 204(h) shall be reduced by 10 percent 

6 of the initial minimum aggregate funding obligation 

7 at the end of the tenth, fifteenth, twentieth, and 

8 twenty-fifth years after the date of enactment of this 

9 Act. The reductions under this paragraph shall be 

10 applied on an equal pro rata basis to the funding ob11 ligations of all defendant participants, except with 

12 respect to defendant participants in Tier 1, Subtiers 

13 2 and 3, and class action trusts. 

14 (2) LIMITATION.—The Administrator shall sus15 pend, cancel, reduce, or delay any reduction under 

16 paragraph (1) if at any time the Administrator 

17 finds, in accordance with subsection (c), that such 

18 action is necessary and appropriate to ensure that 

19 the assets of the Fund and expected future pay20 ments remain sufficient to satisfy the Fund’s antici21 pated obligations. 

22 (b) FUNDING HOLIDAYS.— 

23 (1) IN GENERAL.—If the Administrator deter24 mines, at any time after 10 years following the date 

25 of enactment of this Act, that the assets of the Fund 

26 at the time of such determination and expected fu-
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1 ture payments, taking into consideration any reduc2 tions under subsection (a), are sufficient to satisfy 

3 the Fund’s anticipated obligations without the need 

4 for all, or any portion of, that year’s payment other5 wise required under this subtitle, the Administrator 

6 shall reduce or waive all or any part of the payments 

7 required from defendant participants for that year. 

8 (2) ANNUAL REVIEW.—The Administrator shall 

9 undertake the review required by this subsection and 

10 make the necessary determination under paragraph 

11 (1) every year. 

12 (3) LIMITATIONS ON FUNDING HOLIDAYS.—Any 

13 reduction or waiver of the defendant participants’ 

14 funding obligations shall— 

15 (A) be made only to the extent the Admin16 istrator determines that the Fund will still be 

17 able to satisfy all of its anticipated obligations; 

18 and 

19 (B) be applied on an equal pro rata basis 

20 to the funding obligations of all defendant par21 ticipants, except with respect to defendant par22 ticipants in Subtiers 2 and 3 of Tier I and class 

23 action trusts, for that year. 

24 (4) NEW INFORMATION.—If at any time the 

25 Administrator determines that a reduction or waiver 
211 

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1 under this section may cause the assets of the Fund 

2 and expected future payments to decrease to a level 

3 at which the Fund may not be able to satisfy all of 

4 its anticipated obligations, the Administrator shall 

5 revoke all or any part of such reduction or waiver 

6 to the extent necessary to ensure that the Fund’s 

7 obligations are met. Such revocations shall be ap8 plied on an equal pro rata basis to the funding obli9 gations of all defendant participants, except defend10 ant participants in Subtiers 2 and 3 of Tier I and 

11 class action trusts, for that year. 

12 (c) CERTIFICATION.— 

13 (1) IN GENERAL.—Before suspending, can14 celing, reducing, or delaying any reduction under 

15 subsection (a) or granting or revoking a reduction or 

16 waiver under subsection (b), the Administrator shall 

17 certify that the requirements of this section are sat18 isfied. 

19 (2) NOTICE AND COMMENT.—Before making a 

20 final certification under this subsection, the Admin21 istrator shall publish a notice in the Federal Reg22 ister of a proposed certification and a statement of 

23 the basis therefor and provide in such notice for a 

24 public comment period of 30 days. 

25 (3) FINAL CERTIFICATION.— 
212 

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1 (A) IN GENERAL.—The Administrator 

2 shall publish a notice of the final certification in 

3 the Federal Register after consideration of all 

4 comments submitted under paragraph (2). 

5 (B) WRITTEN NOTICE.—Not later than 30 

6 days after publishing any final certification 

7 under subparagraph (A), the Administrator 

8 shall provide each defendant participant with 

9 written notice of that defendant’s funding obli10 gation for that year. 

11 SEC. 206. ACCOUNTING TREATMENT. 

12 Defendant participants payment obligations to the 

13 Fund shall be subject to discounting under the applicable 

14 accounting guidelines for generally accepted accounting 

15 purposes and statutory accounting purposes for each de16 fendant participant. This section shall in no way reduce 

17 the amount of monetary payments to the Fund by defendant 

18 participants as required under section 202(a)(2). 

19 Subtitle B—Asbestos Insurers 

20 Commission 

21 SEC. 210. DEFINITION. 

22 In this subtitle, the term ‘‘captive insurance com23 pany’’ means a company— 

24 (1) whose entire beneficial interest is owned on 

25 the date of enactment of this Act, directly or indi-
213 

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1 rectly, by a defendant participant or by the ultimate 

2 parent or the affiliated group of a defendant partici3 pant; 

4 (2) whose primary commercial business during 

5 the period from calendar years 1940 through 1986 

6 was to provide insurance to its ultimate parent or 

7 affiliated group, or any portion of the affiliated 

8 group or a combination thereof; and 

9 (3) that was incorporated or operating no later 

10 than December 31, 2003. 

11 SEC. 211. ESTABLISHMENT OF ASBESTOS INSURERS COM12 MISSION. 

13 (a) ESTABLISHMENT.—There is established the As14 bestos Insurers Commission (referred to in this subtitle 

15 as the ‘‘Commission’’) to carry out the duties described 

16 in section 212. 

17 (b) MEMBERSHIP.— 

18 (1) APPOINTMENT.—The Commission shall be 

19 composed of 5 members who shall be appointed by 

20 the President, by and with the advice and consent 

21 of the Senate. 

22 (2) QUALIFICATIONS.— 

23 (A) EXPERTISE.—Members of the Com24 mission shall have sufficient expertise to fulfill 

25 their responsibilities under this subtitle. 
214 

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1 (B) CONFLICT OF INTEREST.— 

2 (i) IN GENERAL.—No member of the 

3 Commission appointed under paragraph 

4 (1) may be an employee or immediate fam5 ily member of an employee of an insurer 

6 participant. No member of the Commission 

7 shall be a shareholder of any insurer par8 ticipant. No member of the Commission 

9 shall be a former officer or director, or a 

10 former employee or former shareholder of 

11 any insurer participant who was such an 

12 employee, shareholder, officer, or director 

13 at any time during the 2-year period end14 ing on the date of the appointment, unless 

15 that is fully disclosed before consideration 

16 in the Senate of the nomination for ap17 pointment to the Commission. 

18 (ii) DEFINITION.—In clause (i), the 

19 term ‘‘shareholder’’ shall not include a 

20 broadly based mutual fund that includes 

21 the stocks of insurer participants as a por22 tion of its overall holdings. 

23 (C) FEDERAL EMPLOYMENT.—A member 

24 of the Commission may not be an officer or em-
215 

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1 ployee of the Federal Government, except by 

2 reason of membership on the Commission. 

3 (3) PERIOD OF APPOINTMENT.—Members shall 

4 be appointed for the life of the Commission. 

5 (4) VACANCIES.—Any vacancy in the Commis6 sion shall be filled in the same manner as the origi7 nal appointment. 

8 (5) CHAIRMAN.—The President shall select a 

9 Chairman from among the members of the Commis10 sion. 

11 (c) MEETINGS.— 

12 (1) INITIAL MEETING.—Not later than 30 days 

13 after the date on which all members of the Commis14 sion have been appointed, the Commission shall hold 

15 its first meeting. 

16 (2) SUBSEQUENT MEETINGS.—The Commission 

17 shall meet at the call of the Chairman, as necessary 

18 to accomplish the duties under section 212. 

19 (3) QUORUM.—No business may be conducted 

20 or hearings held without the participation of a ma21 jority of the members of the Commission. 

22 SEC. 212. DUTIES OF ASBESTOS INSURERS COMMISSION. 

23 (a) DETERMINATION OF INSURER PAYMENT OBLIGA24 TIONS.— 

25 (1) IN GENERAL.— 
216 

S 852 RS 

1 (A) DEFINITIONS.—For the purposes of 

2 this Act, the terms ‘‘insurer’’ and ‘‘insurer par3 ticipant’’ shall, unless stated otherwise, include 

4 direct insurers and reinsurers, as well as any 

5 run-off entity established, in whole or in part, 

6 to review and pay asbestos claims. 

7 (B) PROCEDURES FOR DETERMINING IN8 SURER PAYMENTS.—The Commission shall de9 termine the amount that each insurer partici10 pant shall be required to pay into the Fund 

11 under the procedures described in this section. 

12 The Commission shall make this determination 

13 by first promulgating a rule establishing a 

14 methodology for allocation of payments among 

15 insurer participants and then applying such 

16 methodology to determine the individual pay17 ment for each insurer participant. The method18 ology may include 1 or more allocation formulas 

19 to be applied to all insurer participants or 

20 groups of similarly situated participants. The 

21 Commission’s rule shall include a methodology 

22 for adjusting payments by insurer participants 

23 to make up, during any applicable payment 

24 year, any amount by which aggregate insurer 

25 payments fall below the level required in para-
217 

S 852 RS 

1 graph (3)(C). to make up, during the first 5 

2 years of the life of the Fund and any subsequent 

3 years as provided in section 405(e) for any re4 duction in an insurer participant’s annual allo5 cated amount caused by the granting of a finan6 cial hardship or exceptional circumstance adjust7 ment under this section, and any amount by 

8 which aggregate insurer payments fall below the 

9 level required under paragraph (3)(C) by reason 

10 of the failure or refusal of any insurer partici11 pant to make a required payment, or for any 

12 other reason that causes such payments to fall 

13 below the level required under paragraph (3)(C). 

14 The Commission shall conduct a thorough study 

15 (within the time limitations under this subpara16 graph) of the accuracy of the reserve allocation 

17 of each insurer participant, and may request in18 formation from the Securities and Exchange 

19 Commission or any State regulatory agency. 

20 Under this procedure, not later than 120 days 

21 after the initial meeting of the Commission, the 

22 Commission shall commence a rulemaking pro23 ceeding under section 213(a) to propose and 

24 adopt a methodology for allocating payments 

25 among insurer participants. In proposing an al-
218 

S 852 RS 

1 location methodology, the Commission may con2 sult with such actuaries and other experts as it 

3 deems appropriate. After hearings and public 

4 comment on the proposed allocation method5 ology, the Commission shall as promptly as pos6 sible promulgate a final rule establishing such 

7 methodology. After promulgation of the final 

8 rule, the Commission shall determine the indi9 vidual payment of each insurer participant 

10 under the procedures set forth in subsection 

11 (b). 

12 (C) SCOPE.—Every insurer, reinsurer, and 

13 runoff entity with asbestos-related obligations 

14 in the United States shall be subject to the 

15 Commission’s and Administrator’s authority 

16 under this Act, including allocation determina17 tions, and shall be required to fulfill its pay18 ment obligation without regard as to whether it 

19 is licensed in the United States. Every insurer 

20 participant not licensed or domiciled in the 

21 United States shall, upon the first payment to 

22 the Fund, submit a written consent to the Com23 mission’s and Administrator’s authority under 

24 this Act, and to the jurisdiction of the courts of 

25 the United States for purposes of enforcing this 
219 

S 852 RS 

1 Act, in a form determined by the Adminis2 trator. Any insurer participant refusing to pro3 vide a written consent shall be subject to fines 

4 and penalties as provided in section 223. 

5 (D) ISSUERS OF FINITE RISK POLICIES.— 

6 (i) IN GENERAL.—The issuer of any 

7 policy of retrospective reinsurance pur8 chased by an insurer participant or its af9 filiate after 1990 that provides for a risk 

10 or loss transfer to insure for incurred as11 bestos losses and other losses (both known 

12 and unknown), including those policies 

13 commonly referred to as ‘‘finite risk’’, ‘‘ag14 gregate stop loss’’, ‘‘aggregate excess of 

15 loss’’, or ‘‘loss portfolio transfer’’ policies, 

16 shall be obligated to make payments re17 quired under this Act directly to the Fund 

18 on behalf of the insurer participant who is 

19 the beneficiary of such policy, subject to 

20 the underlying retention and the limits of 

21 liability applicable to such policy. 

22 (ii) PAYMENTS.—Payments to the 

23 Fund required under this Act shall be 

24 treated as loss payments for asbestos bod25 ily injury (as if such payments were in-
220 

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1 curred as liabilities imposed in the tort 

2 system) and shall not be subject to exclu3 sion under policies described under clause 

4 (i) as a liability with respect to tax or as5 sessment. Within 90 days after the sched6 uled date to make an annual payment to 

7 the Fund, the insurer participant shall, at 

8 its discretion, direct the reinsurer issuing 

9 such policy to pay all or a portion of the 

10 annual payment directly to the Fund up to 

11 the full applicable limits of liability under 

12 the policy. The reinsurer issuing such pol13 icy shall be obligated to make such pay14 ments directly to the Fund and shall be 

15 subject to the enforcement provisions 

16 under section 223. The insurer participant 

17 shall remain obligated to make payment to 

18 the Fund of that portion of the annual 

19 payment not directed to the issuer of such 

20 reinsurance policy. 

21 (2) AMOUNT OF PAYMENTS.— 

22 (A) AGGREGATE PAYMENT OBLIGATION.— 

23 The total payment required of all insurer par24 ticipants over the life of the Fund shall be 
221 

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1 equal to $46,025,000,000, less any bankruptcy 

2 trust credits under section 222(d). 

3 (B) ACCOUNTING STANDARDS.—In deter4 mining the payment obligations of participants 

5 that are not licensed or domiciled in the United 

6 States or that are runoff entities, the Commis7 sion shall use accounting standards required for 

8 United States licensed direct insurers. 

9 (C) CAPTIVE INSURANCE COMPANIES.—No 

10 payment to the Fund shall be required from a 

11 captive insurance company, unless and only to 

12 the extent a captive insurance company, on the 

13 date of enactment of this Act, has liability, di14 rectly or indirectly, for any asbestos claim of a 

15 person or persons other than and unaffiliated 

16 with its ultimate parent or affiliated group or 

17 pool in which the ultimate parent participates 

18 or participated, or unaffiliated with a person 

19 that was its ultimate parent or a member of its 

20 affiliated group or pool at the time the relevant 

21 insurance or reinsurance was issued by the cap22 tive insurance company. 

23 (D) SEVERAL LIABILITY.—Unless other24 wise provided under this Act, each insurer par25 ticipant’s obligation to make payments to the 
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1 Fund is several. Unless otherwise provided 

2 under this Act, there is no joint liability, and 

3 the future insolvency by any insurer participant 

4 shall not affect the payment required of any 

5 other insurer participant. 

6 (3) PAYMENT OF CRITERIA.— 

7 (A) INCLUSION IN INSURER PARTICIPANT

8 CATEGORY.— 

9 (i) IN GENERAL.—Insurers that have 

10 paid, or been assessed by a legal judgment 

11 or settlement, at least $1,000,000 in de12 fense and indemnity costs before the date 

13 of enactment of this Act in response to 

14 claims for compensation for asbestos inju15 ries arising from a policy of liability insur16 ance or contract of liability reinsurance or 

17 retrocessional reinsurance shall be insurer 

18 participants in the Fund. Other insurers 

19 shall be exempt from mandatory payments. 

20 (ii) INAPPLICABILITY OF SECTION

21 202.—Since insurers may be subject in cer22 tain jurisdictions to direct action suits, and 

23 it is not the intent of this Act to impose 

24 upon an insurer, due to its operation as an 

25 insurer, payment obligations to the Fund 
223 

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1 in situations where the insurer is the sub2 ject of a direct action, no insurer subject 

3 to mandatory payments under this section 

4 212 shall also be liable for payments to the 

5 Fund as a defendant participant under 

6 section 202. 

7 (B) INSURER PARTICIPANT ALLOCATION

8 METHODOLOGY.— 

9 (i) IN GENERAL.—The Commission 

10 shall establish the payment obligations of 

11 individual insurer participants to reflect, 

12 on an equitable basis, the relative tort sys13 tem liability of the participating insurers in 

14 the absence of this Act, considering and 

15 weighting, as appropriate (but exclusive of 

16 workers’ compensation), such factors as— 

17 (I) historic premium for lines of 

18 insurance associated with asbestos ex19 posure over relevant periods of time; 

20 (II) recent loss experience for as21 bestos liability; 

22 (III) amounts reserved for asbes23 tos liability; 

24 (IV) the likely cost to each in25 surer participant of its future liabil-
224 

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1 ities under applicable insurance poli2 cies; and 

3 (V) any other factor the Commis4 sion may determine is relevant and 

5 appropriate. 

6 (ii) DETERMINATION OF RESERVES.— 

7 The Commission may establish procedures 

8 and standards for determination of the as9 bestos reserves of insurer participants. The 

10 reserves of a United States licensed rein11 surer that is wholly owned by, or under 

12 common control of, a United States li13 censed direct insurer shall be included as 

14 part of the direct insurer’s reserves when 

15 the reinsurer’s financial results are in16 cluded as part of the direct insurer’s 

17 United States operations, as reflected in 

18 footnote 33 of its filings with the National 

19 Association of Insurance Commissioners or 

20 in published financial statements prepared 

21 in accordance with generally accepted ac22 counting principles. 

23 (C) PAYMENT SCHEDULE.—The aggregate 

24 annual amount of payments by insurer partici-
225 

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1 pants over the life of the Fund shall be as fol2 lows: 

3 (i) For years 1 and 2, $2,700,000,000 

4 annually. 

5 (ii) For years 3 through 5, 

6 $5,075,000,000 annually. 

7 (iii) For years 6 through 27, 

8 $1,147,000,000 annually. 

9 (iv) For year 28, $166,000,000. 

10 (D) CERTAIN RUNOFF ENTITIES.— 

11 (i) IN GENERAL.—Whenever the Com12 mission requires payments by a runoff en13 tity that has assumed asbestos-related li14 abilities from a Lloyd’s syndicate or names 

15 that are members of such a syndicate, the 

16 Commission shall not require payments 

17 from such syndicates and names to the ex18 tent that the runoff entity makes its re19 quired payments. In addition, such syn20 dicates and names shall be required to 

21 make payments to the Fund in the amount 

22 of any adjustment granted to the runoff 

23 entity for severe financial hardship or ex24 ceptional circumstances. 
226 

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1 (ii) INCLUDED RUNOFF ENTITIES.— 

2 Subject to clause (i), a A runoff entity 

3 shall include any direct insurer or rein4 surer whose asbestos liability reserves have 

5 been transferred, directly or indirectly, to 

6 the runoff entity and on whose behalf the 

7 runoff entity handles or adjusts and, where 

8 appropriate, pays asbestos claims. 

9 (E) FINANCIAL HARDSHIP AND EXCEP10 TIONAL CIRCUMSTANCE ADJUSTMENTS.— 

11 (i) IN GENERAL.—Under the proce12 dures established in subsection (b), an in13 surer participant may seek adjustment of 

14 the amount of its payments based on ex15 ceptional circumstances or severe financial 

16 hardship. 

17 (ii) FINANCIAL ADJUSTMENTS.—An 

18 insurer participant may qualify for an ad19 justment based on severe financial hard20 ship by demonstrating that payment of the 

21 amounts required by the Commission’s 

22 methodology would jeopardize the solvency 

23 of such participant. 

24 (iii) EXCEPTIONAL CIRCUMSTANCE

25 ADJUSTMENT.—An insurer participant 
227 

S 852 RS 

1 may qualify for an adjustment based on 

2 exceptional circumstances by dem3 onstrating— 

4 (I) that the amount of its pay5 ments under the Commission’s alloca6 tion methodology is exceptionally in7 equitable when measured against the 

8 amount of the likely cost to the par9 ticipant of its future liability in the 

10 tort system in the absence of the 

11 Fund; 

12 (II) an offset credit as described 

13 in subparagraphs (A) and (C) of sub14 section (b)(4); or 

15 (III) other exceptional cir16 cumstances. 

17 The Commission may determine whether 

18 to grant an adjustment and the size of any 

19 such adjustment, but adjustments shall not 

20 reduce the aggregate payment obligations 

21 such adjustment, but except as provided 

22 under paragraph (1)(B), subsection (f)(3), 

23 and section 405(e), any such adjustment 

24 shall not affect the aggregate payment obli25 gations of insurer participants specified in 
228 

S 852 RS 

1 paragraph (2)(A) and subparagraph (C) of 

2 this paragraph. 

3 (iv) TIME PERIOD OF ADJUSTMENT.— 

4 Except for adjustments for offset credits, 

5 adjustments granted under this subsection 

6 shall have a term not to exceed 3 years. An 

7 insurer participant may renew its adjust8 ment by demonstrating to the Adminis9 trator that it remains justified. 

10 (F) FUNDING HOLIDAYS.— 

11 (i) IN GENERAL.—If the Administrator 

12 determines, at any time after 10 years fol13 lowing the date of enactment of this Act, 

14 that the assets of the Fund at the time of 

15 such determination and expected future 

16 payments are sufficient to satisfy the 

17 Fund’s anticipated obligations without the 

18 need for all, or any portion of, that year’s 

19 payment otherwise required under this sub20 title, the Administrator shall reduce or 

21 waive all or any part of the payments re22 quired from insurer participants for that 

23 year. 

24 (ii) ANNUAL REVIEW.—The Adminis25 trator shall undertake the review required 
229 

S 852 RS 

1 by this subsection and make the necessary 

2 determination under clause (i) every year. 

3 (iii) LIMITATIONS OF FUNDING HOLI4 DAYS.—Any reduction or waiver of the in5 surer participants’ funding obligations 

6 shall— 

7 (I) be made only to the extent the 

8 Administrator determines that the 

9 Fund will still be able to satisfy all of 

10 its anticipated obligations; and 

11 (II) be applied on an equal pro 

12 rata basis to the funding obligations of 

13 all insurer participants for that year. 

14 (iv) NEW INFORMATION.—If at any 

15 time the Administrator determines that a 

16 reduction or waiver under this section may 

17 cause the assets of the Fund and expected 

18 future payments to decrease to a level at 

19 which the Fund may not be able to satisfy 

20 all of its anticipated obligations, the Ad21 ministrator shall revoke all or any part of 

22 such reduction or waiver to the extent nec23 essary to ensure that the Fund’s obligations 

24 are met. Such revocations shall be applied 

25 on an equal pro rata basis to the funding 
230 

S 852 RS 

1 obligations of all insurer participants for 

2 that year. 

3 (b) PROCEDURE FOR NOTIFYING INSURER PARTICI4 PANTS OF INDIVIDUAL PAYMENT OBLIGATIONS.— 

5 (1) NOTICE TO PARTICIPANTS.—Not later than 

6 30 days after promulgation of the final rule estab7 lishing an allocation methodology under subsection 

8 (a)(1), the Commission shall— 

9 (A) directly notify all reasonably identifi10 able insurer participants of the requirement to 

11 submit information necessary to calculate the 

12 amount of any required payment to the Fund 

13 under the allocation methodology; and 

14 (B) publish in the Federal Register a no15 tice— 

16 (i) requiring any person who may be 

17 an insurer participant (as determined by 

18 criteria outlined in the notice) to submit 

19 such information; and 

20 (ii) that includes a list of all insurer 

21 participants notified by the Commission 

22 under subparagraph (A), and provides for 

23 30 days for the submission of comments or 

24 information regarding the completeness 
231 

S 852 RS 

1 and accuracy of the list of identified in2 surer participants. 

3 (2) RESPONSE REQUIRED BY INDIVIDUAL IN4 SURER PARTICIPANTS.— 

5 (A) IN GENERAL.—Any person who re6 ceives notice under paragraph (1)(A), and any 

7 other person meeting the criteria specified in 

8 the notice published under paragraph (1)(B), 

9 shall respond by providing the Commission with 

10 all the information requested in the notice 

11 under a schedule or by a date established by 

12 the Commission. 

13 (B) CERTIFICATION.—The response sub14 mitted under subparagraph (A) shall be signed 

15 by a responsible corporate officer, general part16 ner, proprietor, or individual of similar author17 ity, who shall certify under penalty of law the 

18 completeness and accuracy of the information 

19 submitted. 

20 (3) NOTICE TO INSURER PARTICIPANTS OF INI21 TIAL PAYMENT DETERMINATION.— 

22 (A) IN GENERAL.— 

23 (i) NOTICE TO INSURERS.—Not later 

24 than 120 days after receipt of the informa25 tion required by paragraph (2), the Com-
232 

S 852 RS 

1 mission shall send each insurer participant 

2 a notice of initial determination requiring 

3 payments to the Fund, which shall be 

4 based on the information received from the 

5 participant in response to the Commis6 sion’s request for information. An insurer 

7 participant’s payments shall be payable 

8 over the schedule established in subsection 

9 (a)(3)(C), in annual amounts proportionate 

10 to the aggregate annual amount of pay11 ments for all insurer participants for the 

12 applicable year. 

13 (ii) PUBLIC NOTICE.—Not later than 

14 7 days after sending the notification of ini15 tial determination to insurer participants, 

16 the Commission shall publish in the Fed17 eral Register a notice listing the insurer 

18 participants that have been sent such noti19 fication, and the initial determination on 

20 the payment obligation of each identified 

21 participant. 

22 (B) NO RESPONSE; INCOMPLETE RE23 SPONSE.—If no response is received from an in24 surer participant, or if the response is incom25 plete, the initial determination requiring a pay-
233 

S 852 RS 

1 ment from the insurer participant shall be 

2 based on the best information available to the 

3 Commission. 

4 (4) COMMISSION REVIEW, REVISION, AND FI5 NALIZATION OF INITIAL PAYMENT DETERMINA6 TIONS.— 

7 (A) COMMENTS FROM INSURER PARTICI8 PANTS.—Not later than 30 days after receiving 

9 a notice of initial determination from the Com10 mission, an insurer participant may provide the 

11 Commission with additional information to sup12 port adjustments to the required payments to 

13 reflect severe financial hardship or exceptional 

14 circumstances, including the provision of an off15 set credit for an insurer participant for the 

16 amount of any asbestos-related payments it 

17 made or was legally obligated to make, includ18 ing payments released from an escrow, as the 

19 result of a bankruptcy judicially confirmed after 

20 May 22, 2003, but before the date of enactment 

21 of this Act. 

22 (B) ADDITIONAL PARTICIPANTS.—If, be23 fore the final determination of the Commission, 

24 the Commission receives information that an 

25 additional person may qualify as an insurer 
234 

S 852 RS 

1 participant, the Commission shall require such 

2 person to submit information necessary to de3 termine whether payments from that person 

4 should be required, in accordance with the re5 quirements of this subsection. 

6 (C) REVISION PROCEDURES.—The Com7 mission shall adopt procedures for revising ini8 tial payments based on information received 

9 under subparagraphs (A) and (B), including a 

10 provision requiring an offset credit for an in11 surer participant for the amount of any asbes12 tos-related payments it made or was legally ob13 ligated to make, including payments released 

14 from an escrow, as the result of a bankruptcy 

15 confirmed after May 22, 2003, but before the 

16 date of enactment of this Act. 

17 (5) EXAMINATIONS AND SUBPOENAS.— 

18 (A) EXAMINATIONS.—The Commission 

19 may conduct examinations of the books and 

20 records of insurer participants to determine the 

21 completeness and accuracy of information sub22 mitted, or required to be submitted, to the 

23 Commission for purposes of determining partic24 ipant payments. 
235 

S 852 RS 

1 (B) SUBPOENAS.—The Commission may 

2 request the Attorney General to subpoena per3 sons to compel testimony, records, and other in4 formation relevant to its responsibilities under 

5 this section. The Attorney General may enforce 

6 such subpoena in appropriate proceedings in 

7 the United States district court for the district 

8 in which the person to whom the subpoena was 

9 addressed resides, was served, or transacts 

10 business. 

11 (6) ESCROW PAYMENTS.—Without regard to an 

12 insurer participant’s payment obligation under this 

13 section, any escrow or similar account established 

14 before the date of enactment of this Act by an in15 surer participant in connection with an asbestos 

16 trust fund that has not been judicially confirmed by 

17 final order by the date of enactment of this Act shall 

18 be the property of the insurer participant and re19 turned to that insurer participant. 

20 (7) NOTICE TO INSURER PARTICIPANTS OF

21 FINAL PAYMENT DETERMINATIONS.—Not later than 

22 60 days after the notice of initial determination is 

23 sent to the insurer participants, the Commission 

24 shall send each insurer participant a notice of final 

25 determination. 
236 

S 852 RS 

1 (c) INSURER PARTICIPANTS VOLUNTARY ALLOCA2 TION AGREEMENT.— 

3 (1) IN GENERAL.—Not later than 30 days after 

4 the Commission proposes its rule establishing an al5 location methodology under subsection (a)(1), direct 

6 insurer participants licensed or domiciled in the 

7 United States, other direct insurer participants, re8 insurer participants licensed or domiciled in the 

9 United States, or other reinsurer participants, may 

10 submit an allocation agreement, approved by all of 

11 the participants in the applicable group, to the Com12 mission. 

13 (2) ALLOCATION AGREEMENT.—To the extent 

14 the participants in any such applicable group volun15 tarily agree upon an allocation arrangement, any 

16 such allocation agreement shall only govern the allo17 cation of payments within that group and shall not 

18 determine the aggregate amount due from that 

19 group. 

20 (3) CERTIFICATION.—The Commission shall de21 termine whether an allocation agreement submitted 

22 under subparagraph (A) meets the requirements of 

23 this subtitle and, if so, shall certify the agreement 

24 as establishing the allocation methodology governing 

25 the individual payment obligations of the partici-
237 

S 852 RS 

1 pants who are parties to the agreement. The author2 ity of the Commission under this subtitle shall, with 

3 respect to participants who are parties to a certified 

4 allocation agreement, terminate on the day after the 

5 Commission certifies such agreement. Under sub6 section (f), the Administrator shall assume responsi7 bility, if necessary, for calculating the individual 

8 payment obligations of participants who are parties 

9 to the certified agreement. 

10 (d) COMMISSION REPORT.— 

11 (1) RECIPIENTS.—Until the work of the Com12 mission has been completed and the Commission ter13 minated, the Commission shall submit an annual re14 port, containing the information described under 

15 paragraph (2), to— 

16 (A) the Committee on the Judiciary of the 

17 Senate; 

18 (B) the Committee on the Judiciary of the 

19 House of Representatives; and 

20 (C) the Administrator. 

21 (2) CONTENTS.—The report under paragraph 

22 (1) shall state the amount that each insurer partici23 pant is required to pay to the Fund, including the 

24 payment schedule for such payments. 

25 (e) INTERIM PAYMENTS.— 
238 

S 852 RS 

1 (1) AUTHORITY OF ADMINISTRATOR.—During 

2 the period between the date of enactment of this Act 

3 and the date when the Commission issues its final 

4 determinations of payments, the Administrator shall 

5 have the authority to require insurer participants to 

6 make interim payments to the Fund to assure ade7 quate funding by insurer participants during such 

8 period. 

9 (2) AMOUNT OF INTERIM PAYMENTS.—During 

10 any applicable year, the Administrator may require 

11 insurer participants to make aggregate interim pay12 ments not to exceed the annual aggregate amount 

13 specified in subsection (a)(3)(C). 

14 (3) ALLOCATION OF PAYMENTS.—Interim pay15 ments shall be allocated among individual insurer 

16 participants on an equitable basis as determined by 

17 the Administrator. All payments required under this 

18 subparagraph shall be credited against the partici19 pant’s ultimate payment obligation to the Fund es20 tablished by the Commission. If an interim payment 

21 exceeds the ultimate payment, the Fund shall pay 

22 interest on the amount of the overpayment at a rate 

23 determined by the Administrator. If the ultimate 

24 payment exceeds the interim payment, the partici25 pant shall pay interest on the amount of the under-
239 

S 852 RS 

1 payment at the same rate. Any participant may seek 

2 an exemption from or reduction in any payment re3 quired under this subsection under the financial 

4 hardship and exceptional circumstance standards es5 tablished in subsection (a)(3)(D). 

6 (4) APPEAL OF INTERIM PAYMENT DECI7 SIONS.—A decision by the Administrator to establish 

8 an interim payment obligation shall be considered 

9 final agency action and reviewable under section 

10 303, except that the reviewing court may not stay an 

11 interim payment during the pendency of the appeal. 

12 (e) INTERIM PAYMENTS.— 

13 (1) AMOUNT OF INTERIM PAYMENT.—Within 90 

14 days after the date of enactment of this Act, insurer 

15 participants shall make an aggregate payment to the 

16 Fund not to exceed 50 percent of the aggregate fund17 ing obligation specified under subsection (a)(3)(C) for 

18 year 1. 

19 (2) RESERVE INFORMATION.—Within 30 days 

20 after the date of enactment of this Act, each insurer 

21 participant shall submit to the Administrator a cer22 tified statement of its net held reserves for asbestos li23 abilities as of December 31, 2004. 

24 (3) ALLOCATION OF INTERIM PAYMENT.—The 

25 Administrator shall allocate the interim payment 
240 

S 852 RS 

1 among the individual insurer participants on an eq2 uitable basis using the net held asbestos reserve infor3 mation provided by insurer participants under sub4 section (a)(3)(B). Within 60 days after the date of en5 actment of this Act, the Administrator shall publish 

6 in the Federal Register the name of each insurer par7 ticipant, and the amount of the insurer participant’s 

8 allocated share of the interim payment. The use of net 

9 held asbestos reserves as the basis to determine an in10 terim allocation shall not be binding on the Adminis11 trator in the determination of an appropriate final 

12 allocation methodology under this section. All pay13 ments required under this paragraph shall be credited 

14 against the participant’s ultimate payment obligation 

15 to the Fund established by the Commission. If an in16 terim payment exceeds the ultimate payment, the 

17 Fund shall pay interest on the amount of the over18 payment at a rate determined by the Administrator. 

19 If the ultimate payment exceeds the interim payment, 

20 the participant shall pay interest on the amount of 

21 the underpayment at the same rate. Any participant 

22 may seek an exemption from or reduction in any 

23 payment required under this subsection under the fi24 nancial hardship and exceptional circumstance stand25 ards established under subsection (a)(3)(E). 
241 

S 852 RS 

1 (4) APPEAL OF INTERIM PAYMENT DECISIONS.— 

2 A decision by the Administrator to establish an in3 terim payment obligation shall be considered final 

4 agency action and reviewable under section 303, ex5 cept that the reviewing court may not stay an in6 terim payment during the pendency of the appeal. 

7 (f) TRANSFER OF AUTHORITY FROM THE COMMIS8 SION TO THE ADMINISTRATOR.— 

9 (1) IN GENERAL.—Upon termination of the 

10 Commission under section 215, the Administrator 

11 shall assume all the responsibilities and authority of 

12 the Commission, except that the Administrator shall 

13 not have the power to modify the allocation method14 ology established by the Commission or by certified 

15 agreement or to promulgate a rule establishing any 

16 such methodology. 

17 (2) FINANCIAL HARDSHIP AND EXCEPTIONAL

18 CIRCUMSTANCE ADJUSTMENTS.—Upon termination 

19 of the Commission under section 215, the Adminis20 trator shall have the authority, upon application by 

21 any insurer participant, to make adjustments to an22 nual payments upon the same grounds as provided 

23 in subsection (a)(3)(D). Adjustments granted under 

24 this subsection shall have a term not to exceed 3 

25 years. An insurer participant may renew its adjust-
242 

S 852 RS 

1 ment by demonstrating that it remains justified. 

2 Upon the grant of any adjustment, the Adminis3 trator shall increase the payments, consistent with 

4 subsection (a)(1)(B), required of all other insurer 

5 participants so that there is no reduction in the ag6 gregate payment required of all insurer participants 

7 for the applicable years. The increase in an insurer 

8 participant’s required payment shall be in proportion 

9 to such participant’s share of the aggregate payment 

10 obligation of all insurer participants. 

11 (3) CREDITS FOR SHORTFALL ASSESSMENTS.—If 

12 insurer participants are required during the first 5 

13 years of the life of the Fund to make up any shortfall 

14 in required insurer payments under subsection 

15 (a)(1)(B), then, beginning in year 6, the Adminis16 trator shall grant each insurer participant a credit 

17 against its annual required payments during the ap18 plicable years that in the aggregate equal the amount 

19 of shortfall assessments paid by such insurer partici20 pant during the first 5 years of the life of the Fund. 

21 The credit shall be prorated over the same number of 

22 years as the number of years during which the in23 surer participant paid a shortfall assessment. Insurer 

24 participants which did not pay all required payments 

25 to the Fund during the first 5 years of the life of the 
243 

S 852 RS 

1 Fund shall not be eligible for a credit. The Adminis2 trator shall not grant a credit for shortfall assess3 ments imposed under section 405(e). 

4 (3)(4) FINANCIAL SECURITY REQUIREMENTS.— 

5 Whenever an insurer participant’s A.M. Best’s 

6 claims payment rating or Standard and Poor’s fi7 nancial strength rating falls below A¥, and until 

8 such time as either the insurer participant’s A.M. 

9 Best’s Rating or Standard and Poor’s rating is 

10 equal to or greater than A¥, the Administrator 

11 shall have the authority to require that the partici12 pating insurer either— 

13 (A) pay the present value of its remaining 

14 Fund payments at a discount rate determined 

15 by the Administrator; or 

16 (B) provide an evergreen letter of credit or 

17 financial guarantee for future payments issued 

18 by an institution with an A.M. Best’s claims 

19 payment rating or Standard & Poor’s financial 

20 strength rating of at least A+. 

21 (g) ACCOUNTING TREATMENT.—Insurer participants’ 

22 payment obligations to the Fund shall be subject to dis23 counting under the applicable accounting guidelines for 

24 generally accepted accounting purposes and statutory ac25 counting purposes for each insurer participant. This sub-
244 

S 852 RS 

1 section shall in no way reduce the amount of monetary pay2 ments to the Fund by insurer participants as required 

3 under subsection (a). 

4 (g)(h) JUDICIAL REVIEW.—The Commission’s rule 

5 establishing an allocation methodology, its final deter6 minations of payment obligations and other final action 

7 shall be judicially reviewable as provided in title III. 

8 SEC. 213. POWERS OF ASBESTOS INSURERS COMMISSION. 

9 (a) RULEMAKING.—The Commission shall promul10 gate such rules and regulations as necessary to implement 

11 its authority under this Act, including regulations gov12 erning an allocation methodology. Such rules and regula13 tions shall be promulgated after providing interested par14 ties with the opportunity for notice and comment. 

15 (b) HEARINGS.—The Commission may hold such 

16 hearings, sit and act at such times and places, take such 

17 testimony, and receive such evidence as the Commission 

18 considers advisable to carry out this Act. The Commission 

19 shall also hold a hearing on any proposed regulation estab20 lishing an allocation methodology, before the Commis21 sion’s adoption of a final regulation. 

22 (c) INFORMATION FROM FEDERAL AND STATE

23 AGENCIES.—The Commission may secure directly from 

24 any Federal or State department or agency such informa25 tion as the Commission considers necessary to carry out 
245 

S 852 RS 

1 this Act. Upon request of the Chairman of the Commis2 sion, the head of such department or agency shall furnish 

3 such information to the Commission. 

4 (d) POSTAL SERVICES.—The Commission may use 

5 the United States mails in the same manner and under 

6 the same conditions as other departments and agencies of 

7 the Federal Government. 

8 (e) GIFTS.—The Commission may not accept, use, or 

9 dispose of gifts or donations of services or property. 

10 (f) EXPERT ADVICE.—In carrying out its responsibil11 ities, the Commission may enter into such contracts and 

12 agreements as the Commission determines necessary to 

13 obtain expert advice and analysis. 

14 SEC. 214. PERSONNEL MATTERS. 

15 (a) COMPENSATION OF MEMBERS.—Each member of 

16 the Commission shall be compensated at a rate equal to 

17 the daily equivalent of the annual rate of basic pay pre18 scribed for level IV of the Executive Schedule under sec19 tion 5315 of title 5, United States Code, for each day (in20 cluding travel time) during which such member is engaged 

21 in the performance of the duties of the Commission. 

22 (b) TRAVEL EXPENSES.—The members of the Com23 mission shall be allowed travel expenses, including per 

24 diem in lieu of subsistence, at rates authorized for employ25 ees of agencies under subchapter I of chapter 57 of title 
246 

S 852 RS 

1 5, United States Code, while away from their homes or 

2 regular places of business in the performance of services 

3 for the Commission. 

4 (c) STAFF.— 

5 (1) IN GENERAL.—The Chairman of the Com6 mission may, without regard to the civil service laws 

7 and regulations, appoint and terminate an executive 

8 director and such other additional personnel as may 

9 be necessary to enable the Commission to perform 

10 its duties. The employment of an executive director 

11 shall be subject to confirmation by the Commission. 

12 (2) COMPENSATION.—The Chairman of the 

13 Commission may fix the compensation of the execu14 tive director and other personnel without regard to 

15 chapter 51 and subchapter III of chapter 53 of title 

16 5, United States Code, relating to classification of 

17 positions and General Schedule pay rates, except 

18 that the rate of pay for the executive director and 

19 other personnel may not exceed the rate payable for 

20 level V of the Executive Schedule under section 5316 

21 of such title. 

22 (d) DETAIL OF GOVERNMENT EMPLOYEES.—Any 

23 Federal Government employee may be detailed to the 

24 Commission without reimbursement, and such detail shall 
247 

S 852 RS 

1 be without interruption or loss of civil service status or 

2 privilege. 

3 (e) PROCUREMENT OF TEMPORARY AND INTERMIT4 TENT SERVICES.—The Chairman of the Commission may 

5 procure temporary and intermittent services under section 

6 3109(b) of title 5, United States Code, at rates for individ7 uals which do not exceed the daily equivalent of the annual 

8 rate of basic pay prescribed for level V of the Executive 

9 Schedule under section 5316 of such title. 

10 SEC. 215. TERMINATION OF ASBESTOS INSURERS COMMIS11 SION. 

12 The Commission shall terminate 90 days after the 

13 last date on which the Commission makes a final deter14 mination of contribution under section 212(b) or 90 days 

15 after the last appeal of any final action by the Commission 

16 is exhausted, whichever occurs later. 

17 SEC. 216. EXPENSES AND COSTS OF COMMISSION. 

18 All expenses of the Commission shall be paid from 

19 the Fund. 

20 Subtitle C—Asbestos Injury Claims 

21 Resolution Fund 

22 SEC. 221. ESTABLISHMENT OF ASBESTOS INJURY CLAIMS 

23 RESOLUTION FUND. 

24 (a) ESTABLISHMENT.—There is established in the 

25 Office of Asbestos Disease Compensation the Asbestos In-
248 

S 852 RS 

1 jury Claims Resolution Fund, which shall be available to 

2 pay— 

3 (1) claims for awards for an eligible disease or 

4 condition determined under title I; 

5 (2) claims for reimbursement for medical moni6 toring determined under title I; 

7 (3) principal and interest on borrowings under 

8 subsection (b); 

9 (4) the remaining obligations to the asbestos 

10 trust of a debtor and the class action trust under 

11 section 405(f)(8); and 

12 (5) administrative expenses to carry out the 

13 provisions of this Act. 

14 (b) BORROWING AUTHORITY.— 

15 (1) IN GENERAL.—The Administrator is au16 thorized to borrow from time to time amounts as set 

17 forth in this subsection, for purposes of enhancing li18 quidity available to the Fund for carrying out the 

19 obligations of the Fund under this Act. The Admin20 istrator may authorize borrowing in such form, over 

21 such term, with such necessary disclosure to its 

22 lenders as will most efficiently enhance the Fund’s 

23 liquidity. 

24 (2) FEDERAL FINANCING BANK.—In addition to 

25 the general authority in paragraph (1), the Adminis-
249 

S 852 RS 

1 trator may borrow from the Federal Financing Bank 

2 in accordance with section 6 of the Federal Financ3 ing Bank Act of 1973 (12 U.S.C. 2285), as needed 

4 for performance of the Administrator’s duties under 

5 this Act for the first 5 years. 

6 (3) BORROWING CAPACITY.—The maximum 

7 amount that may be borrowed under this subsection 

8 at any given time is the amount that, taking into ac9 count all payment obligations related to all previous 

10 amounts borrowed in accordance with this sub11 section and all committed obligations of the Fund at 

12 the time of borrowing, can be repaid in full (with in13 terest) in a timely fashion from— 

14 (A) the available assets of the Fund as of 

15 the time of borrowing; and 

16 (B) all amounts expected to be paid by 

17 participants during the subsequent 10 years. 

18 (4) REPAYMENT OBLIGATIONS.—Repayment of 

19 monies borrowed by the Administrator under this 

20 subsection is limited solely to amounts available in 

21 the Asbestos Injury Claims Resolution Fund estab22 lished under this section. 

23 (4) REPAYMENT OBLIGATIONS.—Repayment of 

24 monies borrowed by the Administrator under this sub25 section shall be repaid in full by the Fund contribu-
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1 tors and is limited solely to amounts available, 

2 present or future, in the Fund. 

3 (c) LOCKBOX FOR SEVERE ASBESTOS-RELATED IN4 JURY CLAIMANTS.— 

5 (1) IN GENERAL.—Within the Fund, the Ad6 ministrator shall establish the following accounts: 

7 (A) A Mesothelioma Account, which shall 

8 be used solely to make payments to claimants 

9 eligible for an award under the criteria of Level 

10 IX. 

11 (B) A Lung Cancer Account, which shall 

12 be used solely to make payments to claimants 

13 eligible for an award under the criteria of Level 

14 VIII. 

15 (C) A Severe Asbestosis Account, which 

16 shall be used solely to make payments to claim17 ants eligible for an award under the criteria of 

18 Level V. 

19 (D) A Moderate Asbestosis Account, which 

20 shall be used solely to make payments to claim21 ants eligible for an award under the criteria of 

22 Level IV. 

23 (2) ALLOCATION.—The Administrator shall al24 locate to each of the 4 accounts established under 

25 paragraph (1) a portion of payments made to the 
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1 Fund adequate to compensate all anticipated claim2 ants for each account. Within 60 days after the date 

3 of enactment of this Act, and periodically during the 

4 life of the Fund, the Administrator shall determine 

5 an appropriate amount to allocate to each account 

6 after consulting appropriate epidemiological and sta7 tistical studies. 

8 (d) AUDIT AUTHORITY.— 

9 (1) IN GENERAL.—For the purpose of 

10 ascertaining the correctness of any information pro11 vided or payments made to the Fund, or deter12 mining whether a person who has not made a pay13 ment to the Fund was required to do so, or deter14 mining the liability of any person for a payment to 

15 the Fund, or collecting any such liability, or inquir16 ing into any offense connected with the administra17 tion or enforcement of this title, the Administrator 

18 is authorized— 

19 (A) to examine any books, papers, records, 

20 or other data which may be relevant or material 

21 to such inquiry; 

22 (B) to summon the person liable for a pay23 ment under this title, or officer or employee of 

24 such person, or any person having possession, 

25 custody, or care of books of account containing 
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1 entries relating to the business of the person 

2 liable or any other person the Administrator 

3 may deem proper, to appear before the Admin4 istrator at a time and place named in the sum5 mons and to produce such books, papers, 

6 records, or other data, and to give such testi7 mony, under oath, as may be relevant or mate8 rial to such inquiry; and 

9 (C) to take such testimony of the person 

10 concerned, under oath, as may be relevant or 

11 material to such inquiry. 

12 (2) FALSE, FRAUDULENT, OR FICTITIOUS

13 STATEMENTS OR PRACTICES.—If the Administrator 

14 determines that materially false, fraudulent, or ficti15 tious statements or practices have been submitted or 

16 engaged in by persons submitting information to the 

17 Administrator or to the Asbestos Insurers Commis18 sion or any other person who provides evidence in 

19 support of such submissions for purposes of deter20 mining payment obligations under this Act, the Ad21 ministrator may impose a civil penalty not to exceed 

22 $10,000 on any person found to have submitted or 

23 engaged in a materially false, fraudulent, or ficti24 tious statement or practice under this Act. The Ad-
253 

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1 ministrator shall promulgate appropriate regulations 

2 to implement this paragraph. 

3 (e) IDENTITY OF CERTAIN DEFENDANT PARTICI4 PANTS; TRANSPARENCY.— 

5 (1) SUBMISSION OF INFORMATION.—Not later 

6 than 60 days after the date of enactment of this 

7 Act, any person who, acting in good faith, has 

8 knowledge that such person or such person’s affili9 ated group has prior asbestos expenditures of 

10 $1,000,000 or greater, shall submit to the Adminis11 trator— 

12 (A) either the name of such person, or 

13 such person’s ultimate parent; and 

14 (B) the likely tier to which such person or 

15 affiliated group may be assigned under this Act. 

16 (2) PUBLICATION.—Not later than 20 days 

17 after the end of the 60-day period referred to in 

18 paragraph (1), the Administrator or Interim Admin19 istrator, if the Administrator is not yet appointed, 

20 shall publish in the Federal Register a list of sub21 missions required by this subsection, including the 

22 name of such persons or ultimate parents and the 

23 likely tier to which such persons or affiliated groups 

24 may be assigned. After publication of such list, any 

25 person who, acting in good faith, has knowledge that 
254 

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1 any other person has prior asbestos expenditures of 

2 $1,000,000 or greater may submit to the Adminis3 trator or Interim Administrator information on the 

4 identity of that person and the person’s prior asbes5 tos expenditures. 

6 (f) NO PRIVATE RIGHT OF ACTION.—Except as pro7 vided in sections 203(b)(2)(D)(ii) and 204(f)(3), there 

8 shall be no private right of action under any Federal or 

9 State law against any participant based on a claim of com10 pliance or noncompliance with this Act or the involvement 

11 of any participant in the enactment of this Act. 

12 SEC. 222. MANAGEMENT OF THE FUND. 

13 (a) IN GENERAL.—Amounts in the Fund shall be 

14 held for the exclusive purpose of providing benefits to as15 bestos claimants and their beneficiaries, including those 

16 provided in subsection (c) and to otherwise defray the rea17 sonable expenses of administering the Fund. 

18 (b) INVESTMENTS.— 

19 (1) IN GENERAL.—Amounts in the Fund shall 

20 be administered and invested with the care, skill, 

21 prudence, and diligence, under the circumstances 

22 prevailing at the time of such investment, that a 

23 prudent person acting in a like capacity and manner 

24 would use. 
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1 (2) STRATEGY.—The Administrator shall invest 

2 amounts in the Fund in a manner that enables the 

3 Fund to make current and future distributions to or 

4 for the benefit of asbestos claimants. In pursuing an 

5 investment strategy under this subparagraph, the 

6 Administrator shall consider, to the extent relevant 

7 to an investment decision or action— 

8 (A) the size of the Fund; 

9 (B) the nature and estimated duration of 

10 the Fund; 

11 (C) the liquidity and distribution require12 ments of the Fund; 

13 (D) general economic conditions at the 

14 time of the investment; 

15 (E) the possible effect of inflation or defla16 tion on Fund assets; 

17 (F) the role that each investment or course 

18 of action plays with respect to the overall assets 

19 of the Fund; 

20 (G) the expected amount to be earned (in21 cluding both income and appreciation of cap22 ital) through investment of amounts in the 

23 Fund; and 
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1 (H) the needs of asbestos claimants for 

2 current and future distributions authorized 

3 under this Act. 

4 (c) MESOTHELIOMA RESEARCH AND TREATMENT

5 CENTERS.— 

6 (1) IN GENERAL.—The Administrator shall pro7 vide $1,000,000 from the Fund for each of fiscal 

8 years 2005 through 2009 for each of up to 10 meso9 thelioma disease research and treatment centers. 

10 (2) REQUIREMENTS.—The Centers shall— 

11 (A) be chosen by the Director of the Na12 tional Institutes of Health; 

13 (B) be chosen through competitive peer re14 view; 

15 (C) be geographically distributed through16 out the United States with special consideration 

17 given to areas of high incidence of mesothe18 lioma disease; 

19 (D) be closely associated with Department 

20 of Veterans Affairs medical centers to provide 

21 research benefits and care to veterans who have 

22 suffered excessively from mesothelioma; 

23 (E) be engaged in research to provide 

24 mechanisms for detection and prevention of 
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1 mesothelioma, particularly in the areas of pain 

2 management and cures; 

3 (F) be engaged in public education about 

4 mesothelioma and prevention, screening, and 

5 treatment; 

6 (G) be participants in the National Meso7 thelioma Registry; and 

8 (H) be coordinated in their research and 

9 treatment efforts with other Centers and insti10 tutions involved in exemplary mesothelioma re11 search. 

12 (d)(c) BANKRUPTCY TRUST GUARANTEE.— 

13 (1) IN GENERAL.—Notwithstanding any other 

14 provision of this Act, the Administrator shall have 

15 the authority to impose a pro rata surcharge on all 

16 participants under this subsection to ensure the li17 quidity of the Fund, if— 

18 (A) the declared assets from 1 or more 

19 bankruptcy trusts established under a plan of 

20 reorganization confirmed and substantially con21 summated on or before July 31, 2004, are not 

22 available to the Fund because a final judgment 

23 that has been entered by a court and is no 

24 longer subject to any appeal or review has en25 joined the transfer of assets required under sec-
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1 tion 524(j)(2) of title 11, United States Code 

2 (as amended by section 402(f) of this Act); and 

3 (B) borrowing is insufficient to assure the 

4 Fund’s ability to meet its obligations under this 

5 Act such that the required borrowed amount is 

6 likely to increase the risk of termination of this 

7 Act under section 405 based on reasonable 

8 claims projections. 

9 (2) ALLOCATION.—Any surcharge imposed 

10 under this subsection shall be imposed over a period 

11 of 5 years on a pro rata basis upon all participants, 

12 in accordance with each participant’s relative annual 

13 liability under this subtitle and subtitle B for those 

14 5 years. in accordance with the relative aggregate 

15 funding obligations under sections 202(a)(2) and 

16 212(a)(2)(A). 

17 (3) CERTIFICATION.— 

18 (A) IN GENERAL.—Before imposing a sur19 charge under this subsection, the Administrator 

20 shall publish a notice in the Federal Register 

21 and provide in such notice for a public comment 

22 period of 30 days. 

23 (B) CONTENTS OF NOTICE.—The notice 

24 required under subparagraph (A) shall in25 clude— 
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1 (i) information explaining the cir2 cumstances that make a surcharge nec3 essary and a certification that the require4 ments under paragraph (1) are met; 

5 (ii) the amount of the declared assets 

6 from any trust established under a plan of 

7 reorganization confirmed and substantially 

8 consummated on or before July 31, 2004, 

9 that was not made, or is no longer, avail10 able to the Fund; 

11 (iii) the total aggregate amount of the 

12 necessary surcharge; and 

13 (iv) the surcharge amount for each 

14 tier and subtier of defendant participants 

15 and for each insurer participant. 

16 (C) FINAL NOTICE.—The Administrator 

17 shall publish a final notice in the Federal Reg18 ister and provide each participant with written 

19 notice of that participant’s schedule of pay20 ments under this subsection. In no event shall 

21 any required surcharge under this subsection be 

22 due before 60 days after the Administrator 

23 publishes the final notice in the Federal Reg24 ister and provides each participant with written 

25 notice of its schedule of payments. 
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1 (4) MAXIMUM AMOUNT.—In no event shall the 

2 total aggregate surcharge imposed by the Adminis3 trator exceed the lesser of— 

4 (A) the total aggregate amount of the de5 clared assets of the trusts established under a 

6 plan of reorganization confirmed and substan7 tially consummated prior to July 31, 2004, that 

8 are no longer available to the Fund; or 

9 (B) $4,000,000,000. 

10 (5) DECLARED ASSETS.— 

11 (A) IN GENERAL.—In this subsection, the 

12 term ‘‘declared assets’’ means— 

13 (i) the amount of assets transferred 

14 by any trust established under a plan of 

15 reorganization confirmed and substantially 

16 consummated on or before July 31, 2004, 

17 to the Fund that is required to be returned 

18 to that trust under the final judgment de19 scribed in paragraph (1)(A); or 

20 (ii) if no assets were transferred by 

21 the trust to the Fund, the amount of as22 sets the Administrator determines would 

23 have been available for transfer to the 

24 Fund from that trust under section 402(f). 
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1 (B) DETERMINATION.—In making a deter2 mination under subparagraph (A)(ii), the Ad3 ministrator may rely on any information rea4 sonably available, and may request, and use 

5 subpoena authority of the Administrator if nec6 essary to obtain, relevant information from any 

7 such trust or its trustees. 

8 (e)(d) BANKRUPTCY TRUST CREDITS.— 

9 (1) IN GENERAL.—Notwithstanding any other 

10 provision of this Act, but subject to paragraph (2) 

11 of this subsection, the Administrator shall provide a 

12 credit toward the aggregate payment obligations 

13 under sections 202(a)(2) and 212(a)(2)(A) for as14 sets received by the Fund from any bankruptcy trust 

15 established under a plan of reorganization confirmed 

16 and substantially consummated after July 31, 2004. 

17 (2) ALLOCATION OF CREDITS.—The Adminis18 trator shall allocate, for each such bankruptcy trust, 

19 the credits for such assets between the defendant 

20 and insurer aggregate payment obligations as fol21 lows: 

22 (A) DEFENDANT PARTICIPANTS.—The ag23 gregate amount that all persons other than in24 surers contributing to the bankruptcy trust 

25 would have been required to pay as Tier I de-
262 

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1 fendants under section 203(b) if the plan of re2 organization under which the bankruptcy trust 

3 was established had not been confirmed and 

4 substantially consummated and the proceeding 

5 under chapter 11 of title 11, United States 

6 Code, that resulted in the establishment of the 

7 bankruptcy trust had remained pending as of 

8 the date of enactment of this Act. 

9 (B) INSURER PARTICIPANTS.—The aggre10 gate amount of all credits to which insurers are 

11 entitled to under section 202(c)(4)(A) of the 

12 Act. 

13 SEC. 223. ENFORCEMENT OF PAYMENT OBLIGATIONS. 

14 (a) DEFAULT.—If any participant fails to make any 

15 payment in the amount of and according to the schedule 

16 under this Act or as prescribed by the Administrator, after 

17 demand and a 30-day opportunity to cure the default, 

18 there shall be a lien in favor of the United States for the 

19 amount of the delinquent payment (including interest) 

20 upon all property and rights to property, whether real or 

21 personal, belonging to such participant. 

22 (b) BANKRUPTCY.—In the case of a bankruptcy or 

23 insolvency proceeding, the lien imposed under subsection 

24 (a) shall be treated in the same manner as a lien for taxes 

25 due and owing to the United States for purposes of the 
263 

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1 provisions of title 11, United States Code, or section 

2 3713(a) of title 31, United States Code. The United 

3 States Bankruptcy Court shall have jurisdiction over any 

4 issue or controversy regarding lien priority and lien perfec5 tion arising in a bankruptcy case due to a lien imposed 

6 under subsection (a). 

7 (c) CIVIL ACTION.— 

8 (1) IN GENERAL.—In any case in which there 

9 has been a refusal or failure to pay any liability im10 posed under this Act, the Administrator may bring 

11 a civil action in the United States District Court for 

12 the District of Columbia, any appropriate United 

13 States District Court, or any other appropriate law14 suit or proceeding outside of the United States— 

15 (A) to enforce the liability and any lien of 

16 the United States imposed under this section; 

17 (B) to subject any property of the partici18 pant, including any property in which the par19 ticipant has any right, title, or interest to the 

20 payment of such liability; or 

21 (C) for temporary, preliminary, or perma22 nent relief. 

23 (2) ADDITIONAL PENALTIES.—In any action 

24 under paragraph (1) in which the refusal or failure 
264 

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1 to pay was willful, the Administrator may seek re2 covery— 

3 (A) of punitive damages; 

4 (B) of the costs of any civil action under 

5 this subsection, including reasonable fees in6 curred for collection, expert witnesses, and at7 torney’s fees; and 

8 (C) in addition to any other penalty, of a 

9 fine equal to the total amount of the liability 

10 that has not been collected. 

11 (d) ENFORCEMENT AUTHORITY AS TO INSURER PAR12 TICIPANTS.— 

13 (1) IN GENERAL.—In addition to or in lieu of 

14 the enforcement remedies described in subsection 

15 (c), the Administrator may seek to recover amounts 

16 in satisfaction of a payment not timely paid by an 

17 insurer participant under the procedures under this 

18 subsection. 

19 (2) SUBROGATION.—To the extent required to 

20 establish personal jurisdiction over nonpaying in21 surer participants, the Administrator shall be 

22 deemed to be subrogated to the contractual rights of 

23 participants to seek recovery from nonpaying insur24 ing participants that are domiciled outside the 

25 United States under the policies of liability insur-
265 

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1 ance or contracts of liability reinsurance or 

2 retrocessional reinsurance applicable to asbestos 

3 claims, and the Administrator may bring an action 

4 or an arbitration against the nonpaying insurer par5 ticipants under the provisions of such policies and 

6 contracts, provided that— 

7 (A) any amounts collected under this sub8 section shall not increase the amount of deemed 

9 erosion allocated to any policy or contract under 

10 section 404, or otherwise reduce coverage avail11 able to a participant; and 

12 (B) subrogation under this subsection shall 

13 have no effect on the validity of the insurance 

14 policies or reinsurance, and any contrary State 

15 law is expressly preempted. 

16 (3) RECOVERABILITY OF CONTRIBUTION.—For 

17 purposes of this subsection— 

18 (A) all contributions to the Fund required 

19 of a participant shall be deemed to be sums le20 gally required to be paid for bodily injury re21 sulting from exposure to asbestos; 

22 (B) all contributions to the Fund required 

23 of any participant shall be deemed to be a sin24 gle loss arising from a single occurrence under 
266 

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1 each contract to which the Administrator is 

2 subrogated; and 

3 (C) with respect to reinsurance contracts, 

4 all contributions to the Fund required of a par5 ticipant shall be deemed to be payments to a 

6 single claimant for a single loss. 

7 (4) NO CREDIT OR OFFSET.—In any action 

8 brought under this subsection, the nonpaying insurer 

9 or reinsurer shall be entitled to no credit or offset 

10 for amounts collectible or potentially collectible from 

11 any participant nor shall such defaulting participant 

12 have any right to collect any sums payable under 

13 this section from any participant. 

14 (5) COOPERATION.—Insureds and cedents shall 

15 cooperate with the Administrator’s reasonable re16 quests for assistance in any such proceeding. The 

17 positions taken or statements made by the Adminis18 trator in any such proceeding shall not be binding 

19 on or attributed to the insureds or cedents in any 

20 other proceeding. The outcome of such a proceeding 

21 shall not have a preclusive effect on the insureds or 

22 cedents in any other proceeding and shall not be ad23 missible against any subrogee under this section. 

24 The Administrator shall have the authority to settle 
267 

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1 or compromise any claims against a nonpaying in2 surer participant under this subsection. 

3 (e) BAR ON UNITED STATES BUSINESS.—If any di4 rect insurer or reinsurer refuses to furnish any informa5 tion requested by or to pay any contribution required by 

6 this Act, then, in addition to any other penalties imposed 

7 by this Act, the Administrator may shall issue an order 

8 barring such entity and its affiliates from insuring risks 

9 located within the United States or otherwise doing busi10 ness within the United States unless and until it complies. 

11 If any direct insurer or reinsurer refuses to furnish any 

12 information requested by the Administrator, the Adminis13 trator may issue an order barring such entity and its affili14 ates from insuring risks located within the United States 

15 or otherwise doing business within the United States unless 

16 and until it complies. Insurer participants or their affili17 ates seeking to obtain a license from any State to write 

18 any type of insurance shall be barred from obtaining any 

19 such license until payment of all contributions required as 

20 of the date of license application. 

21 (f) CREDIT FOR REINSURANCE.—If the Adminis22 trator determines that an insurer participant that is a re23 insurer is in default in paying any required contribution 

24 or otherwise not in compliance with this Act, the Adminis25 trator may issue an order barring any direct insurer par-
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1 ticipant from receiving credit for reinsurance purchased 

2 from the defaulting reinsurer after the date of the Adminis3 trator’s determination of default. Any State law governing 

4 credit for reinsurance to the contrary is preempted. 

5 (g) DEFENSE LIMITATION.—In any proceeding under 

6 this section, the participant shall be barred from bringing 

7 any challenge to any determination of the Administrator 

8 or the Asbestos Insurers Commission regarding its liability 

9 under this Act, or to the constitutionality of this Act or 

10 any provision thereof, if such challenge could have been 

11 made during the review provided under section 204(i)(10), 

12 or in a judicial review proceeding under section 303. 

13 (h) DEPOSIT OF FUNDS.— 

14 (1) IN GENERAL.—Any funds collected under 

15 subsection (c)(2) (A) or (C) shall be— 

16 (A) deposited in the Fund; and 

17 (B) used only to pay— 

18 (i) claims for awards for an eligible 

19 disease or condition determined under title 

20 I; or 

21 (ii) claims for reimbursement for med22 ical monitoring determined under title I. 

23 (2) NO EFFECT ON OTHER LIABILITIES.—The 

24 imposition of a fine under subsection (c)(2)(C) shall 

25 have no effect on— 
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1 (A) the assessment of contributions under 

2 subtitles A and B; or 

3 (B) any other provision of this Act. 

4 (i) PROPERTY OF THE ESTATE.—Section 541(b) of 

5 title 11, United States Code, is amended— 

6 (1) in paragraph (4)(B)(ii), by striking ‘‘or’’ at 

7 the end; 

8 (2) in paragraph (5), by striking ‘‘prohibition.’’ 

9 and inserting ‘‘prohibition; or’’; and 

10 (3) by inserting after paragraph (5) and before 

11 the last undesignated sentence the following: 

12 ‘‘(6) the value of any pending claim against or 

13 the amount of an award granted from the Asbestos 

14 Injury Claims Resolution Fund established under 

15 the Fairness in Asbestos Injury Resolution Act of 

16 2005.’’. 

17 (j) PROPOSED TRANSACTIONS.— 

18 (1) NOTICE OF PROPOSED TRANSACTION.—Any 

19 participant that has taken any action to effectuate a 

20 proposed transaction or a proposed series of trans21 actions under which a significant portion of such 

22 participant’s assets, properties or business will, if 

23 consummated as proposed, be, directly or indirectly, 

24 transferred by any means (including, without limita25 tion, by sale, dividend, contribution to a subsidiary 
270 

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1 or split-off) to 1 or more persons other than the par2 ticipant shall provide written notice to the Adminis3 trator of such proposed transaction (or proposed se4 ries of transactions). Upon the request of such partici5 pant, and for so long as the participant shall not 

6 publicly disclose the transaction or series of trans7 actions and the Administrator shall not commence 

8 any action under paragraph (6), the Administrator 

9 shall treat any such notice as confidential commercial 

10 information under section 552 of title 5, United 

11 States Code. 

12 (2) TIMING OF NOTICE AND RELATED ACTIONS.— 

13 (A) IN GENERAL.—Any notice that a par14 ticipant is required to give under paragraph (1) 

15 shall be given not later than 30 days before the 

16 date of consummation of the proposed trans17 action or the first transaction to occur in a pro18 posed series of transactions. 

19 (B) OTHER NOTIFICATIONS.— 

20 (i) IN GENERAL.—Not later than the 

21 date in any year by which a participant is 

22 required to make its contribution to the 

23 Fund, the participant shall deliver to the 

24 Administrator a written certification stat25 ing that— 
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1 (I) the participant has complied 

2 during the period since the last such 

3 certification or the date of enactment 

4 of this Act with the notice requirements 

5 set forth in this subsection; or 

6 (II) the participant was not re7 quired to provide any notice under this 

8 subsection during such period. 

9 (ii) SUMMARY.—The Administrator 

10 shall include in the annual report required 

11 to be submitted to Congress under section 

12 405 a summary of all such notices (after re13 moving all confidential identifying infor14 mation) received during the most recent fis15 cal year. 

16 (C) NOTICE COMPLETION.—The Adminis17 trator shall not consider any notice given under 

18 paragraph (1) as given until such time as the 

19 Administrator receives substantially all the in20 formation required by this subsection. 

21 (3) CONTENTS OF NOTICE.— 

22 (A) IN GENERAL.—The Administrator shall 

23 determine by rule or regulation the information 

24 to be included in the notice required under this 

25 subsection, which shall include such information 
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1 as may be necessary to enable the Administrator 

2 to determine whether— 

3 (i) the person or persons to whom the 

4 assets, properties or business are being 

5 transferred in the proposed transaction (or 

6 proposed series of transactions) should be 

7 considered to be the successor in interest of 

8 the participant for purposes of this Act, or 

9 (ii) the proposed transaction (or pro10 posed series of transactions) would, if con11 summated, be subject to avoidance by a 

12 trustee under section 544(b) or 548 of title 

13 11, United States Code, as if, but whether 

14 or not, the participant is subject to a case 

15 under title 11, United States Code. 

16 (B) STATEMENTS.—The notice shall also in17 clude— 

18 (i) a statement by the participant as to 

19 whether it believes any person will or has 

20 become a successor in interest to the partici21 pant for purposes of this Act and, if so, the 

22 identity of that person; and 

23 (ii) a statement by the participant as 

24 to whether that person has acknowledged 
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1 that it will or has become a successor in in2 terest for purposes of this Act. 

3 (4) DEFINITION.—In this subsection, the term 

4 ‘‘significant portion of the assets, properties or busi5 ness of a participant’’ means assets (including, with6 out limitation, tangible or intangible assets, securities 

7 and cash), properties or business of such participant 

8 (or its affiliated group, to the extent that the partici9 pant has elected to be part of an affiliated group 

10 under section 204(f)) that, together with any other 

11 asset, property or business transferred by such partic12 ipant in any of the previous completed 5 fiscal years 

13 of such participant (or, as appropriate, its affiliated 

14 group), and as determined in accordance with United 

15 States generally accepted accounting principles as in 

16 effect from time to time— 

17 (A) generated at least 40 percent of the reve18 nues of such participant (or its affiliated group); 

19 (B) constituted at least 40 percent of the as20 sets of such participant (or its affiliated group); 

21 (C) generated at least 40 percent of the op22 erating cash flows of such participant (or its af23 filiated group); or 
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1 (D) generated at least 40 percent of the net 

2 income or loss of such participant (or its affili3 ated group), 

4 as measured during any of such 5 previous fiscal 

5 years. 

6 (5) CONSUMMATION OF TRANSACTION.—Any pro7 posed transaction (or proposed series of transactions) 

8 with respect to which a participant is required to 

9 provide notice under paragraph (1) may not be con10 summated until at least 30 days after delivery to the 

11 Administrator of such notice, unless the Adminis12 trator shall earlier terminate the notice period. The 

13 Administrator shall endeavor whenever possible to ter14 minate a notice period at the earliest practicable 

15 time. 

16 (6) RIGHT OF ACTION.— 

17 (A) IN GENERAL.—Notwithstanding section 

18 221(f), if the Administrator or any participant 

19 believes that a participant proposes to engage or 

20 has engaged, directly or indirectly, in, or is the 

21 subject of, a transaction (or series of trans22 actions)— 

23 (i) involving a person or persons who, 

24 as a result of such transaction (or series of 

25 transactions), may have or may become the 
275 

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1 successor in interest or successors in interest 

2 of such participant, where the status or po3 tential status as a successor in interest has 

4 not been stated and acknowledged by the 

5 participant and such person; or 

6 (ii) that may be subject to avoidance 

7 by a trustee under section 544(b) or 548 of 

8 title 11, United States Code, as if, but 

9 whether or not, the participant is a subject 

10 to a case under title 11, United States Code, 

11 then the Administrator or such participant may, 

12 as a deemed creditor under applicable law, bring 

13 a civil action in an appropriate forum against 

14 the participant or any other person who is either 

15 a party to the transaction (or series of trans16 actions) or the recipient of any asset, property or 

17 business of the participant. 

18 (B) RELIEF ALLOWED.—In any action com19 menced under this subsection, the Administrator 

20 or a participant, as applicable, may seek— 

21 (i) with respect to a transaction (or se22 ries of transactions) referenced in clause (i) 

23 of subparagraph (A), a declaratory judg24 ment regarding whether such person will or 
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1 has become the successor in interest of such 

2 participant; or 

3 (ii) with respect to a transaction (or 

4 series of transactions) referenced in clause 

5 (ii) of subparagraph (A)— 

6 (I) a temporary restraining order 

7 or a preliminary or permanent injunc8 tion against such transaction (or series 

9 of transactions); or 

10 (II) such other relief regarding 

11 such transaction (or series of trans12 actions) as the court determines to be 

13 necessary to ensure that performance of 

14 a participant’s payment obligations 

15 under this Act is not materially im16 paired by reason of such transaction 

17 (or series of transactions). 

18 (C) APPLICABILITY.—If the Administrator 

19 or a participant wishes to challenge a statement 

20 made by a participant that a person will not or 

21 has not become a successor in interest for pur22 poses of this Act, then this paragraph shall be the 

23 exclusive means by which the determination of 

24 whether such person will or has become a suc25 cessor in interest of the participant shall be 
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1 made. This paragraph shall not preempt any 

2 other rights of any person under applicable Fed3 eral or State law. 

4 (D) VENUE.—Any action under this para5 graph shall be brought in any appropriate 

6 United States district court or, to the extent nec7 essary to obtain complete relief, any other appro8 priate forum outside of the United States. 

9 (7) RULES AND REGULATIONS.—The Adminis10 trator may promulgate regulations to effectuate the 

11 intent of this subsection, including regulations relat12 ing to the form, timing and content of notices. 

13 SEC. 224. INTEREST ON UNDERPAYMENT OR NONPAYMENT. 

14 If any amount of payment obligation under this title 

15 is not paid on or before the last date prescribed for pay16 ment, the liable party shall pay interest on such amount 

17 at the Federal short-term rate determined under section 

18 6621(b) of the Internal Revenue Code of 1986, plus 5 per19 centage points, for the period from such last date to the 

20 date paid. 

21 SEC. 225. EDUCATION, CONSULTATION, SCREENING, AND 

22 MONITORING. 

23 (a) IN GENERAL.—The Administrator shall establish 

24 a program for the education, consultation, medical screen-
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1 ing, and medical monitoring of persons with exposure to 

2 asbestos. The program shall be funded by the Fund. 

3 (b) OUTREACH AND EDUCATION.— 

4 (1) IN GENERAL.—Not later than 1 year after 

5 the date of enactment of this Act, the Administrator 

6 shall establish an outreach and education program, 

7 including a website designed to provide information 

8 about asbestos-related medical conditions to mem9 bers of populations at risk of developing such condi10 tions. 

11 (2) INFORMATION.—The information provided 

12 under paragraph (1) shall include information 

13 about— 

14 (A) the signs and symptoms of asbestos-re15 lated medical conditions; 

16 (B) the value of appropriate medical 

17 screening programs; and 

18 (C) actions that the individuals can take to 

19 reduce their future health risks related to as20 bestos exposure. 

21 (3) CONTRACTS.—Preference in any contract 

22 under this subsection shall be given to providers that 

23 are existing nonprofit organizations with a history 

24 and experience of providing occupational health out-
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1 reach and educational programs for individuals ex2 posed to asbestos. 

3 (c) MEDICAL SCREENING PROGRAM.— 

4 (1) ESTABLISHMENT OF PROGRAM.—Not soon5 er than 18 months or later than 24 months after the 

6 Administrator certifies that the Fund is fully oper7 ational and processing claims at a reasonable rate, 

8 the Administrator shall adopt guidelines establishing 

9 a medical screening program for individuals at high 

10 risk of asbestos-related disease resulting from an as11 bestos-related disease. In promulgating such guide12 lines, the Administrator shall consider the views of 

13 the Advisory Committee on Asbestos Disease Com14 pensation, the Medical Advisory Committee, and the 

15 public. 

16 (2) ELIGIBILITY CRITERIA.— 

17 (A) IN GENERAL.—The guidelines promul18 gated under this subsection shall establish cri19 teria for participation in the medical screening 

20 program. 

21 (B) CONSIDERATIONS.—In promulgating 

22 eligibility criteria the Administrator shall take 

23 into consideration all factors relevant to the in24 dividual’s effective cumulative exposure to as25 bestos, including— 
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1 (i) any industry in which the indi2 vidual worked; 

3 (ii) the individual’s occupation and 

4 work setting; 

5 (iii) the historical period in which ex6 posure took place; 

7 (iv) the duration of the exposure; 

8 (v) the intensity and duration of non9 occupational exposures; and 

10 (vi) the intensity and duration of ex11 posure to risk levels of naturally occurring 

12 asbestos as defined by the Environmental 

13 Protection Agency; and 

14 (vi)(vii) any other factors that the 

15 Administrator determines relevant. 

16 (3) PROTOCOLS.—The guidelines developed 

17 under this subsection shall establish protocols for 

18 medical screening, which shall include— 

19 (A) administration of a health evaluation 

20 and work history questionnaire; 

21 (B) an evaluation of smoking history; 

22 (C) a physical examination by a qualified 

23 physician with a doctor-patient relationship 

24 with the individual; 
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1 (D) a chest x-ray read by a certified B2 reader as defined under section 121(a)(4); and 

3 (E) pulmonary function testing as defined 

4 under section 121(a)(13). 

5 (4) FREQUENCY.—The Administrator shall es6 tablish the frequency with which medical screening 

7 shall be provided or be made available to eligible in8 dividuals, which shall be not less than every 5 years. 

9 (5) PROVISION OF SERVICES.—The Adminis10 trator shall provide medical screening to eligible in11 dividuals directly or by contract with another agency 

12 of the Federal Government, with State or local gov13 ernments, or with private providers of medical serv14 ices. The Administrator shall establish strict quali15 fications for the providers of such services, and shall 

16 periodically audit the providers of services under this 

17 subsection, to ensure their integrity, high degree of 

18 competence, and compliance with all applicable tech19 nical and professional standards. No provider of 

20 medical screening services may have earned more 

21 than 15 percent of their income from the provision 

22 of services of any kind in connection with asbestos 

23 litigation in any of the 3 years preceding the date 

24 of enactment of this Act. All contracts with pro25 viders of medical screening services under this sub-
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1 section shall contain provisions allowing the Admin2 istrator to terminate for reimbursement of screening 

3 services at a reasonable rate and termination of such 

4 contracts for cause if the Administrator determines 

5 that the service provider fails to meet the qualifica6 tions established under this subsection. 

7 (6) LIMITATION OF COMPENSATION FOR SERV8 ICES.—The compensation required to be paid to a 

9 provider of medical screening services for such serv10 ices furnished to an eligible individual shall be lim11 ited to the amount that would be reimbursed at the 

12 time of the furnishing of such services under title 

13 XVIII of the Social Security Act (42 U.S.C. 1395 et 

14 seq.) for similar services if— 

15 (A) the individual were entitled to benefits 

16 under part A of such title and enrolled under 

17 part B of such title; and 

18 (B) such services are covered under title 

19 XVIII of the Social Security Act (42 U.S.C. 

20 1395 et seq.). 

21 (7) FUNDING; PERIODIC REVIEW.— 

22 (A) FUNDING.—The Administrator shall 

23 make such funds available from the Fund to 

24 implement this section, with a minimum of 

25 $20,000,000 but not more than $30,000,000 
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1 each year in each of the 5 years following the 

2 effective date of the medical screening program. 

3 Notwithstanding the preceding sentence, the 

4 Administrator shall suspend the operation of 

5 the program or reduce its funding level if nec6 essary to preserve the solvency of the Fund and 

7 to prevent the sunset of the overall program 

8 under section 405(f). 

9 (B) REVIEW.—The Administrator may re10 duce the amount of funding below $20,000,000 

11 each year if the program is fully implemented. 

12 The Administrator’s first annual report under 

13 section 405 following the close of the 4th year 

14 of operation of the medical screening program 

15 shall include an analysis of the usage of the 

16 program, its cost and effectiveness, its medical 

17 value, and the need to continue that program 

18 for an additional 5-year period. The Adminis19 trator shall also recommend to Congress any 

20 improvements that may be required to make the 

21 program more effective, efficient, and economi22 cal, and shall recommend a funding level for the 

23 program for the 5 years following the period of 

24 initial funding referred to under subparagraph 

25 (A). 
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1 (d) LIMITATION.—In no event shall the total amount 

2 allocated to the medical screening program established 

3 under this subsection over the lifetime of the Fund exceed 

4 $600,000,000. 

5 (e) MEDICAL MONITORING PROGRAM AND PROTO6 COLS.— 

7 (1) IN GENERAL.—The Administrator shall es8 tablish procedures for a medical monitoring program 

9 for persons exposed to asbestos who have been ap10 proved for level I compensation under section 131. 

11 (2) PROCEDURES.—The procedures for medical 

12 monitoring shall include— 

13 (A) specific medical tests to be provided to 

14 eligible individuals and the periodicity of those 

15 tests, which shall initially be provided every 3 

16 years and include— 

17 (i) administration of a health evalua18 tion and work history questionnaire; 

19 (ii) physical examinations, including 

20 blood pressure measurement, chest exam21 ination, and examination for clubbing; 

22 (iii) AP and lateral chest x-ray; and 

23 (iv) spirometry performed according 

24 to ATS standards; 
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1 (B) qualifications of medical providers who 

2 are to provide the tests required under subpara3 graph (A); and 

4 (C) administrative provisions for reim5 bursement from the Fund of the costs of moni6 toring eligible claimants, including the costs as7 sociated with the visits of the claimants to phy8 sicians in connection with medical monitoring, 

9 and with the costs of performing and analyzing 

10 the tests. 

11 (3) PREFERENCES.— 

12 (A) IN GENERAL.—In administering the 

13 monitoring program under this subsection, pref14 erence shall be given to medical and program 

15 providers with— 

16 (i) a demonstrated capacity for identi17 fying, contacting, and evaluating popu18 lations of workers or others previously ex19 posed to asbestos; and 

20 (ii) experience in establishing net21 works of medical providers to conduct med22 ical screening and medical monitoring ex23 aminations. 

24 (B) PROVISION OF LISTS.—Claimants that 

25 are eligible to participate in the medical moni-
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1 toring program shall be provided with a list of 

2 approved providers in their geographic area at 

3 the time such claimants become eligible to re4 ceive medical monitoring. 

5 (f) CONTRACTS.—The Administrator may enter into 

6 contracts with qualified program providers that would per7 mit the program providers to undertake large-scale med8 ical screening and medical monitoring programs by means 

9 of subcontracts with a network of medical providers, or 

10 other health providers. 

11 (g) REVIEW.—Not later than 5 years after the date 

12 of enactment of this Act, and every 5 years thereafter, 

13 the Administrator shall review, and if necessary update, 

14 the protocols and procedures established under this sec15 tion. 

16 SEC. 226. NATIONAL MESOTHELIOMA RESEARCH AND 

17 TREATMENT PROGRAM. 

18 (a) IN GENERAL.—There is established the National 

19 Mesothelioma Research and Treatment Program (referred 

20 to in this section as the ‘‘Program’’) to investigate and ad21 vance the detection, prevention, treatment, and cure of ma22 lignant mesothelioma. 

23 (b) MESOTHELIOMA CENTERS.— 

24 (1) IN GENERAL.—The Administrator shall make 

25 available $1,500,000 from the Fund, and the Director 
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1 of the National Institutes of Health shall make avail2 able $1,000,000 from amounts available to the Direc3 tor, for each of fiscal years 2006 through 2015, for the 

4 establishment of each of 10 mesothelioma disease re5 search and treatment centers. 

6 (2) REQUIREMENTS.—The Director of the Na7 tional Institutes of Health, in consultation with the 

8 Medical Advisory Committee, shall conduct a com9 petitive peer review process to select sites for the cen10 ters described in paragraph (1). The Director shall 

11 ensure that sites selected under this paragraph are— 

12 (A) geographically distributed throughout 

13 the United States with special consideration 

14 given to areas of high incidence of mesothelioma 

15 disease; 

16 (B) closely associated with Department of 

17 Veterans Affairs medical centers, in order to pro18 vide research benefits and care to veterans who 

19 have suffered excessively from mesothelioma; 

20 (C) engaged in exemplary laboratory and 

21 clinical mesothelioma research, including clinical 

22 trials, to provide mechanisms for effective thera23 peutic treatments, as well as detection and pre24 vention, particularly in areas of palliation of 

25 disease symptoms and pain management; 
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1 (D) participants in the National Mesothe2 lioma Registry and Tissue Bank under sub3 section (c) and the annual International Meso4 thelioma Symposium under subsection (d)(2)(E); 

5 (E) with respect to research and treatment 

6 efforts, coordinated with other centers and insti7 tutions involved in exemplary mesothelioma re8 search and treatment; 

9 (F) able to facilitate transportation and 

10 lodging for mesothelioma patients, so as to en11 able patients to participate in the newest devel12 oping treatment protocols, and to enable the cen13 ters to recruit patients in numbers sufficient to 

14 conduct necessary clinical trials; and 

15 (G) nonprofit hospitals, universities, or 

16 medical or research institutions incorporated or 

17 organized in the United States. 

18 (c) MESOTHELIOMA REGISTRY AND TISSUE BANK.— 

19 (1) ESTABLISHMENT.—The Administrator shall 

20 make available $1,000,000 from the Fund, and the 

21 Director of the National Institutes of Health shall 

22 make available $1,000,000 from amounts available to 

23 the Director, for each of fiscal years 2006 through 

24 2015 for the establishment, maintenance, and oper25 ation of a National Mesothelioma Registry to collect 
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1 data regarding symptoms, pathology, evaluation, 

2 treatment, outcomes, and quality of life and a Tissue 

3 Bank to include the pre- and post-treatment blood 

4 (serum and blood cells) specimens as well as tissue 

5 specimens from biopsies and surgery. Not less than 

6 $500,000 of the amount made available under the pre7 ceding sentence in each fiscal year shall be allocated 

8 for the collection and maintenance of tissue speci9 mens. 

10 (2) REQUIREMENTS.—The Director of the Na11 tional Institutes of Health, with the advice and con12 sent of the Medical Advisory Committee, shall conduct 

13 a competitive peer review process to select a site to 

14 administer the Registry and Tissue Bank described in 

15 paragraph (1). The Director shall ensure that the site 

16 selected under this paragraph— 

17 (A) is available to all mesothelioma patients 

18 and qualifying physicians throughout the United 

19 States; 

20 (B) is subject to all applicable medical and 

21 patient privacy laws and regulations; 

22 (C) is carrying out activities to ensure that 

23 data is accessible via the Internet; and 

24 (D) provides data and tissue samples to 

25 qualifying researchers and physicians who apply 
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1 for such data in order to further the under2 standing, prevention, screening, diagnosis, or 

3 treatment of malignant mesothelioma. 

4 (d) CENTER FOR MESOTHELIOMA EDUCATION.— 

5 (1) ESTABLISHMENT.—The Administrator shall 

6 make available $1,000,000 from the Fund, and the 

7 Director of the National Institutes of Health shall 

8 make available $1,000,000 from amounts available to 

9 the Director, for each of fiscal years 2006 through 

10 2015 for the establishment, with the advice and con11 sent of the Medical Advisory Committee, of a Center 

12 for Mesothelioma Education (referred to in this sec13 tion as the ‘‘Center’’) to— 

14 (A) promote mesothelioma awareness and 

15 education; 

16 (B) assist mesothelioma patients and their 

17 family members in obtaining necessary informa18 tion; and 

19 (C) work with the centers established under 

20 subsection (b) in advancing mesothelioma re21 search. 

22 (2) ACTIVITIES.—The Center shall— 

23 (A) educate the public about the new initia24 tives contained in this section through a Na25 tional Mesothelioma Awareness Campaign; 
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1 (B) develop and maintain a Mesothelioma 

2 Educational Resource Center (referred to in this 

3 section as the ‘‘MERCI’’), that is accessible via 

4 the Internet, to provide mesothelioma patients, 

5 family members, and front-line physicians with 

6 comprehensive, current information on mesothe7 lioma and its treatment, as well as on the exist8 ence of, and general claim procedures for the As9 bestos Injury Claims Resolution Fund; 

10 (C) through the MERCI and otherwise, edu11 cate mesothelioma patients, family members, and 

12 front-line physicians about, and encourage such 

13 individuals to participate in, the centers estab14 lished under subsection (b), the Registry and the 

15 Tissue Bank; 

16 (D) complement the research efforts of the 

17 centers established under subsection (b) by 

18 awarding competitive, peer-reviewed grants for 

19 the training of clinical specialist fellows in meso20 thelioma, and for highly innovative, experi21 mental or pre-clinical research; and 

22 (E) conduct an annual International Meso23 thelioma Symposium. 

24 (3) REQUIREMENTS.—The Center shall— 
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1 (A) be a nonprofit corporation under sec2 tion 501(c)(3) of the Internal Revenue Code of 

3 1986; 

4 (B) be a separate entity from and not an 

5 affiliate of any hospital, university, or medical 

6 or research institution; and 

7 (C) demonstrate a history of program 

8 spending that is devoted specifically to the mis9 sion of extending the survival of current and fu10 ture mesothelioma patients, including a history 

11 of soliciting, peer reviewing through a competi12 tive process, and funding research grant applica13 tions relating to the detection, prevention, treat14 ment, and cure of mesothelioma. 

15 (4) CONTRACTS FOR OVERSIGHT.—The Director 

16 of the National Institutes of Health may enter into 

17 contracts with the Center for the selection and over18 sight of the centers established under subsection (b), or 

19 selection of the director of the Registry and the Tissue 

20 Bank under subsection (c) and oversight of the Reg21 istry and the Tissue Bank. 

22 (e) REPORT AND RECOMMENDATIONS.—Not later than 

23 September 30, 2015, The Director of the National Institutes 

24 of Health shall, after opportunity for public comment and 

25 review, publish and provide to Congress a report and rec-
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1 ommendations on the results achieved and information 

2 gained through the Program, including— 

3 (1) information on the status of mesothelioma as 

4 a national health issue, including— 

5 (A) annual United States incidence and 

6 death rate information and whether such rates 

7 are increasing or decreasing; 

8 (B) the average prognosis; and 

9 (C) the effectiveness of treatments and 

10 means of prevention; 

11 (2) promising advances in mesothelioma treat12 ment and research which could be further developed if 

13 the Program is reauthorized; and 

14 (3) a summary of advances in mesothelioma 

15 treatment made in the 10-year period prior to the re16 port and whether those advances would justify con17 tinuation of the Program and whether it should be re18 authorized for an additional 10 years. 

19 (f) SEVERABILITY.—If any provision of this Act, or 

20 amendment made by this Act, or the application of such 

21 provision or amendment to any person or circumstance is 

22 held to be unconstitutional, the remainder of this Act (in23 cluding this section), the amendments made by this Act, 

24 and the application of the provisions of such to any person 

25 or circumstance shall not be affected thereby. 
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1 (g) REGULATIONS.—The Director of the National In2 stitutes of Health shall promulgate regulations to provide 

3 for the implementation of this section. 

4 TITLE III—JUDICIAL REVIEW 

5 SEC. 301. JUDICIAL REVIEW OF RULES AND REGULATIONS. 

6 (a) EXCLUSIVE JURISDICTION.—The United States 

7 Court of Appeals for the District of Columbia Circuit shall 

8 have exclusive jurisdiction over any action to review rules 

9 or regulations promulgated by the Administrator or the 

10 Asbestos Insurers Commission under this Act. 

11 (b) PERIOD FOR FILING PETITION.—A petition for 

12 review under this section shall be filed not later than 60 

13 days after the date notice of such promulgation appears 

14 in the Federal Register. 

15 (c) EXPEDITED PROCEDURES.—The United States 

16 Court of Appeals for the District of Columbia shall provide 

17 for expedited procedures for reviews under this section. 

18 SEC. 302. JUDICIAL REVIEW OF AWARD DECISIONS. 

19 (a) IN GENERAL.—Any claimant adversely affected 

20 or aggrieved by a final decision of the Administrator 

21 awarding or denying compensation under title I may peti22 tion for judicial review of such decision. Any petition for 

23 review under this section shall be filed within 90 days of 

24 the issuance of a final decision of the Administrator. 
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1 (b) EXCLUSIVE JURISDICTION.—A petition for review 

2 may only be filed in the United States Court of Appeals 

3 for the circuit in which the claimant resides at the time 

4 of the issuance of the final order. 

5 (c) STANDARD OF REVIEW.—The court shall uphold 

6 the decision of the Administrator unless the court deter7 mines, upon review of the record as a whole, that the deci8 sion is not supported by substantial evidence, is contrary 

9 to law, or is not in accordance with procedure required 

10 by law. 

11 (d) EXPEDITED PROCEDURES.—The United States 

12 Court of Appeals shall provide for expedited procedures 

13 for reviews under this section. 

14 SEC. 303. JUDICIAL REVIEW OF PARTICIPANTS’ ASSESS15 MENTS. 

16 (a) EXCLUSIVE JURISDICTION.—The United States 

17 Court of Appeals for the District of Columbia Circuit shall 

18 have exclusive jurisdiction over any action to review a final 

19 determination by the Administrator or the Asbestos Insur20 ers Commission regarding the liability of any person to 

21 make a payment to the Fund, including a notice of appli22 cable subtier assignment under section 204(i), a notice of 

23 financial hardship or inequity determination under section 

24 204(d), a notice of a distributor’s adjustment under section 
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1 204(m), and a notice of insurer participant obligation 

2 under section 212(b). 

3 (b) PERIOD FOR FILING ACTION.—A petition for re4 view under subsection (a) shall be filed not later than 60 

5 days after a final determination by the Administrator or 

6 the Commission giving rise to the action. Any defendant 

7 participant who receives a notice of its applicable subtier 

8 under section 204(i) or, a notice of financial hardship or 

9 inequity determination under section 204(d), or a notice 

10 of a distributor’s adjustment under section 204(m), shall 

11 commence any action within 30 days after a decision on 

12 rehearing under section 204(i)(10), and any insurer par13 ticipant who receives a notice of a payment obligation 

14 under section 212(b) shall commence any action within 30 

15 days after receiving such notice. The court shall give such 

16 action expedited consideration. 

17 SEC. 304. OTHER JUDICIAL CHALLENGES. 

18 (a) EXCLUSIVE JURISDICTION.—The United States 

19 District Court for the District of Columbia shall have ex20 clusive jurisdiction over any action for declaratory or in21 junctive relief challenging any provision of this Act. An 

22 action under this section shall be filed not later than 60 

23 days after the date of enactment of this Act or 60 days 

24 after the final action by the Administrator or the Commis25 sion giving rise to the action, whichever is later. 
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1 (b) DIRECT APPEAL.—A final decision in the action 

2 shall be reviewable on appeal directly to the Supreme 

3 Court of the United States. Such appeal shall be taken 

4 by the filing of a notice of appeal within 30 days, and 

5 the filing of a jurisdictional statement within 60 days, of 

6 the entry of the final decision. 

7 (c) EXPEDITED PROCEDURES.—It shall be the duty 

8 of the United States District Court for the District of Co9 lumbia and the Supreme Court of the United States to 

10 advance on the docket and to expedite to the greatest pos11 sible extent the disposition of the action and appeal. 

12 SEC. 305. STAYS, EXCLUSIVITY, AND CONSTITUTIONAL RE13 VIEW. 

14 (a) NO STAYS.— 

15 (1) PAYMENTS.—No court may issue a stay of 

16 payment by any party into the Fund pending its 

17 final judgment. 

18 (2) LEGAL CHALLENGES.—No court may issue a 

19 stay or injunction pending final judicial action, in20 cluding the exhaustion of all appeals, on a legal chal21 lenge to this Act or any portion of this Act. 

22 (b) EXCLUSIVITY OF REVIEW.—An action of the Ad23 ministrator or the Asbestos Insurers Commission for 

24 which review could have been obtained under section 301, 
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1 302, or 303 shall not be subject to judicial review in any 

2 other proceeding. 

3 (c) CONSTITUTIONAL REVIEW.— 

4 (1) IN GENERAL.—Notwithstanding any other 

5 provision of law, any interlocutory or final judgment, 

6 decree, or order of a Federal court holding this Act, 

7 or any provision or application thereof, unconstitu8 tional shall be reviewable as a matter of right by di9 rect appeal to the Supreme Court. 

10 (1) IN GENERAL.—The United States District 

11 Court for the District of Columbia shall have exclusive 

12 jurisdiction over any action challenging the constitu13 tionality of any provision or application of this Act. 

14 The following rules shall apply: 

15 (A) The action shall be filed in the United 

16 States District Court for the District of Colum17 bia and shall be heard by a 3-judge court con18 vened under section 2284 of title 28, United 

19 States Code. 

20 (B) A final decision in the action shall be 

21 reviewable only by appeal directly to the Su22 preme Court of the United States. Such appeal 

23 shall be taken by the filing of a notice of appeal 

24 within 10 days, and the filing of a jurisdictional 
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1 statement within 30 days, after the entry of the 

2 final decision. 

3 (C) It shall be the duty of the United States 

4 District Court for the District of Columbia and 

5 the Supreme Court of the United States to ad6 vance on the docket and to expedite to the great7 est possible extent the disposition of the action 

8 and appeal. 

9 (2) PERIOD FOR FILING APPEAL.—Any such 

10 appeal shall be filed not more than 30 days after 

11 entry of such judgment, decree, or order. 

12 (3)(2) REPAYMENT TO ASBESTOS TRUST AND

13 CLASS ACTION TRUST.—If the transfer of the assets 

14 of any asbestos trust of a debtor or any class action 

15 trust (or this Act as a whole) is held to be unconsti16 tutional or otherwise unlawful, the Fund shall trans17 fer the remaining balance of such assets (determined 

18 under section 405(f)(1)(A)(iii)) back to the appro19 priate asbestos trust or class action trust within 90 

20 days after final judicial action on the legal challenge, 

21 including the exhaustion of all appeals. 
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1 TITLE IV—MISCELLANEOUS 

2 PROVISIONS 

3 SEC. 401. FALSE INFORMATION. 

4 (a) IN GENERAL.—Chapter 63 of title 18, United 

5 States Code, is amended by adding at the end the fol6 lowing: 

7 ‘‘§ 1348. Fraud and false statements in connection 

8 with participation in Asbestos Injury 

9 Claims Resolution Fund 

10 ‘‘(a) FRAUD RELATING TO ASBESTOS INJURY

11 CLAIMS RESOLUTION FUND.—Whoever knowingly and 

12 willfully executes, or attempts to execute, a scheme or arti13 fice to defraud the Office of Asbestos Disease Compensa14 tion or the Asbestos Insurers Commission under title II 

15 of the Fairness in Asbestos Injury Resolution Act of 2005 

16 shall be fined under this title or imprisoned not more than 

17 20 years, or both. 

18 ‘‘(b) FALSE STATEMENT RELATING TO ASBESTOS

19 INJURY CLAIMS RESOLUTION FUND.—Whoever, in any 

20 matter involving the Office of Asbestos Disease Compensa21 tion or the Asbestos Insurers Commission, knowingly and 

22 willfully— 

23 ‘‘(1) falsifies, conceals, or covers up by any 

24 trick, scheme, or device a material fact; 
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1 ‘‘(2) makes any materially false, fictitious, or 

2 fraudulent statements or representations; or 

3 ‘‘(3) makes or uses any false writing or docu4 ment knowing the same to contain any materially 

5 false, fictitious, or fraudulent statement or entry, in 

6 connection with the award of a claim or the deter7 mination of a participant’s payment obligation under 

8 title I or II of the Fairness in Asbestos Injury Reso9 lution Act of 2005 shall be fined under this title or 

10 imprisoned not more than 10 years, or both.’’. 

11 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

12 The table of sections for chapter 63 of title 18, United 

13 States Code, is amended by adding at the end the fol14 lowing: 

‘‘1348. Fraud and false statements in connection with participation in Asbestos Injury Claims Resolution Fund.’’. 

15 ‘‘§ 1351. Fraud and false statements in connection 

16 with participation in Asbestos Injury 

17 Claims Resolution Fund 

18 ‘‘(a) FRAUD RELATING TO ASBESTOS INJURY CLAIMS

19 RESOLUTION FUND.—Whoever knowingly and willfully exe20 cutes, or attempts to execute, a scheme or artifice to defraud 

21 the Office of Asbestos Disease Compensation or the Asbestos 

22 Insurers Commission under title II of the Fairness in Asbes23 tos Injury Resolution Act of 2005 shall be fined under this 

24 title or imprisoned not more than 20 years, or both. 
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1 ‘‘(b) FALSE STATEMENT RELATING TO ASBESTOS IN2 JURY CLAIMS RESOLUTION FUND.— 

3 ‘‘(1) IN GENERAL.—It shall be unlawful for any 

4 person, in any matter involving the Office of Asbestos 

5 Disease Compensation or the Asbestos Insurers Com6 mission, to knowingly and willfully— 

7 ‘‘(A) falsify, conceal, or cover up by any 

8 trick, scheme, or device a material fact; 

9 ‘‘(B) make any materially false, fictitious, 

10 or fraudulent statement or representation; or 

11 ‘‘(C) make or use any false writing or docu12 ment knowing the same to contain any materi13 ally false, fictitious, or fraudulent statement or 

14 entry, in connection with the award of a claim 

15 or the determination of a participant’s payment 

16 obligation under title I or II of the Fairness in 

17 Asbestos Injury Resolution Act of 2005. 

18 ‘‘(2) PENALTY.—A person who violates this sub19 section shall be fined under this title or imprisoned 

20 not more than 10 years, or both.’’. 

21 (b) TECHNICAL AND CONFORMING AMENDMENT.—The 

22 table of sections for chapter 63 of title 18, United States 

23 Code, is amended by adding at the end the following: 

‘‘1351. Fraud and false statements in connection with participation in Asbestos Injury Claims Resolution Fund.’’. 
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1 SEC. 402. EFFECT ON BANKRUPTCY LAWS. 

2 (a) NO AUTOMATIC STAY.—Section 362(b) of title 

3 11, United States Code, is amended— 

4 (1) in paragraph (17), by striking ‘‘or’’ at the 

5 end; 

6 (2) in paragraph (18), by striking the period at 

7 the end and inserting ‘‘; or’’; and 

8 (3) by inserting after paragraph (18) the fol9 lowing: 

10 ‘‘(19) under subsection (a) of this section of the 

11 enforcement of any payment obligations under sec12 tion 204 of the Fairness in Asbestos Injury Resolu13 tion Act of 2005, against a debtor, or the property 

14 of the estate of a debtor, that is a participant (as 

15 that term is defined in section 3 of that Act).’’. 

16 (b) ASSUMPTION OF EXECUTORY CONTRACT.—Sec17 tion 365 of title 11, United States Code, is amended by 

18 adding at the end the following: 

19 ‘‘(p) If a debtor is a participant (as that term is de20 fined in section 3 of the Fairness in Asbestos Injury Reso21 lution Act of 2005), the trustee shall be deemed to have 

22 assumed all executory contracts entered into by the partic23 ipant under section 204 of that Act. The trustee may not 

24 reject any such executory contract.’’. 
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1 (c) ALLOWED ADMINISTRATIVE EXPENSES.—Section 

2 503 of title 11, United States Code, is amended by adding 

3 at the end the following: 

4 ‘‘(c)(1) Claims or expenses of the United States, the 

5 Attorney General, or the Administrator (as that term is 

6 defined in section 3 of the Fairness in Asbestos Injury 

7 Resolution Act of 2005) based upon the asbestos payment 

8 obligations of a debtor that is a Participant (as that term 

9 is defined in section 3 of that Act), shall be paid as an 

10 allowed administrative expense. The debtor shall not be 

11 entitled to either notice or a hearing with respect to such 

12 claims. 

13 ‘‘(2) For purposes of paragraph (1), the term ‘asbes14 tos payment obligation’ means any payment obligation 

15 under title II of the Fairness in Asbestos Injury Resolu16 tion Act of 2005.’’. 

17 (d) NO DISCHARGE.—Section 523 of title 11, United 

18 States Code, is amended by adding at the end the fol19 lowing: 

20 ‘‘(f) A discharge under section 727, 1141, 1228, or 

21 1328 of this title does not discharge any debtor that is 

22 a participant (as that term is defined in section 3 of the 

23 Fairness in Asbestos Injury Resolution Act of 2005) of 

24 the debtor’s payment obligations assessed against the par25 ticipant under title II of that Act.’’. 
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1 (e) PAYMENT.—Section 524 of title 11, United States 

2 Code, is amended by adding at the end the following: 

3 ‘‘(i) PARTICIPANT DEBTORS.— 

4 ‘‘(1) IN GENERAL.—Paragraphs (2) and (3) 

5 shall apply to a debtor who— 

6 ‘‘(A) is a participant that has made prior 

7 asbestos expenditures (as such terms are de8 fined in the Fairness in Asbestos Injury Resolu9 tion Act of 2005); and 

10 ‘‘(B) is subject to a case under this title 

11 that is pending— 

12 ‘‘(i) on the date of enactment of the 

13 Fairness in Asbestos Injury Resolution Act 

14 of 2005; or 

15 ‘‘(ii) at any time during the 1-year pe16 riod preceding the date of enactment of 

17 that Act. 

18 ‘‘(2) TIER I DEBTORS.—A debtor that has been 

19 assigned to Tier I under section 202 of the Fairness 

20 in Asbestos Injury Resolution Act of 2005, shall 

21 make payments in accordance with sections 202 and 

22 203 of that Act. 

23 ‘‘(3) TREATMENT OF PAYMENT OBLIGA24 TIONS.—All payment obligations of a debtor under 
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1 sections 202 and 203 of the Fairness in Asbestos In2 jury Resolution Act of 2005 shall— 

3 ‘‘(A) constitute costs and expenses of ad4 ministration of a case under section 503 of this 

5 title; 

6 ‘‘(B) notwithstanding any case pending 

7 under this title, be payable in accordance with 

8 section 202 of that Act; 

9 ‘‘(C) not be stayed; 

10 ‘‘(D) not be affected as to enforcement or 

11 collection by any stay or injunction of any 

12 court; and 

13 ‘‘(E) not be impaired or discharged in any 

14 current or future case under this title.’’. 

15 (f) TREATMENT OF TRUSTS.—Section 524 of title 

16 11, United States Code, as amended by this Act, is 

17 amended by adding at the end the following: 

18 ‘‘(j) ASBESTOS TRUSTS.— 

19 ‘‘(1) IN GENERAL.—A trust shall assign a por20 tion of the corpus of the trust to the Asbestos Injury 

21 Claims Resolution Fund (referred to in this sub22 section as the ‘Fund’) as established under the Fair23 ness in Asbestos Injury Resolution Act of 2005 if 

24 the trust qualifies as a ‘trust’ under section 201 of 

25 that Act. 
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1 ‘‘(2) TRANSFER OF TRUST ASSETS.— 

2 ‘‘(A) IN GENERAL.— 

3 ‘‘(i) Except as provided under sub4 paragraphs (B), (C), and (E), the assets in 

5 any trust established to provide compensa6 tion for asbestos claims (as defined in sec7 tion 3 of the Fairness in Asbestos Injury 

8 Resolution Act of 2005) shall be trans9 ferred to the Fund not later than 6 

10 months 90 days after the date of enact11 ment of the Fairness in Asbestos Injury 

12 Resolution Act of 2005 or 30 days fol13 lowing funding of a trust established under 

14 a reorganization plan subject to section 

15 202(c) of that Act. Except as provided 

16 under subparagraph (B), the Adminis17 trator of the Fund shall accept such assets 

18 and utilize them for any purposes of the 

19 Fund under section 221 of such Act, in20 cluding the payment of claims for awards 

21 under such Act to beneficiaries of the trust 

22 from which the assets were transferred. 

23 ‘‘(ii) Notwithstanding any other provi24 sion of Federal or State law, no liability of 

25 any kind may be imposed on a trustee of 
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1 a trust for transferring assets to the Fund 

2 in accordance with clause (i). 

3 ‘‘(B) AUTHORITY TO REFUSE ASSETS.— 

4 The Administrator of the Fund may refuse to 

5 accept any asset that the Administrator deter6 mines may create liability for the Fund in ex7 cess of the value of the asset. 

8 ‘‘(C) ALLOCATION OF TRUST ASSETS.—If 

9 a trust under subparagraph (A) has bene10 ficiaries with claims that are not asbestos 

11 claims, the assets transferred to the Fund 

12 under subparagraph (A) shall not include assets 

13 allocable to such beneficiaries. The trustees of 

14 any such trust shall determine the amount of 

15 such trust assets to be reserved for the con16 tinuing operation of the trust in processing and 

17 paying claims that are not asbestos claims. The 

18 trustees shall demonstrate to the satisfaction of 

19 the Administrator, or by clear and convincing 

20 evidence in a proceeding brought before the 

21 United States District Court for the District of 

22 Columbia in accordance with paragraph (4), 

23 that the amount reserved is properly allocable 

24 to claims other than asbestos claims. 
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1 ‘‘(D) SALE OF FUND ASSETS.—The invest2 ment requirements under section 222 of the 

3 Fairness in Asbestos Injury Resolution Act of 

4 2005 shall not be construed to require the Ad5 ministrator of the Fund to sell assets trans6 ferred to the Fund under subparagraph (A). 

7 ‘‘(E) LIQUIDATED CLAIMS.—Except as 

8 specifically provided in this subparagraph, all 

9 asbestos claims against a trust are superseded 

10 and preempted as of the date of enactment of 

11 the Fairness in Asbestos Injury Resolution Act 

12 of 2005, and a trust shall not make any pay13 ment relating to asbestos claims after that date. 

14 If, in the ordinary course and the normal and 

15 usual administration of the trust consistent 

16 with past practices, a trust had before the date 

17 of enactment of the Fairness in Asbestos Injury 

18 Resolution Act of 2005, made all determina19 tions necessary to entitle an individual claimant 

20 to a noncontingent cash payment from the 

21 trust, the trust shall (i) make any lump-sum 

22 cash payment due to that claimant, and (ii) 

23 make or provide for all remaining noncontin24 gent payments on any award being paid or 

25 scheduled to be paid on an installment basis, in 
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1 each case only to the same extent that the trust 

2 would have made such cash payments in the or3 dinary course and consistent with past practices 

4 before enactment of that Act. A trust shall not 

5 make any payment in respect of any alleged 

6 contingent right to recover any greater amount 

7 than the trust had already paid, or had com8 pleted all determinations necessary to pay, to a 

9 claimant in cash in accordance with its ordinary 

10 distribution procedures in effect as of June 1, 

11 2003. 

12 ‘‘(3) INJUNCTION.— 

13 ‘‘(A) IN GENERAL.—Any injunction issued 

14 as part of the formation of a trust described in 

15 paragraph (1) shall remain in full force and ef16 fect. No court, Federal or State, may enjoin the 

17 transfer of assets by a trust to the Fund in ac18 cordance with this subsection pending resolu19 tion of any litigation challenging such transfer 

20 or the validity of this subsection or of any pro21 vision of the Fairness in Asbestos Injury Reso22 lution Act of 2005, and an interlocutory order 

23 denying such relief shall not be subject to im24 mediate appeal under section 1291(a) of title 

25 28. 
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1 ‘‘(B) AVAILABILITY OF FUND ASSETS.— 

2 Notwithstanding any other provision of law, 

3 once such a transfer has been made, the assets 

4 of the Fund shall be available to satisfy any 

5 final judgment entered in such an action and 

6 such transfer shall no longer be subject to any 

7 appeal or review— 

8 ‘‘(i) declaring that the transfer ef9 fected a taking of a right or property for 

10 which an individual is constitutionally enti11 tled to just compensation; or 

12 ‘‘(ii) requiring the transfer back to a 

13 trust of any or all assets transferred by 

14 that trust to the Fund. 

15 ‘‘(4) JURISDICTION.—Solely for purposes of im16 plementing this subsection, personal jurisdiction over 

17 every covered trust, the trustees thereof, and any 

18 other necessary party, and exclusive subject matter 

19 jurisdiction over every question arising out of or re20 lated to this subsection, shall be vested in the United 

21 States District Court for the District of Columbia. 

22 Notwithstanding any other provision of law, includ23 ing section 1127 of this title, that court may make 

24 any order necessary and appropriate to facilitate 

25 prompt compliance with this subsection, including 
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1 assuming jurisdiction over and modifying, to the ex2 tent necessary, any applicable confirmation order or 

3 other order with continuing and prospective applica4 tion to a covered trust. The court may also resolve 

5 any related challenge to the constitutionality of this 

6 subsection or of its application to any trust, trustee, 

7 or individual claimant. The Administrator of the 

8 Fund may bring an action seeking such an order or 

9 modification, under the standards of rule 60(b) of 

10 the Federal Rules of Civil Procedure or otherwise, 

11 and shall be entitled to intervene as of right in any 

12 action brought by any other party seeking interpre13 tation, application, or invalidation of this subsection. 

14 Any order denying relief that would facilitate prompt 

15 compliance with the transfer provisions of this sub16 section shall be subject to immediate appeal under 

17 section 304 of the Fairness in Asbestos Injury Reso18 lution Act of 2005. Notwithstanding any other provi19 sion of this paragraph, for purposes of implementing 

20 the sunset provisions of section 402(f) of such Act 

21 which apply to asbestos trusts and the class action 

22 trust, the bankruptcy court or United States district 

23 court having jurisdiction over any such trust as of 

24 the date of enactment of such Act shall retain such 

25 jurisdiction.’’. 
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1 (g) NO AVOIDANCE OF TRANSFER.—Section 546 of 

2 title 11, United States Code, is amended by adding at the 

3 end the following: 

4 ‘‘(h) Notwithstanding the rights and powers of a 

5 trustee under sections 544, 545, 547, 548, 549, and 550 

6 of this title, if a debtor is a participant (as that term is 

7 defined in section 3 of the Fairness in Asbestos Injury 

8 Resolution Act of 2005), the trustee may not avoid a 

9 transfer made by the debtor under its payment obligations 

10 under section 202 or 203 of that Act.’’. 

11 (h) CONFIRMATION OF PLAN.—Section 1129(a) of 

12 title 11, United States Code, is amended by adding at the 

13 end the following: 

14 ‘‘(14) If the debtor is a participant (as that 

15 term is defined in section 3 of the Fairness in As16 bestos Injury Resolution Act of 2005), the plan pro17 vides for the continuation after its effective date of 

18 payment of all payment obligations under title II of 

19 that Act.’’. 

20 (i) EFFECT ON INSURANCE RECEIVERSHIP PRO21 CEEDINGS.— 

22 (1) LIEN.—In an insurance receivership pro23 ceeding involving a direct insurer, reinsurer or run24 off participant, there shall be a lien in favor of the 

25 Fund for the amount of any assessment and any 
314 

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1 such lien shall be given priority over all other claims 

2 against the participant in receivership, except for the 

3 expenses of administration of the receivership and 

4 the perfected claims of the secured creditors. Any 

5 State law that provides for priorities inconsistent 

6 with this provision is preempted by this Act. 

7 (2) PAYMENT OF ASSESSMENT.—Payment of 

8 any assessment required by this Act shall not be 

9 subject to any automatic or judicially entered stay in 

10 any insurance receivership proceeding. This Act shall 

11 preempt any State law requiring that payments by 

12 a direct insurer, reinsurer or runoff participant in 

13 an insurance receivership proceeding be approved by 

14 a court, receiver or other person. Payments of as15 sessments by any direct insurer or reinsurer partici16 pant under this Act shall not be subject to the avoid17 ance powers of a receiver or a court in or relating 

18 to an insurance receivership proceeding. 

19 (j) STANDING IN BANKRUPTCY PROCEEDINGS.—The 

20 Administrator shall have standing in any bankruptcy case 

21 involving a debtor participant. No bankruptcy court may 

22 require the Administrator to return property seized to sat23 isfy obligations to the Fund. 
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1 SEC. 403. EFFECT ON OTHER LAWS AND EXISTING CLAIMS. 

2 (a) EFFECT ON FEDERAL AND STATE LAW.—The 

3 provisions of this Act shall supersede any Federal or State 

4 law insofar as such law may relate to any asbestos claim, 

5 including any claim described under subsection (e)(2). 

6 (b) EFFECT ON SILICA CLAIMS.— 

7 (1) IN GENERAL.— 

8 (A) RULE OF CONSTRUCTION.—Nothing in 

9 this Act shall be construed to preempt, bar, or 

10 otherwise preclude any personal injury claim at11 tributable to exposure to silica as to which the 

12 plaintiff— 

13 (i) pleads with particularity and es14 tablishes by a preponderance of evidence 

15 either that— 

16 (I) no claim has been asserted or 

17 filed by or with respect to the exposed 

18 person in any forum for any asbestos19 related condition and the exposed per20 son (or another claiming on behalf of 

21 or through the exposed person) is not 

22 eligible for any monetary award under 

23 this Act; or 

24 (II)(aa) the exposed person suf25 fers or has suffered a functional im-
316 

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1 pairment that was caused by exposure 

2 to silica; and 

3 (bb) asbestos exposure was not a 

4 substantial contributing factor to such 

5 functional impairment; and 

6 (ii) satisfies the requirements of para7 graph (2) . 

8 (B) PREEMPTION.—Claims attributable to 

9 exposure to silica that fail to meet the require10 ments of subparagraph (A) shall be preempted 

11 by this Act. 

12 (2) REQUIRED EVIDENCE.— 

13 (A) IN GENERAL.—In any claim to which 

14 paragraph (1) applies, the initial pleading (or, 

15 for claims pending on the date of enactment of 

16 this Act, an amended pleading to be filed within 

17 60 days after such date, but not later than 60 

18 days before trial, shall plead with particularity 

19 the elements of subparagraph (A)(i)(I) or (II) 

20 and shall be accompanied by the information 

21 described under subparagraph (B)(i) through 

22 (iv). 

23 (B) PLEADINGS.—If the claim pleads the 

24 elements of paragraph (1)(A)(i)(II) and by the 

25 information described under clauses (i) through 
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1 (iv) of this subparagraph if the claim pleads the 

2 elements of paragraph (1)(A)(i)(I)— 

3 (i) admissible evidence, including at a 

4 minimum, a B-reader’s report, the under5 lying x-ray film and such other evidence 

6 showing that the claim may be maintained 

7 and is not preempted under paragraph (1); 

8 (ii) notice of any previous lawsuit or 

9 claim for benefits in which the exposed 

10 person, or another claiming on behalf of or 

11 through the injured person, asserted an in12 jury or disability based wholly or in part 

13 on exposure to asbestos; 

14 (iii) if known by the plaintiff after 

15 reasonable inquiry by the plaintiff or his 

16 representative, the history of the exposed 

17 person’s exposure, if any, to asbestos; and 

18 (iv) copies of all medical and labora19 tory reports pertaining to the exposed per20 son that refer to asbestos or asbestos expo21 sure. 

22 (3) STATUTE OF LIMITATIONS.—In general, the 

23 statute of limitations for a silica claim shall be gov24 erned by applicable State law, except that in any case 

25 under this subsection, the statute of limitations shall 
318 

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1 only start to run when the plaintiff becomes im2 paired. 

3 (c) SUPERSEDING PROVISIONS.— 

4 (1) IN GENERAL.—Except as provided under 

5 paragraph (3) and section 106(f), any agreement, 

6 understanding, or undertaking by any person or af7 filiated group with respect to the treatment of any 

8 asbestos claim that requires future performance by 

9 any party, insurer of such party, settlement adminis10 trator, or escrow agent shall be superseded in its en11 tirety by this Act. 

12 (2) NO FORCE OR EFFECT.—Except as pro13 vided under paragraph (3), any such agreement, un14 derstanding, or undertaking by any such person or 

15 affiliated group shall be of no force or effect, and no 

16 person shall have any rights or claims with respect 

17 to any such agreement, understanding, or under18 taking. 

19 (3) EXCEPTION.— 

20 (A) IN GENERAL.—Except as provided in 

21 section 202(f), nothing in this Act shall abro22 gate a binding and legally enforceable written 

23 settlement agreement between any defendant 

24 participant or its insurer and a specific named 
319 

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1 plaintiff with respect to the settlement of an as2 bestos claim of the plaintiff if— 

3 (i) before the date of enactment of 

4 this Act, the settlement agreement was ex5 ecuted directly by the settling defendant or 

6 the settling insurer and the individual 

7 plaintiff, or on behalf of the plaintiff where 

8 the plaintiff is incapacitated and the settle9 ment agreement is signed by an authorized 

10 legal representative; 

11 (i) before the date of enactment of this 

12 Act, the settlement agreement was executed 

13 by— 

14 (I) the settling defendant or the 

15 settling insurer; and 

16 (II)(aa) the specific individual 

17 plaintiff, or the individual’s immediate 

18 relatives; or 

19 (bb) an authorized legal represent20 ative acting on behalf of the plaintiff 

21 where the plaintiff is incapacitated 

22 and the settlement agreement is signed 

23 by that authorized legal representative; 

24 (ii) the settlement agreement contains 

25 an express obligation by the settling de-
320 

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1 fendant or settling insurer to make a fu2 ture direct monetary payment or payments 

3 in a fixed amount or amounts to the indi4 vidual plaintiff; and 

5 (iii) within 30 days after the date of 

6 enactment of this Act, or such shorter time 

7 period specified in the settlement agree8 ment, all conditions to payment under the 

9 settlement agreement have been fulfilled, 

10 so that the only remaining performance 

11 due under the settlement agreement is the 

12 payment or payments by the settling de13 fendant or the settling insurer. 

14 (B) BANKRUPTCY-RELATED AGREE15 MENTS.—The exception set forth in this para16 graph shall not apply to any bankruptcy-related 

17 agreement. 

18 (C) COLLATERAL SOURCE.—Any settle19 ment payment under this section is a collateral 

20 source if the plaintiff seeks recovery from the 

21 Fund. 

22 (D) ABROGATION.—Nothing in subpara23 graph (A) shall abrogate a settlement agree24 ment otherwise satisfying the requirements of 

25 that subparagraph if such settlement agreement 
321 

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1 expressly anticipates the enactment of this Act 

2 and provides for the effects of this Act. 

3 (E) HEALTH CARE INSURANCE OR EX4 PENSES SETTLEMENTS.—Nothing in this Act 

5 shall abrogate or terminate an otherwise fully 

6 enforceable settlement agreement which was ex7 ecuted before the date of enactment of this Act 

8 directly by the settling defendant or the settling 

9 insurer and a specific named plaintiff to pay 

10 the health care insurance or health care ex11 penses of the plaintiff. 

12 (d) EXCLUSIVE REMEDY.— 

13 (1) IN GENERAL.—Except as provided under 

14 paragraph (2) and section 106(f), the remedies pro15 vided under this Act shall be the exclusive remedy 

16 for any asbestos claim, including any claim described 

17 in subsection (e)(2), under any Federal or State law. 

18 (2) CIVIL ACTIONS AT TRIAL.— 

19 (A) IN GENERAL.—This Act shall not 

20 apply to any asbestos claim that— 

21 (i) is a civil action filed in a Federal 

22 or State court (not including a filing in a 

23 bankruptcy court); 

24 (ii) is not part of a consolidation of 

25 actions or a class action; and 
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1 (iii) on the date of enactment of this 

2 Act— 

3 (I) in the case of a civil action 

4 which includes a jury trial, is before 

5 the jury after its impanelling and 

6 commencement of presentation of evi7 dence, but before its deliberations; 

8 (II) in the case of a civil action 

9 which includes a trial in which a judge 

10 is the trier of fact, is at the presen11 tation of evidence at trial; or 

12 (III) a verdict, final order, or 

13 final judgment has been entered by a 

14 trial court. 

15 (B) NONAPPLICABILITY.—This Act shall 

16 not apply to a civil action described under sub17 paragraph (A) throughout the final disposition 

18 of the action. 

19 (e) BAR ON ASBESTOS CLAIMS.— 

20 (1) IN GENERAL.—No asbestos claim (including 

21 any claim described in paragraph (2)) may be pur22 sued, and no pending asbestos claim may be main23 tained, in any Federal or State court, except as pro24 vided under subsection (d)(2) and section 106(f). 

25 (2) CERTAIN SPECIFIED CLAIMS.— 
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1 (A) IN GENERAL.—Subject to section 404 

2 (d) and (e)(3) of this Act, no claim may be 

3 brought or pursued in any Federal or State 

4 court or insurance receivership proceeding— 

5 (i) relating to any default, confessed 

6 or stipulated judgment on an asbestos 

7 claim if the judgment debtor expressly 

8 agreed, in writing or otherwise, not to con9 test the entry of judgment against it and 

10 the plaintiff expressly agreed, in writing or 

11 otherwise, to seek satisfaction of the judg12 ment only against insurers or in bank13 ruptcy; 

14 (ii) relating to the defense, investiga15 tion, handling, litigation, settlement, or 

16 payment of any asbestos claim by any par17 ticipant, including claims for bad faith or 

18 unfair or deceptive claims handling or 

19 breach of any duties of good faith; or 

20 (iii) arising out of or relating to the 

21 asbestos-related injury of any individual 

22 and— 

23 (I) asserting any conspiracy, con24 cert of action, aiding or abetting, act, 

25 conduct, statement, misstatement, un-
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1 dertaking, publication, omission, or 

2 failure to detect, speak, disclose, pub3 lish, or warn relating to the presence 

4 or health effects of asbestos or the 

5 use, sale, distribution, manufacture, 

6 production, development, inspection, 

7 advertising, marketing, or installation 

8 of asbestos; or 

9 (II) asserting any conspiracy, 

10 act, conduct, statement, omission, or 

11 failure to detect, disclose, or warn re12 lating to the presence or health effects 

13 of asbestos or the use, sale, distribu14 tion, manufacture, production, devel15 opment, inspection, advertising, mar16 keting, or installation of asbestos, as17 serted as or in a direct action against 

18 an insurer or reinsurer based upon 

19 any theory, statutory, contract, tort, 

20 or otherwise; or 

21 (iv) by any third party, and premised 

22 on any theory, allegation, or cause of ac23 tion, for reimbursement of healthcare costs 

24 allegedly associated with the use of or ex-
325 

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1 posure to asbestos, whether such claim is 

2 asserted directly, indirectly or derivatively. 

3 (B) EXCEPTIONS.—Subparagraph (A) (ii) 

4 and (iii) shall not apply to claims against par5 ticipants by persons— 

6 (i) with whom the participant is in 

7 privity of contract; 

8 (ii) who have received an assignment 

9 of insurance rights not otherwise voided by 

10 this Act; or 

11 (iii) who are beneficiaries covered by 

12 the express terms of a contract with that 

13 participant. 

14 (3) PREEMPTION.—Any action asserting an as15 bestos claim (including a claim described in para16 graph (2)) in any Federal or State court is pre17 empted by this Act, except as provided under sub18 section (d)(2) and section 106(f). 

19 (4) DISMISSAL.—Except as provided under sub20 section (d)(2), no judgment other than a judgment 

21 of dismissal may be entered in any such action, in22 cluding an action pending on appeal, or on petition 

23 or motion for discretionary review, on or after the 

24 date of enactment of this Act. A court may dismiss 

25 any such action on its motion. If the court denies 
326 

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1 the motion to dismiss, it shall stay further pro2 ceedings until final disposition of any appeal taken 

3 under this Act. 

4 (5) REMOVAL.— 

5 (A) IN GENERAL.—If an action in any 

6 State court under paragraph (3) is preempted, 

7 barred, or otherwise precluded under this Act, 

8 and not dismissed, or if an order entered after 

9 the date of enactment of this Act purporting to 

10 enter judgment or deny review is not rescinded 

11 and replaced with an order of dismissal within 

12 30 days after the filing of a motion by any 

13 party to the action advising the court of the 

14 provisions of this Act, any party may remove 

15 the case to the district court of the United 

16 States for the district in which such action is 

17 pending. 

18 (B) TIME LIMITS.—For actions originally 

19 filed after the date of enactment of this Act, the 

20 notice of removal shall be filed within the time 

21 limits specified in section 1441(b) of title 28, 

22 United States Code. 

23 (C) PROCEDURES.—The procedures for re24 moval and proceedings after removal shall be in 

25 accordance with sections 1446 through 1450 of 
327 

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1 title 28, United States Code, except as may be 

2 necessary to accommodate removal of any ac3 tions pending (including on appeal) on the date 

4 of enactment of this Act. 

5 (D) REVIEW OF REMAND ORDERS.— 

6 (i) IN GENERAL.—Section 1447 of 

7 title 28, United States Code, shall apply to 

8 any removal of a case under this section, 

9 except that notwithstanding subsection (d) 

10 of that section, a court of appeals may ac11 cept an appeal from an order of a district 

12 court granting or denying a motion to re13 mand an action to the State court from 

14 which it was removed if application is 

15 made to the court of appeals not less than 

16 7 days after entry of the order. 

17 (ii) TIME PERIOD FOR JUDGMENT.—If 

18 the court of appeals accepts an appeal 

19 under clause (i), the court shall complete 

20 all action on such appeal, including ren21 dering judgment, not later than 60 days 

22 after the date on which such appeal was 

23 filed, unless an extension is granted under 

24 clause (iii). 
328 

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1 (iii) EXTENSION OF TIME PERIOD.— 

2 The court of appeals may grant an exten3 sion of the 60-day period described in 

4 clause (ii) if— 

5 (I) all parties to the proceeding 

6 agree to such extension, for any pe7 riod of time; or 

8 (II) such extension is for good 

9 cause shown and in the interests of 

10 justice, for a period not to exceed 10 

11 days. 

12 (iv) DENIAL OF APPEAL.—If a final 

13 judgment on the appeal under clause (i) is 

14 not issued before the end of the period de15 scribed in clause (ii), including any exten16 sion under clause (iii), the appeal shall be 

17 denied. 

18 (E) JURISDICTION.—The jurisdiction of 

19 the district court shall be limited to— 

20 (i) determining whether removal was 

21 proper; and 

22 (ii) determining, based on the evi23 dentiary record, whether the claim pre24 sented is preempted, barred, or otherwise 

25 precluded under this Act. 
329 

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1 (6) CREDITS.— 

2 (A) IN GENERAL.—If, notwithstanding the 

3 express intent of Congress stated in this sec4 tion, any court finally determines for any rea5 son that an asbestos claim is not barred under 

6 this subsection and is not subject to the exclu7 sive remedy or preemption provisions of this 

8 section, then any participant required to satisfy 

9 a final judgment executed with respect to any 

10 such claim may elect to receive a credit against 

11 any assessment owed to the Fund equal to the 

12 amount of the payment made with respect to 

13 such executed judgment. 

14 (B) REQUIREMENTS.—The Administrator 

15 shall require participants seeking credit under 

16 this paragraph to demonstrate that the partici17 pant— 

18 (i) timely pursued all available rem19 edies, including remedies available under 

20 this paragraph to obtain dismissal of the 

21 claim; and 

22 (ii) notified the Administrator at least 

23 20 days before the expiration of any period 

24 within which to appeal the denial of a mo25 tion to dismiss based on this section. 
330 

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1 (C) INFORMATION.—The Administrator 

2 may require a participant seeking credit under 

3 this paragraph to furnish such further informa4 tion as is necessary and appropriate to establish 

5 eligibility for, and the amount of, the credit. 

6 (D) INTERVENTION.—The Administrator 

7 may intervene in any action in which a credit 

8 may be due under this paragraph. 

9 SEC. 404. EFFECT ON INSURANCE AND REINSURANCE CON10 TRACTS. 

11 (a) EROSION OF INSURANCE COVERAGE LIMITS.— 

12 (1) DEFINITIONS.—In this section, the fol13 lowing definitions shall apply: 

14 (A) DEEMED EROSION AMOUNT.—The 

15 term ‘‘deemed erosion amount’’ means the 

16 amount of erosion deemed to occur at enact17 ment under paragraph (2). 

18 (B) EARLY SUNSET.—The term ‘‘early 

19 sunset’’ means an event causing termination of 

20 the program under section 405(f) which relieves 

21 the insurer participants of paying some portion 

22 of the aggregate payment level of 

23 $46,025,000,000 required under section 

24 212(a)(2)(A). 
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1 (C) EARNED EROSION AMOUNT.—The 

2 term ‘‘earned erosion amount’’ means, in the 

3 event of any early sunset under section 405(f), 

4 the percentage, as set forth in the following 

5 schedule, depending on the year in which the 

6 defendant participants’ funding obligations end, 

7 of those amounts which, at the time of the early 

8 sunset, a defendant participant has paid to the 

9 fund and remains obligated to pay into the 

10 fund. 

Year After Enactment In Which 

Defendant Participant’s Applicable 

Funding Obligation Ends: Percentage: 

2 ............................................................................................... 67.06

3 ............................................................................................... 86.72

4 ............................................................................................... 96.55

5 ............................................................................................... 102.45

6 ............................................................................................... 90.12

7 ............................................................................................... 81.32

8 ............................................................................................... 74.71

9 ............................................................................................... 69.58

10 ............................................................................................. 65.47

11 ............................................................................................. 62.11

12 ............................................................................................. 59.31

13 ............................................................................................. 56.94

14 ............................................................................................. 54.90

15 ............................................................................................. 53.14

16 ............................................................................................. 51.60

17 ............................................................................................. 50.24

18 ............................................................................................. 49.03

19 ............................................................................................. 47.95

20 ............................................................................................. 46.98

21 ............................................................................................. 46.10

22 ............................................................................................. 45.30

23 ............................................................................................. 44.57

24 ............................................................................................. 43.90

25 ............................................................................................. 43.28

26 ............................................................................................. 42.71

27 ............................................................................................. 42.18

28 ............................................................................................. 40.82

29 ............................................................................................. 39.42
332 

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1 (D) REMAINING AGGREGATE PRODUCTS

2 LIMITS.—The term ‘‘remaining aggregate prod3 ucts limits’’ means aggregate limits that apply 

4 to insurance coverage granted under the ‘‘prod5 ucts hazard’’, ‘‘completed operations hazard’’, 

6 or ‘‘Products—Completed Operations Liability’’ 

7 in any comprehensive general liability policy 

8 issued between calendar years 1940 and 1986 

9 to cover injury which occurs in any State, as re10 duced by— 

11 (i) any existing impairment of such 

12 aggregate limits as of the date of enact13 ment of this Act; and 

14 (ii) the resolution of claims for reim15 bursement or coverage of liability or paid 

16 or incurred loss for which notice was pro17 vided to the insurer before the date of en18 actment of this Act. 

19 (E) SCHEDULED PAYMENT AMOUNTS.— 

20 The term ‘‘scheduled payment amounts’’ means 

21 the future payment obligation to the Fund 

22 under this Act from a defendant participant in 

23 the amount established under sections 203 and 

24 204. 
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1 (F) UNEARNED EROSION AMOUNT.—The 

2 term ‘‘unearned erosion amount’’ means, in the 

3 event of any early sunset under section 405(f), 

4 the difference between the deemed erosion 

5 amount and the earned erosion amount. 

6 (2) QUANTUM AND TIMING OF EROSION.— 

7 (A) EROSION UPON ENACTMENT.—The 

8 collective payment obligations to the Fund of 

9 the insurer and reinsurer participants as as10 sessed by the Administrator shall be deemed as 

11 of the date of enactment of this Act to erode re12 maining aggregate products limits available to a 

13 defendant participant only in an amount of 

14 38.1 percent of each defendant participant’s 

15 scheduled payment amount. 

16 (B) NO ASSERTION OF CLAIM.—No insurer 

17 or reinsurer may assert any claim against a de18 fendant participant or captive insurer for insur19 ance, reinsurance, payment of a deductible, or 

20 retrospective premium adjustment arising out 

21 of that insurer’s or reinsurer’s payments to the 

22 Fund or the erosion deemed to occur under this 

23 section. 

24 (C) POLICIES WITHOUT CERTAIN LIMITS

25 OR WITH EXCLUSION.—Except as provided 
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1 under subparagraph (E), nothing in this section 

2 shall require or permit the erosion of any insur3 ance policy or limit that does not contain an ag4 gregate products limit, or that contains an as5 bestos exclusion. 

6 (D) TREATMENT OF CONSOLIDATION

7 ELECTION.—If an affiliated group elects con8 solidation as provided in section 204(f), the 

9 total erosion of limits for the affiliated group 

10 under paragraph (2)(A) shall not exceed 59.64 

11 38.1 percent of the scheduled payment amount 

12 of the single payment obligation for the entire 

13 affiliated group. The total erosion of limits for 

14 any individual defendant participant in the af15 filiated group shall not exceed its individual 

16 share of 59.64 38.1 percent of the affiliated 

17 group’s scheduled payment amount, as meas18 ured by the individual defendant participant’s 

19 percentage share of the affiliated group’s prior 

20 asbestos expenditures. 

21 (E) RULE OF CONSTRUCTION.—Notwith22 standing any other provision of this section, 

23 nothing in this Act shall be deemed to erode re24 maining aggregate products limits of a defend25 ant participant that can demonstrate by a 
335 

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1 reponderance of the evidence that 75 percent of 

2 its prior asbestos expenditures were made in de3 fense or satisfaction of asbestos claims alleging 

4 bodily injury arising exclusively from the expo5 sure to asbestos at premises owned, rented, or 

6 controlled by the defendant participant (a 

7 ‘‘premises defendant’’). In calculating such per8 centage, where expenditures were made in de9 fense or satisfaction of asbestos claims alleging 

10 bodily injury due to exposure to the defendant 

11 participant’s products and to asbestos at prem12 ises owned, rented, or controlled by the defend13 ant participant, half of such expenditures shall 

14 be deemed to be for such premises exposures. If 

15 a defendant participant establishes itself as a 

16 premises defendant, 75 percent of the payments 

17 by such defendant participant shall erode cov18 erage limits, if any, applicable to premises li19 abilities under applicable law. 

20 (3) METHOD OF EROSION.— 

21 (A) ALLOCATION.—The amount of erosion 

22 allocated to each defendant participant shall be 

23 allocated among periods in which policies with 

24 remaining aggregate product limits are avail25 able to that defendant participant pro rata by 
336 

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1 policy period, in ascending order by attachment 

2 point. 

3 (B) OTHER EROSION METHODS.— 

4 (i) IN GENERAL.—Notwithstanding 

5 subparagraph (A), the method of erosion 

6 of any remaining aggregate products limits 

7 which are subject to— 

8 (I) a coverage-in-place or settle9 ment agreement between a defendant 

10 participant and 1 or more insurance 

11 participants as of the date of enact12 ment; or 

13 (II) a final and nonappealable 

14 judgment as of the date of enactment 

15 or resulting from a claim for coverage 

16 or reimbursement pending as of such 

17 date, shall be as specified in such 

18 agreement or judgment with regard to 

19 erosion applicable to such insurance 

20 participants’ policies. 

21 (ii) REMAINING LIMITS.—To the ex22 tent that a final nonappealable judgment 

23 or settlement agreement to which an in24 surer participant and a defendant partici25 pant are parties in effect as of the date of 
337 

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1 enactment of this Act extinguished a de2 fendant participant’s right to seek coverage 

3 for asbestos claims under an insurer par4 ticipant’s policies, any remaining limits in 

5 such policies shall not be considered to be 

6 remaining aggregate products limits under 

7 subsection (a)(1)(A). 

8 (4) RESTORATION OF AGGREGATE PRODUCTS

9 LIMITS UPON EARLY SUNSET.— 

10 (A) RESTORATION.—In the event of an 

11 early sunset, any unearned erosion amount will 

12 be deemed restored as aggregate products limits 

13 available to a defendant participant as of the 

14 date of enactment. 

15 (B) METHOD OF RESTORATION.—The un16 earned erosion amount will be deemed restored 

17 to each defendant participant’s policies in such 

18 a manner that the last limits that were deemed 

19 eroded at enactment under this subsection are 

20 deemed to be the first limits restored upon 

21 early sunset. 

22 (C) TOLLING OF COVERAGE CLAIMS.—In 

23 the event of an early sunset, the applicable stat24 ute of limitations and contractual provisions for 

25 the filing of claims under any insurance policy 
338 

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1 with restored aggregate products limits shall be 

2 deemed tolled after the date of enactment 

3 through the date 6 months after the date of 

4 early sunset. 

5 (5) PAYMENTS BY DEFENDANT PARTICIPANT.— 

6 Payments made by a defendant participant shall be 

7 deemed to erode, exhaust, or otherwise satisfy appli8 cable self-insured retentions, deductibles, retrospec9 tively rated premiums, and limits issued by non10 participating insolvent or captive insurance compa11 nies. Reduction of remaining aggregate limits under 

12 this subsection shall not limit the right of a defend13 ant participant to collect from any insurer not a par14 ticipant. 

15 (6) EFFECT ON OTHER INSURANCE CLAIMS.— 

16 Other than as specified in this subsection, this Act 

17 does not alter, change, modify, or affect insurance 

18 for claims other than asbestos claims. 

19 (b) DISPUTE RESOLUTION PROCEDURE.— 

20 (1) ARBITRATION.—The parties to a dispute re21 garding the erosion of insurance coverage limits 

22 under this section may agree in writing to settle 

23 such dispute by arbitration. Any such provision or 

24 agreement shall be valid, irrevocable, and enforce-
339 

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1 able, except for any grounds that exist at law or in 

2 equity for revocation of a contract. 

3 (2) TITLE 9, UNITED STATES CODE.—Arbitra4 tion of such disputes, awards by arbitrators, and 

5 confirmation of awards shall be governed by title 9, 

6 United States Code, to the extent such title is not 

7 inconsistent with this section. In any such arbitra8 tion proceeding, the erosion principles provided for 

9 under this section shall be binding on the arbitrator, 

10 unless the parties agree to the contrary. 

11 (3) FINAL AND BINDING AWARD.—An award by 

12 an arbitrator shall be final and binding between the 

13 parties to the arbitration, but shall have no force or 

14 effect on any other person. The parties to an arbi15 tration may agree that in the event a policy which 

16 is the subject matter of an award is subsequently de17 termined to be eroded in a manner different from 

18 the manner determined by the arbitration in a judg19 ment rendered by a court of competent jurisdiction 

20 from which no appeal can or has been taken, such 

21 arbitration award may be modified by any court of 

22 competent jurisdiction upon application by any party 

23 to the arbitration. Any such modification shall gov24 ern the rights and obligations between such parties 

25 after the date of such modification. 
340 

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1 (c) EFFECT ON NONPARTICIPANTS.— 

2 (1) IN GENERAL.—No insurance company or 

3 reinsurance company that is not a participant, other 

4 than a captive insurer, shall be entitled to claim that 

5 payments to the Fund erode, exhaust, or otherwise 

6 limit the nonparticipant’s insurance or reinsurance 

7 obligations. 

8 (2) OTHER CLAIMS.—Nothing in this Act shall 

9 preclude a participant from pursuing any claim for 

10 insurance or reinsurance from any person that is not 

11 a participant other than a captive insurer. 

12 (d) FINITE RISK POLICIES NOT AFFECTED.— 

13 (1) IN GENERAL.—Notwithstanding any other 

14 provision of this Act, except subject to section 

15 212(a)(1)(D), this Act shall not alter, affect or im16 pair any rights or obligations of— 

17 (A) any party to an insurance contract 

18 that expressly provides coverage for govern19 mental charges or assessments imposed to re20 place insurance or reinsurance liabilities in ef21 fect on the date of enactment of this Act; or 

22 (B) subject to paragraph (2), any person 

23 with respect to any insurance or reinsurance 

24 purchased by a participant after December 31, 

25 1990, that expressly (but not necessarily exclu-
341 

S 852 RS 

1 sively) provides coverage for asbestos liabilities, 

2 including those policies commonly referred to as 

3 ‘‘finite risk’’ policies. 

4 (2) LIMITATION.—No person may assert that 

5 any amounts paid to the Fund in accordance with 

6 this Act are covered by any policy described under 

7 paragraph (1)(B) purchased by a defendant partici8 pant, unless such policy specifically provides cov9 erage for required payments to a Federal trust fund 

10 established by a Federal statute to resolve asbestos 

11 injury claims. 

12 (e) EFFECT ON CERTAIN INSURANCE AND REINSUR13 ANCE CLAIMS.— 

14 (1) NO COVERAGE FOR FUND ASSESSMENTS.— 

15 No Subject to section 212(a)(1)(D), no participant or 

16 captive insurer may pursue an insurance or reinsur17 ance claim against another participant or captive in18 surer for payments to the Fund required under this 

19 Act, except under a contract written agreement spe20 cifically providing insurance or reinsurance , reinsur21 ance, or other reimbursement for required payments 

22 to a Federal trust fund established by a Federal 

23 statute to resolve asbestos injury claims or, where 

24 applicable, under finite risk policies under subsection 

25 (d). 
342 

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1 (2) CERTAIN INSURANCE ASSIGNMENTS VOID2 ED.—Any assignment of any rights to insurance cov3 erage for asbestos claims to any person who has as4 serted an asbestos claim before the date of enact5 ment of this Act, or to any trust, person, or other 

6 entity not part of an affiliated group as defined in 

7 section 201(1) of this Act established or appointed 

8 for the purpose of paying asbestos claims which were 

9 asserted before such date of enactment, or by any 

10 Tier I defendant participant, before any sunset of 

11 this Act, shall be null and void. This subsection shall 

12 not void or affect in any way any assignments of 

13 rights to insurance coverage other than to asbestos 

14 claimants or to trusts, persons, or other entities not 

15 part of an affiliated group as defined in section 

16 201(1) of this Act established or appointed for the 

17 purpose of paying asbestos claims, or by Tier I de18 fendant participants. 

19 (3) INSURANCE CLAIMS PRESERVED.—Notwith20 standing any other provision of this Act, this Act 

21 shall not alter, affect, or impair any rights or obliga22 tions of any person with respect to any insurance or 

23 reinsurance for amounts that any person pays, has 

24 paid, or becomes legally obligated to pay in respect 

25 of asbestos or other claims, including claims filed, 
343 

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1 pursued, or revived under section 405(g), except to 

2 the extent that— 

3 (A) such person pays or becomes legally 

4 obligated to pay claims that are superseded by 

5 section 403; 

6 (A) such claims are preempted, barred, or 

7 superseded by section 403; 

8 (B) any such rights or obligations of such 

9 person with respect to insurance or reinsurance 

10 are prohibited by paragraph (1) or (2) of sub11 section (e); or 

12 (C) the limits of insurance otherwise avail13 able to such participant in respect of asbestos 

14 claims are deemed to be eroded under sub15 section (a). 

16 SEC. 405. ANNUAL REPORT OF THE ADMINISTRATOR AND 

17 SUNSET OF THE ACT. 

18 (a) IN GENERAL.—The Administrator shall submit 

19 an annual report to the Committee on the Judiciary of 

20 the Senate and the Committee on the Judiciary of the 

21 House of Representatives on the operation of the Asbestos 

22 Injury Claims Resolution Fund within 6 months after the 

23 close of each fiscal year. 

24 (b) CONTENTS OF REPORT.—The annual report sub25 mitted under this subsection shall include an analysis of— 
344 

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1 (1) the claims experience of the program during 

2 the most recent fiscal year, including— 

3 (A) the number of claims made to the Of4 fice and a description of the types of medical 

5 diagnoses and asbestos exposures underlying 

6 those claims; 

7 (B) the number of claims denied by the 

8 Office and a description of the types of medical 

9 diagnoses and asbestos exposures underlying 

10 those claims, and a general description of the 

11 reasons for their denial; 

12 (C) a summary of the eligibility determina13 tions made by the Office under section 114; 

14 (D) a summary of the awards made from 

15 the Fund, including the amount of the awards; 

16 and 

17 (E) for each eligible condition, a statement 

18 of the percentage of asbestos claimants who 

19 filed claims during the prior calendar year and 

20 were determined to be eligible to receive com21 pensation under this Act, who have received the 

22 compensation to which such claimants are enti23 tled according to section 131; 

24 (2) the administrative performance of the pro25 gram, including— 
345 

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1 (A) the performance of the program in 

2 meeting the time limits prescribed by law and 

3 an analysis of the reasons for any systemic 

4 delays; 

5 (B) any backlogs of claims that may exist 

6 and an explanation of the reasons for such 

7 backlogs; 

8 (C) the costs to the Fund of administering 

9 the program; and 

10 (D) any other significant factors bearing 

11 on the efficiency of the program; 

12 (3) the financial condition of the Fund, includ13 ing— 

14 (A) statements of the Fund’s revenues, ex15 penses, assets, and liabilities; 

16 (B) the identity of all participants, the 

17 funding allocations of each participant, and the 

18 total amounts of all payments to the Fund; 

19 (C) a list of all financial hardship or in20 equity adjustments applied for during the fiscal 

21 year, and the adjustments that were made dur22 ing the fiscal year; 

23 (D) a statement of the investments of the 

24 Fund; and 
346 

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1 (E) a statement of the borrowings of the 

2 Fund; 

3 (4) the financial prospects of the Fund, includ4 ing— 

5 (A) an estimate of the number and types 

6 of claims, the amount of awards, and the par7 ticipant payment obligations for the next fiscal 

8 year; 

9 (B) an analysis of the financial condition 

10 of the Fund, including an estimation of the 

11 Fund’s ability to pay claims for the subsequent 

12 5 years in full as and when required, an evalua13 tion of the Fund’s ability to retire its existing 

14 debt and assume additional debt, and an eval15 uation of the Fund’s ability to satisfy other ob16 ligations under the program; and 

17 (C) a report on any changes in projections 

18 made in earlier annual reports or sunset anal19 yses regarding the Fund’s ability to meet its fi20 nancial obligations; 

21 (5) any recommendations from the Advisory 

22 Committee on Asbestos Disease Compensation and 

23 the Medical Advisory Committee of the Fund to im24 prove the diagnostic, exposure, and medical criteria 

25 so as to pay only those claimants whose injuries are 
347 

S 852 RS 

1 caused by exposure to asbestos those claimants who 

2 suffer from injuries for which exposure to asbestos was 

3 a substantial contributing factor; 

4 (6) a summary of the results of audits con5 ducted under section 115; and 

6 (7) a summary of prosecutions under section 

7 1348 of title 18, United States Code (as added by 

8 this Act). 

9 (c) CLAIMS ANALYSIS.—If the Administrator con10 cludes, on the basis of the annual report submitted under 

11 this section, that the Fund is compensating claims for in12 juries that are not caused by exposure to asbestos and 

13 compensating such claims may, currently or in the future, 

14 undermine the Fund’s ability to compensate persons with 

15 injuries that are caused by exposure to asbestos, the Ad16 ministrator shall include in the report an analysis of the 

17 reasons for the situation, a description of the range of rea18 sonable alternatives for responding to the situation, and 

19 a recommendation as to which alternative best serves the 

20 interest of claimants and the public. The report shall in21 clude a description of changes in the diagnostic, exposure, 

22 or medical criteria of section 121 that the Administrator 

23 believes may be necessary to protect the Fund from com24 pensating claims not caused by exposure to asbestos. 
348 

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1 (c) CLAIMS ANALYSIS AND VERIFICATION OF UNAN2 TICIPATED CLAIMS.— 

3 (1) IN GENERAL.—If the Administrator con4 cludes, on the basis of the annual report submitted 

5 under this section, that— 

6 (A) the average number of claims that qual7 ify for compensation under a claim level or des8 ignation exceeds 125 percent of the number of 

9 claims expected to qualify for compensation 

10 under that claim level or designation in the most 

11 recent Congressional Budget Office estimate of 

12 asbestos-injury claims for any 3-year period, the 

13 Administrator shall conduct a review of a statis14 tically significant sample of claims qualifying 

15 for compensation under the appropriate claim 

16 level or designation; or 

17 (B) the average number of claims that qual18 ify for compensation under a claim level or des19 ignation is less than 75 percent of the number of 

20 claims expected to qualify for compensation 

21 under that claim level or designation in the most 

22 recent Congressional Budget Office estimate of 

23 asbestos-injury claims for any 3-year period, the 

24 Administrator shall conduct a review of a statis25 tically significant sample of claims deemed ineli-
349 

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1 gible for compensation under the appropriate 

2 claim level or designation. 

3 (2) DETERMINATIONS.—The Administrator shall 

4 examine the best available medical evidence and any 

5 recommendation made under subsection (b)(5) in 

6 order to determine which 1 or more of the following 

7 is true: 

8 (A) Without a significant number of excep9 tions, all of the claimants who qualified for com10 pensation under the claim level or designation 

11 suffer from an injury or disease for which expo12 sure to asbestos was a substantial contributing 

13 factor. 

14 (B) A significant number of claimants who 

15 qualified for compensation under the claim level 

16 or designation do not suffer from an injury or 

17 disease for which exposure to asbestos was a sub18 stantial contributing factor. 

19 (C) A significant number of claimants who 

20 were denied compensation under the claim level 

21 of designation did suffer from an injury or dis22 ease for which exposure to asbestos was a sub23 stantial contributing factor. 

24 (D) The Congressional Budget Office projec25 tions underestimated or overestimated the actual 
350 

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1 number of persons who suffer from an injury or 

2 disease for which exposure to asbestos was a sub3 stantial contributing factor. 

4 (3) RECOMMENDATIONS CONCERNING CLAIMS

5 CRITERIA.—If the Administrator determines that a 

6 significant number of the claimants who qualified for 

7 compensation under the claim level under review do 

8 not suffer from an injury or disease for which expo9 sure to asbestos was a substantial contributing factor, 

10 or that a significant number of the claimants who 

11 were denied compensation under the claim level under 

12 review suffered from an injury or disease for which 

13 exposure to asbestos was a substantial contributing 

14 factor, the Administrator shall recommend to Con15 gress, under subsection (e), changes to the compensa16 tion criteria in order to ensure that the Fund pro17 vides compensation for injury or disease for which ex18 posure to asbestos was a substantial contributing fac19 tor, but does not provide compensation to claimants 

20 who do not suffer from an injury or disease for which 

21 asbestos exposure was a substantial contributing fac22 tor. 

23 (d) RECOMMENDATIONS OF ADMINISTRATOR AND AD24 VISORY COMMITTEE.— 
351 

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1 (1) REFERRAL.—If the Administrator rec2 ommends changes to this Act under subsection (c), the 

3 recommendations and accompanying analysis shall be 

4 referred to the Advisory Committee on Asbestos Dis5 ease Compensation established under section 102 (in 

6 this subsection referred to as the ‘‘Advisory Com7 mittee’’). 

8 (2) ADVISORY COMMITTEE RECOMMENDATIONS.— 

9 The Advisory Committee shall hold expedited public 

10 hearings on the alternatives and recommendations of 

11 the Administrator and make its own recommenda12 tions for reform of the program under titles I and II. 

13 (3) TRANSMITTAL TO CONGRESS.—Not later than 

14 90 days after receiving the recommendations of the 

15 Administrator, the Advisory Committee shall trans16 mit the recommendations of the Administrator and 

17 the recommendations of the Advisory Committee to 

18 the Committee on the Judiciary of the Senate and the 

19 Committee on the Judiciary of the House of Rep20 resentatives. 

21 (d)(e) SHORTFALL ANALYSIS.— 

22 (1) IN GENERAL.— 

23 (A) ANALYSIS.—If the Administrator con24 cludes, on the basis of the information con25 tained in the annual report submitted under 
352 

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1 this section, that the Fund may not be able to 

2 pay claims as such claims become due at any 

3 time within the next 5 years, the Administrator 

4 shall include in the report an analysis of the 

5 reasons for the situation, an estimation of when 

6 the Fund will no longer be able to pay claims 

7 as such claims become due, a description of the 

8 range of reasonable alternatives for responding 

9 to the situation, and a recommendation as to 

10 which alternative best serves the interest of 

11 claimants and the public. The report may in12 clude a description of changes in the diagnostic, 

13 exposure, or medical criteria of section 121 that 

14 the Administrator believes may be necessary to 

15 protect the Fund. 

16 (B) RANGE OF ALTERNATIVES.—The 

17 range of alternatives under subparagraph (A) 

18 may include— 

19 (i) triggering the termination of this 

20 Act under subsection (f) at any time after 

21 the date of enactment of this Act; and 

22 (ii) reform of the program set forth in 

23 titles I and II of this Act (including 

24 changes in the diagnostic, exposure, or 

25 medical criteria, changes in the enforce-
353 

S 852 RS 

1 ment or application of those criteria, 

2 changes in the timing of payments, 

3 changes in contributions by defendant par4 ticipants, insurer participants (or both 

5 such participants), or changes in award 

6 values). 

7 (C) INSURER SHORTFALL ASSESSMENTS.— 

8 Beginning in year 6 of the life of the Fund, if 

9 the Administrator determines that a shortfall in 

10 payment of the annual amounts required to be 

11 paid by insurer participants under section 

12 212(a)(3)(C) is the substantial factor that would 

13 cause the Administrator to recommend the termi14 nation of this Act under subsection (f), then the 

15 Administrator may impose shortfall assessments 

16 on insurer participants in addition to the pay17 ments imposed under section 212, except that the 

18 Administrator shall not impose such assessments 

19 if the additional amounts would not be sufficient 

20 to permit the Administrator to avoid recom21 mending termination of this Act. During any 

22 given year, the total of such shortfall assessments 

23 shall not exceed the amount by which, during the 

24 prior year, total payments by insurer partici25 pants fell short of the aggregate amounts re-
354 

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1 quired to be paid under section 212(a)(3)(C). 

2 Shortfall assessments shall be allocated among 

3 insurer participants using the methodology 

4 adopted by the Asbestos Insurers Commission 

5 under section 212(a)(1)(B). 

6 (2) CONSIDERATIONS.—In formulating rec7 ommendations, the Administrator shall take into ac8 count the reasons for any shortfall, actual or pro9 jected, which may include— 

10 (A) financial factors, including return on 

11 investments, borrowing capacity, interest rates, 

12 ability to collect contributions, and other rel13 evant factors; 

14 (B) the operation of the Fund generally, 

15 including administration of the claims proc16 essing, the ability of the Administrator to col17 lect contributions from participants, potential 

18 problems of fraud, the adequacy of the criteria 

19 to rule out idiopathic mesothelioma, and inad20 equate flexibility to extend the timing of pay21 ments; 

22 (C) the appropriateness of the diagnostic, 

23 exposure, and medical criteria, including the 

24 adequacy of the criteria to rule out idiopathic 

25 mesothelioma; 
355 

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1 (D) the actual incidence of asbestos-related 

2 diseases, including mesothelioma, based on epi3 demiological studies and other relevant data; 

4 (E) compensation of diseases with alter5 native causes; and 

6 (F) other factors that the Administrator 

7 considers relevant. 

8 (3) RECOMMENDATION OF TERMINATION.—Any 

9 recommendation of termination should include a 

10 plan for winding up the affairs of the Fund (and the 

11 program generally) within a defined period, includ12 ing paying in full all claims resolved at the time the 

13 report is prepared. Any plan under this paragraph 

14 shall provide for priority in payment to the claim15 ants with the most serious illnesses. 

16 (4) RESOLVED CLAIMS.—For purposes of this 

17 section, a claim shall be deemed resolved when the 

18 Administrator has determined the amount of the 

19 award due the claimant, and either the claimant has 

20 waived judicial review or the time for judicial review 

21 has expired. 

22 (e) RECOMMENDATIONS OF ADMINISTRATOR AND

23 COMMISSION.— 

24 (1) IN GENERAL.—If the Administrator rec25 ommends changes to this Act under subsection (c), 
356 

S 852 RS 

1 the recommendations and accompanying analysis 

2 shall be referred to a special commission consisting 

3 of the Attorney General, the Secretary of Labor, the 

4 Secretary of Health and Human Services, the Sec5 retary of the Treasury, and the Secretary of Com6 merce, or their designees. The Commission shall 

7 hold expedited public hearings on the Administra8 tor’s alternatives and recommendations and then 

9 make its own recommendations for reform of the 

10 program set forth in titles I and II of this Act. 

11 Within 180 days after receiving the Administrator’s 

12 recommendations, the Commission shall transmit its 

13 own recommendations to the Congress in the same 

14 manner as set forth in subsection (a). 

15 (2) REFERRAL.—If the Administrator rec16 ommends changes to, or termination of, this Act 

17 under subsection (d), the recommendations and ac18 companying analysis shall be referred to the Com19 mission. The Commission shall hold expedited public 

20 hearings on the Administrator’s alternatives and rec21 ommendations and then make its own recommenda22 tions for reform of the program set forth in titles I 

23 and II of this Act. Within 180 days after receiving 

24 the Administrator’s recommendations, the Commis25 sion shall transmit its own recommendations to Con-
357 

S 852 RS 

1 gress in the same manner as set forth in subsection 

2 (a). 

3 (f) SUNSET OF ACT.— 

4 (1) IN GENERAL.— 

5 (A) TERMINATION.—Subject to paragraph 

6 (4), titles I (except subtitle A) and II and sec7 tions 403 and 404(e)(2) shall terminate as pro8 vided under paragraph (2), if the Adminis9 trator— 

10 (i) has begun the processing of claims; 

11 and 

12 (ii) as part of the review conducted to 

13 prepare an annual report under this sec14 tion, determines that if any additional 

15 claims are resolved, the Fund will not have 

16 sufficient resources when needed to pay 

17 100 percent of all resolved claims while 

18 also meeting all other obligations of the 

19 Fund under this Act, including the pay20 ment of— 

21 (I) debt repayment obligations; 

22 and 

23 (II) remaining obligations to the 

24 asbestos trust of a debtor and the 

25 class action trust. 
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1 (B) REMAINING OBLIGATIONS.—For pur2 poses of subparagraph (A)(ii), the remaining 

3 obligations to the asbestos trust of the debtor 

4 and the class action trust shall be determined 

5 by the Administrator by assuming that, instead 

6 of a lump-sum payment, such trust had trans7 ferred its assets to the Fund on an annual 

8 basis, taking into consideration relevant factors, 

9 including the most recent projections made by 

10 the trust’s actuary before the date of enactment 

11 of this Act of the amount and timing of future 

12 claim payments and administrative and oper13 ating expenses. 

14 (2) EFFECTIVE DATE OF TERMINATION.—A 

15 termination under paragraph (1) shall take effect 

16 180 days after the date of a determination of the 

17 Administrator under paragraph (1) and shall apply 

18 to all asbestos claims that have not been resolved by 

19 the Fund as of the date of the determination. 

20 (3) RESOLVED CLAIMS.—If a termination takes 

21 effect under this subsection, all resolved claims shall 

22 be paid in full by the Fund. 

23 (4) EXTINGUISHED CLAIMS.—A claim that is 

24 extinguished under the statute of limitations provi-
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1 sions in section 113(b) is not revived at the time of 

2 sunset under this subsection. 

3 (5) CONTINUED FUNDING.—If a termination 

4 takes effect under this subsection, participants will 

5 still be required to make payments as provided 

6 under subtitles A and B of title II. If the full 

7 amount of payments required by title II is not nec8 essary for the Fund to pay claims that have been re9 solved as of the date of termination, pay the Fund’s 

10 debt and obligations to the asbestos trusts and class 

11 action trust, and support the Fund’s continued oper12 ation as needed to pay such claims, debt, and obliga13 tions, the Administrator may reduce such payments. 

14 Any such reductions shall be allocated among par15 ticipants in approximately the same proportion as 

16 the liability under subtitles A and B of title II. 

17 (6) SUNSET CLAIMS.— 

18 (A) DEFINITIONS.—In this paragraph— 

19 (i) the term ‘‘sunset claims’’ means 

20 claims filed with the Fund, but not yet re21 solved, when this Act has terminated; and 

22 (ii) the term ‘‘sunset claimants’’ 

23 means persons asserting sunset claims. 

24 (B) IN GENERAL.—If a termination takes 

25 effect under this subsection, the applicable stat-
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1 ute of limitations for the filing of sunset claims 

2 under subsection (g) shall be tolled for any past 

3 or pending sunset claimants while such claim4 ants were pursuing claims filed under this Act. 

5 For those claimants who decide to pursue a 

6 sunset claim in accordance with subsection (g), 

7 the applicable statute of limitations shall apply, 

8 except that claimants who filed a claim against 

9 the Fund under this Act before the date of ter10 mination shall have 2 years after the date of 

11 termination to file a sunset claim in accordance 

12 with subsection (g). 

13 (7) ASBESTOS TRUSTS AND CLASS ACTION

14 TRUST.—On and after the date of termination under 

15 this subsection, the trust distribution program of 

16 any asbestos trust and the class action trust shall be 

17 replaced with the medical criteria requirements of 

18 section 121. 

19 (8) PAYMENT TO ASBESTOS TRUSTS AND CLASS

20 ACTION TRUST.—The amounts determined under 

21 paragraph (1)(B) for payment to the asbestos trusts 

22 and the class action trust shall be transferred to the 

23 respective asbestos trusts of the debtor and the class 

24 action trust within 90 days. 

25 (g) NATURE OF CLAIM AFTER SUNSET.— 
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1 (1) IN GENERAL.— 

2 (A) RELIEF.—On and after the date of 

3 termination under subsection (f), any individual 

4 with an asbestos claim who has not previously 

5 had a claim resolved by the Fund, may in a 

6 civil action obtain relief in damages subject to 

7 the terms and conditions under this subsection 

8 and paragraph (6) of subsection (f). 

9 (B) RESOLVED CLAIMS.—An individual 

10 who has had a claim resolved by the Fund may 

11 not pursue a court action, except that an indi12 vidual who received an award for a nonmalig13 nant disease (Levels I through V) from the 

14 Fund may assert a claim for a subsequent or 

15 progressive disease under this subsection, unless 

16 the disease was diagnosed or the claimant had 

17 discovered facts that would have led a reason18 able person to obtain such a diagnosis before 

19 the date on which the previous claim against 

20 the Fund was disposed. 

21 (C) MESTHELIOMA CLAIM.—An individual 

22 who received an award for a nonmalignant or 

23 malignant disease (except mesothelioma) (Lev24 els I through VIII) from the Fund may assert 

25 a claim for mesothelioma under this subsection, 
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1 unless the mesothelioma was diagnosed or the 

2 claimant had discovered facts that would have 

3 led a reasonable person to obtain such a diag4 nosis before the date on which the nonmalig5 nant or other malignant claim was disposed. 

6 (2) EXCLUSIVE REMEDY.—As of the effective 

7 date of a termination of this Act under subsection 

8 (f), an action under paragraph (1) shall be the ex9 clusive remedy for any asbestos claim that might 

10 otherwise exist under Federal, State, or other law, 

11 regardless of whether such claim arose before or 

12 after the date of enactment of this Act or of the ter13 mination of this Act, except that claims against the 

14 Fund that have been resolved before the date of the 

15 termination determination under subsection (f) may 

16 be paid by the Fund. 

17 (3) VENUE.— 

18 (A) IN GENERAL.—Actions under para19 graph (1) may be brought in— 

20 (i) any Federal district court; 

21 (ii) any State court in the State where 

22 the claimant resides; or 

23 (iii) any State court in a State where 

24 the asbestos exposure occurred. 
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1 (B) DEFENDANTS NOT FOUND.—If any 

2 defendant cannot be found in the State de3 scribed in clause (ii) or (iii) of subparagraph 

4 (A), the claim may be pursued only against that 

5 defendant in the Federal district court or the 

6 State court located within any State in which 

7 the defendant may be found. 

8 (C) DETERMINATION OF MOST APPRO9 PRIATE FORUM.—If a person alleges that the 

10 asbestos exposure occurred in more than one 

11 county (or Federal district), the trial court shall 

12 determine which State and county (or Federal 

13 district) is the most appropriate forum for the 

14 claim. If the court determines that another 

15 forum would be the most appropriate forum for 

16 a claim, the court shall dismiss the claim. Any 

17 otherwise applicable statute of limitations shall 

18 be tolled beginning on the date the claim was 

19 filed and ending on the date the claim is dis20 missed under this subparagraph. 

21 (D) STATE VENUE REQUIREMENTS.— 

22 Nothing in this paragraph shall preempt or su23 persede any State’s law relating to venue re24 quirements within that State which are more 

25 restrictive. 
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1 (4) CLASS ACTION TRUSTS.—Notwithstanding 

2 any other provision of this section— 

3 (A) after the assets of any class action 

4 trust have been transferred to the Fund in ac5 cordance with section 203(b)(5), no asbestos 

6 claim may be maintained with respect to asbes7 tos liabilities arising from the operations of a 

8 person with respect to whose liabilities for as9 bestos claims a class action trust has been es10 tablished, whether such claim names the person 

11 or its successors or affiliates as defendants; and 

12 (B) if a termination takes effect under 

13 subsection (f), the exclusive remedy for all as14 bestos claims (including sunset claims and 

15 claims first arising or first presented after ter16 mination of the Fund) arising from such oper17 ations will be a claim against the class action 

18 trust to which the Administrator has trans19 ferred funds under subsection (f)(8) to pay as20 bestos claims, if necessary in proportionally re21 duced amounts. 

22 (5) EXPERT WITNESSES.—If scientific, technical, 

23 or other specialized knowledge will assist the trier of 

24 fact to understand the evidence or to determine a fact 

25 in issue in an action permitted under paragraph (1), 
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1 a witness qualified as an expert by knowledge, skill, 

2 experience, training, or education, may testify thereto 

3 in the form of an opinion or otherwise, if— 

4 (A) the testimony is based upon sufficient 

5 facts or data; 

6 (B) the testimony is the product of reliable 

7 principles and methods; and 

8 (C) the witness has applied the principles 

9 and methods reliably to the facts of the case. 

10 SEC. 406. RULES OF CONSTRUCTION RELATING TO LIABIL11 ITY OF THE UNITED STATES GOVERNMENT. 

12 (a) CAUSES OF ACTIONS.—Except as otherwise spe13 cifically provided in this Act, nothing in this Act shall be 

14 construed as creating a cause of action against the United 

15 States Government, any entity established under this Act, 

16 or any officer or employee of the United States Govern17 ment or such entity. 

18 (b) FUNDING LIABILITY.—Nothing in this Act shall 

19 be construed to— 

20 (1) create any obligation of funding from the 

21 United States Government, other than the funding 

22 for personnel and support as provided under this 

23 Act; or including any borrowing authorized under 

24 section 221(b)(2); or 
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1 (2) obligate the United States Government to 

2 pay any award or part of an award, if amounts in 

3 the Fund are inadequate. 

4 SEC. 407. RULES OF CONSTRUCTION. 

5 (a) LIBBY, MONTANA CLAIMANTS.—Nothing in this 

6 Act shall preclude the formation of a fund for the payment 

7 of eligible medical expenses related to treating asbestos8 related disease for current and former residents of Libby, 

9 Montana. The payment of any such medical expenses shall 

10 not be collateral source compensation as defined under 

11 section 134(a). 

12 (b) HEALTHCARE FROM PROVIDER OF CHOICE.— 

13 Nothing in this Act shall be construed to preclude any eli14 gible claimant from receiving healthcare from the provider 

15 of their choice. 

16 SEC. 408. VIOLATIONS OF ENVIRONMENTAL HEALTH AND 

17 SAFETY REQUIREMENTS. 

18 (a) ASBESTOS IN COMMERCE.—If the Administrator 

19 receives information concerning conduct occurring after 

20 the date of enactment of this Act that may have been a 

21 violation of standards issued by the Environmental Protec22 tion Agency under the Toxic Substances Control Act (15 

23 U.S.C. 2601 et seq.), relating to the manufacture, impor24 tation, processing, disposal, and distribution in commerce 

25 of asbestos-containing products, the Administrator shall 
367 

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1 refer the matter in writing within 30 days after receiving 

2 that information to the Administrator of the Environ3 mental Protection Agency and the United States attorney 

4 for possible civil or criminal penalties, including those 

5 under section 17 of the Toxic Substances Control Act (15 

6 U.S.C. 2616), and to the appropriate State authority with 

7 jurisdiction to investigate asbestos matters. 

8 (b) ASBESTOS AS AIR POLLUTANT.—If the Adminis9 trator receives information concerning conduct occurring 

10 after the date of enactment of this Act that may have been 

11 a violation of standards issued by the Environmental Pro12 tection Agency under the Clean Air Act (42 U.S.C. 7401 

13 et seq.), relating to asbestos as a hazardous air pollutant, 

14 the Administrator shall refer the matter in writing within 

15 30 days after receiving that information to the Adminis16 trator of the Environmental Protection Agency and the 

17 United States attorney for possible criminal and civil pen18 alties, including those under section 113 of the Clean Air 

19 Act (42 U.S.C. 7413), and to the appropriate State au20 thority with jurisdiction to investigate asbestos matters. 

21 (c) OCCUPATIONAL EXPOSURE.—If the Adminis22 trator receives information concerning conduct occurring 

23 after the date of enactment of this Act that may have been 

24 a violation of standards issued by the Occupational Safety 

25 and Health Administration under the Occupational Safety 
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1 and Health Act of 1970 (29 U.S.C. 651 et seq.), relating 

2 to occupational exposure to asbestos, the Administrator 

3 shall refer the matter in writing within 30 days after re4 ceiving that information and refer the matter to the Sec5 retary of Labor or the appropriate State agency with au6 thority to enforce occupational safety and health stand7 ards, for investigation for possible civil or criminal pen8 alties under section 17 of the Occupational Safety and 

9 Health Act of 1970 (29 U.S.C. 666). 

10 (d) ENHANCED CRIMINAL PENALTIES FOR WILLFUL

11 VIOLATIONS OF OCCUPATIONAL STANDARDS FOR ASBES12 TOS.—Section 17(e) of the Occupational Safety and 

13 Health Act of 1970 (29 U.S.C. 656(e)) is amended— 

14 (1) by striking ‘‘Any’’ and inserting ‘‘(1) Ex15 cept as provided in paragraph (2), any’’; and 

16 (2) by adding at the end the following: 

17 ‘‘(2) Any employer who willfully violates any standard 

18 issued under section 6 with respect to the control of occu19 pational exposure to asbestos, shall upon conviction be 

20 punished by a fine in accordance with section 3571 of title 

21 18, United States Code, or by imprisonment for not more 

22 than 5 years, or both, except that if the conviction is for 

23 a violation committed after a first conviction of such per24 son, punishment shall be by a fine in accordance with sec-
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1 tion 3571 of title 18, United States Code, or by imprison2 ment for not more than 10 years, or both.’’. 

3 (e) CONTRIBUTIONS TO THE ASBESTOS TRUST FUND

4 BY EPA AND OSHA ASBESTOS VIOLATORS.— 

5 (1) IN GENERAL.—The Administrator shall as6 sess employers or other individuals determined to 

7 have violated asbestos statutes, standards, or regula8 tions administered by the Department of Labor, the 

9 Environmental Protection Agency, and their State 

10 counterparts, for contributions to the Asbestos In11 jury Claims Resolution Fund (in this section re12 ferred to as the ‘‘Fund’’). 

13 (2) IDENTIFICATION OF VIOLATORS.—Each 

14 year, the Administrator shall— 

15 (A) in consultation with the Assistant Sec16 retary of Labor for Occupational Safety and 

17 Health, identify all employers that, during the 

18 previous year, were subject to final orders find19 ing that they violated standards issued by the 

20 Occupational Safety and Health Administration 

21 for control of occupational exposure to asbestos 

22 (29 C.F.R. 1910.1001, 1915.1001, and 

23 1926.1101) or the equivalent asbestos stand24 ards issued by any State under section 18 of 
370 

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1 the Occupational Safety and Health Act (29 

2 U.S.C. 668); and 

3 (B) in consultation with the Administrator 

4 of the Environmental Protection Agency, iden5 tify all employers or other individuals who, dur6 ing the previous year, were subject to final or7 ders finding that they violated asbestos regula8 tions administered by the Environmental Pro9 tection Agency (including the National Emis10 sions Standard for Asbestos established under 

11 the Clean Air Act (42 U.S.C. 7401 et seq.), the 

12 asbestos worker protection standards estab13 lished under part 763 of title 40, Code of Fed14 eral Regulations, and the regulations banning 

15 asbestos promulgated under section 501 of this 

16 Act), or equivalent State asbestos regulations. 

17 (3) ASSESSMENT FOR CONTRIBUTION.—The 

18 Administrator shall assess each such identified em19 ployer or other individual for a contribution to the 

20 Fund for that year in an amount equal to— 

21 (A) 2 times the amount of total penalties 

22 assessed for the first violation of occupational 

23 health and environmental statutes, standards, 

24 or regulations; 
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1 (B) 4 times the amount of total penalties 

2 for a second violation of such statutes, stand3 ards, or regulations; and 

4 (C) 6 times the amount of total penalties 

5 for any violations thereafter. 

6 (4) LIABILITY.—Any assessment under this 

7 subsection shall be considered a liability under this 

8 Act. 

9 (5) PAYMENTS.—Each such employer or other 

10 individual assessed for a contribution to the Fund 

11 under this subsection shall make the required con12 tribution to the Fund within 90 days of the date of 

13 receipt of notice from the Administrator requiring 

14 payment. 

15 (6) ENFORCEMENT.—The Administrator is au16 thorized to bring a civil action under section 223(c) 

17 against any employer or other individual who fails to 

18 make timely payment of contributions assessed 

19 under this section. 

20 (f) REVIEW OF FEDERAL SENTENCING GUIDELINES

21 FOR ENVIRONMENTAL CRIMES RELATED TO ASBES22 TOS.—Under section 994 of title 28, United States Code, 

23 and in accordance with this section, the United States 

24 Sentencing Commission shall review and amend, as appro-
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1 priate, the United States Sentencing Guidelines and re2 lated policy statements to ensure that— 

3 (1) appropriate changes are made within the 

4 guidelines to reflect any statutory amendments that 

5 have occurred since the time that the current guide6 line was promulgated; 

7 (2) the base offense level, adjustments, and spe8 cific offense characteristics contained in section 

9 2Q1.2 of the United States Sentencing Guidelines 

10 (relating to mishandling of hazardous or toxic sub11 stances or pesticides; recordkeeping, tampering, and 

12 falsification; and unlawfully transporting hazardous 

13 materials in commerce) are increased as appropriate 

14 to ensure that future asbestos-related offenses re15 flect the seriousness of the offense, the harm to the 

16 community, the need for ongoing reform, and the 

17 highly regulated nature of asbestos; 

18 (3) the base offense level, adjustments, and spe19 cific offense characteristics are sufficient to deter 

20 and punish future activity and are adequate in cases 

21 in which the relevant offense conduct— 

22 (A) involves asbestos as a hazardous or 

23 toxic substance; and 

24 (B) occurs after the date of enactment of 

25 this Act; 
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1 (4) the adjustments and specific offense charac2 teristics contained in section 2B1.1 of the United 

3 States Sentencing Guidelines related to fraud, de4 ceit, and false statements, adequately take into ac5 count that asbestos was involved in the offense, and 

6 the possibility of death or serious bodily harm as a 

7 result; 

8 (5) the guidelines that apply to organizations in 

9 chapter 8 of the United States Sentencing Guide10 lines are sufficient to deter and punish organiza11 tional criminal misconduct that involves the use, 

12 handling, purchase, sale, disposal, or storage of as13 bestos; and 

14 (6) the guidelines that apply to organizations in 

15 chapter 8 of the United States Sentencing Guide16 lines are sufficient to deter and punish organiza17 tional criminal misconduct that involves fraud, de18 ceit, or false statements against the Office of Asbes19 tos Disease Compensation. 

20 SEC. 409. NONDISCRIMINATION OF HEALTH INSURANCE. 

21 (a) DENIAL, TERMINATION, OR ALTERATION OF

22 HEALTH COVERAGE.—No health insurer offering a health 

23 plan may deny or terminate coverage, or in any way alter 

24 the terms of coverage, of any claimant or the beneficiary 

25 of a claimant, on account of the participation of the claim-
374 

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1 ant or beneficiary in a medical monitoring program under 

2 this Act, or as a result of any information discovered as 

3 a result of such medical monitoring. 

4 (b) DEFINITIONS.—In this section: 

5 (1) HEALTH INSURER.—The term ‘‘health in6 surer’’ means— 

7 (A) an insurance company, healthcare 

8 service contractor, fraternal benefit organiza9 tion, insurance agent, third-party administrator, 

10 insurance support organization, or other person 

11 subject to regulation under the laws related to 

12 health insurance of any State; 

13 (B) a managed care organization; or 

14 (C) an employee welfare benefit plan regu15 lated under the Employee Retirement Income 

16 Security Act of 1974 (29 U.S.C. 1001 et seq.). 

17 (2) HEALTH PLAN.—The term ‘‘health plan’’ 

18 means— 

19 (A) a group health plan (as such term is 

20 defined in section 607 of the Employee Retire21 ment Income Security Act of 1974 (29 U.S.C. 

22 1167)), and a multiple employer welfare ar23 rangement (as defined in section 3(4) of such 

24 Act) that provides health insurance coverage; or 
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1 (B) any contractual arrangement for the 

2 provision of a payment for healthcare, including 

3 any health insurance arrangement or any ar4 rangement consisting of a hospital or medical 

5 expense incurred policy or certificate, hospital 

6 or medical service plan contract, or health 

7 maintenance organizing subscriber contract. 

8 (c) CONFORMING AMENDMENTS.— 

9 (1) ERISA.—Section 702(a)(1) of the Em10 ployee Retirement Income Security Act of 1974 (29 

11 U.S.C. 1182(a)(1)), is amended by adding at the 

12 end the following: 

13 ‘‘(I) Participation in a medical monitoring 

14 program under the Fairness in Asbestos Injury 

15 Resolution Act of 2005.’’. 

16 (2) PUBLIC SERVICE HEALTH ACT.—Section 

17 2702(a)(1) of the Public Health Service Act (42 

18 U.S.C. 300gg–1(a)(1)) is amended by adding at the 

19 end the following: 

20 ‘‘(I) Participation in a medical monitoring 

21 program under the Fairness in Asbestos Injury 

22 Resolution Act of 2005.’’. 

23 (3) INTERNAL REVENUE CODE OF 1986.—Sec24 tion 9802(a)(1) of the Internal Revenue Code of 

25 1986 is amended by adding at the end the following: 
376 

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1 ‘‘(I) Participation in a medical monitoring 

2 program under the Fairness in Asbestos Injury 

3 Resolution Act of 2005.’’. 

4 TITLE V—ASBESTOS BAN 

5 SEC. 501. PROHIBITION ON ASBESTOS CONTAINING PROD6 UCTS. 

7 (a) IN GENERAL.—Title II of the Toxic Substances 

8 Control Act (15 U.S.C. 2641 et seq.) is amended— 

9 (1) by inserting before section 201 (15 U.S.C. 

10 2641) the following: 

11 ‘‘Subtitle A—General Provisions’’; 

12 and 

13 (2) by adding at the end the following: 

14 ‘‘Subtitle B—Ban of Asbestos 

15 Containing Products 

16 ‘‘SEC. 221. BAN OF ASBESTOS CONTAINING PRODUCTS. 

17 ‘‘(a) DEFINITIONS.—In this chapter: 

18 ‘‘(1) ADMINISTRATOR.—The term ‘Adminis19 trator’ means the Administrator of the Environ20 mental Protection Agency. 

21 ‘‘(2) ASBESTOS.—The term ‘asbestos’ in22 cludes— 

23 ‘‘(A) chrysotile; 

24 ‘‘(B) amosite; 

25 ‘‘(C) crocidolite; 
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1 ‘‘(D) tremolite asbestos; 

2 ‘‘(E) winchite asbestos; 

3 ‘‘(F) richterite asbestos; 

4 ‘‘(G) anthophyllite asbestos; 

5 ‘‘(H) actinolite asbestos; 

6 ‘‘(I) amphibole asbestos asbestiform 

7 amphibole minerals; and 

8 ‘‘(J) any of the minerals listed under sub9 paragraphs (A) through (I) that has been 

10 chemically treated or altered, and any 

11 asbestiform variety, type, or component thereof. 

12 ‘‘(3) ASBESTOS CONTAINING PRODUCT.—The 

13 term ‘asbestos containing product’ means any prod14 uct (including any part) to which asbestos is delib15 erately or knowingly added or used because the spe16 cific properties of asbestos are necessary for product 

17 use or function. Under no circumstances shall the 

18 term ‘asbestos containing product’ be construed to 

19 include products that contain de minimus levels of 

20 naturally occurring asbestos as defined by the Ad21 ministrator not later than 1 year after the date of 

22 enactment of this chapter. 

23 ‘‘(4) DISTRIBUTE IN COMMERCE.—The term 

24 ‘distribute in commerce’— 
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1 ‘‘(A) has the meaning given the term in 

2 section 3 of the Toxic Substances Control Act 

3 (15 U.S.C. 2602); and 

4 ‘‘(B) shall not include— 

5 ‘‘(i) an action taken with respect to 

6 an asbestos containing product in connec7 tion with the end use of the asbestos con8 taining product by a person that is an end 

9 user, or an action taken by a person who 

10 purchases or receives a product, directly or 

11 indirectly, from an end user; or 

12 ‘‘(ii) distribution of an asbestos con13 taining product by a person solely for the 

14 purpose of disposal of the asbestos con15 taining product in compliance with applica16 ble Federal, State, and local requirements. 

17 ‘‘(b) IN GENERAL.—Subject to subsection (c), the 

18 Administrator shall promulgate— 

19 ‘‘(1) not later than 1 year after the date of en20 actment of this chapter, proposed regulations that— 

21 ‘‘(A) prohibit persons from manufacturing, 

22 processing, or distributing in commerce asbes23 tos containing products; and 

24 ‘‘(B) provide for implementation of sub25 sections (c) and (d); and 
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1 ‘‘(2) not later than 2 years after the date of en2 actment of this chapter, final regulations that, effec3 tive 60 days after the date of promulgation, prohibit 

4 persons from manufacturing, processing, or distrib5 uting in commerce asbestos containing products. 

6 ‘‘(c) EXEMPTIONS.— 

7 ‘‘(1) IN GENERAL.—Any person may petition 

8 the Administrator for, and the Administrator may 

9 grant, an exemption from the requirements of sub10 section (b), if the Administrator determines that— 

11 ‘‘(A) the exemption would not result in an 

12 unreasonable risk of injury to public health or 

13 the environment; and 

14 ‘‘(B) the person has made good faith ef15 forts to develop, but has been unable to develop, 

16 a substance, or identify a mineral that does not 

17 present an unreasonable risk of injury to public 

18 health or the environment and may be sub19 stituted for an asbestos containing product. 

20 ‘‘(2) TERMS AND CONDITIONS.—An Except for 

21 an exception authorized under paragraph (3)(A)(i), 

22 an exemption granted under this subsection shall be 

23 in effect for such period (not to exceed 5 years) and 

24 subject to such terms and conditions as the Adminis25 trator may prescribe. 
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1 ‘‘(3) GOVERNMENTAL USE.— 

2 ‘‘(A) IN GENERAL.—The Administrator of 

3 the Environmental Protection Agency shall pro4 vide an exemption from the requirements of 

5 subsection (b), without review or limit on dura6 tion, if such exemption for an asbestos con7 taining product is— 

8 ‘‘(i) sought by the Secretary of De9 fense and the Secretary certifies, and pro10 vides a copy of that certification to Con11 gress, that— 

12 ‘‘(I) use of the asbestos con13 taining product is necessary to the 

14 critical functions of the Department; 

15 ‘‘(II) no reasonable alternatives 

16 to the asbestos containing product 

17 exist for the intended purpose; and 

18 ‘‘(III) use of the asbestos con19 taining product will not result in an 

20 unreasonable risk to health or the en21 vironment; or 

22 ‘‘(ii) sought by the Administrator of 

23 the National Aeronautics and Space Ad24 ministration and the Administrator of the 

25 National Aeronautics and Space Adminis-
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1 tration certifies, and provides a copy of 

2 that certification to Congress, that— 

3 ‘‘(A) IN GENERAL.— 

4 ‘‘(i) DEPARTMENT OF DEFENSE.— 

5 Nothing in this section or in the regulations 

6 promulgated by the Administrator under 

7 subsection (b) shall prohibit or limit the 

8 manufacture, processing, or distribution in 

9 commerce of asbestos containing products by 

10 or for the Department of Defense or the use 

11 of asbestos containing products by or for the 

12 Department of Defense if the Secretary of 

13 Defense certifies (or recertifies within 10 

14 years of a prior certification), and provides 

15 a copy of the certification to Congress, 

16 that— 

17 ‘‘(I) use of asbestos containing 

18 product is necessary to the critical 

19 functions of the Department, which in20 cludes the use of the asbestos con21 taining product in any weaponry, 

22 equipment, aircraft, vehicles, or other 

23 classes or categories of property which 

24 are owned or operated by the Armed 

25 Forces of the United States (including 
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1 the Coast Guard) or by the National 

2 Guard of any State and which are 

3 uniquely military in nature; 

4 ‘‘(II) no reasonably available and 

5 equivalent alternatives to the asbestos 

6 containing product exist for the in7 tended purpose; and 

8 ‘‘(III) use of the asbestos con9 taining product will not result in a 

10 known unreasonable risk to health or 

11 the environment. 

12 ‘‘(ii) NATIONAL AERONAUTICS AND

13 SPACE ADMINISTRATION.—The Adminis14 trator of the Environmental Protection 

15 Agency shall provide an exemption from the 

16 requirements of subsection (b), without re17 view or limit on duration, if such exemp18 tion for an asbestos containing product is 

19 sought by the Administrator of the National 

20 Aeronautics and Space Administration and 

21 the Administrator of the National Aero22 nautics and Space Administration certifies, 

23 and provides a copy of that certification to 

24 Congress, that— 
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1 ‘‘(I) the asbestos containing 

2 product is necessary to the critical 

3 functions of the National Aeronautics 

4 and Space Administration; 

5 ‘‘(II) no reasonable alternatives 

6 to the asbestos containing product 

7 exist for the intended purpose; and 

8 ‘‘(III) the use of the asbestos 

9 containing product will not result in 

10 an unreasonable risk to health or the 

11 environment. 

12 ‘‘(B) ADMINISTRATIVE PROCEDURE ACT.— 

13 Any certification required under subparagraph 

14 (A) shall not be subject to chapter 5 of title 5, 

15 United States Code (commonly referred to as 

16 the ‘Administrative Procedure Act’). 

17 ‘‘(4) SPECIFIC EXEMPTIONS.—The following 

18 are exempted: 

19 ‘‘(A) Asbestos diaphragms for use in the 

20 manufacture of chlor-alkali and the products 

21 and derivative therefrom. 

22 ‘‘(B) Roofing cements, coatings, and 

23 mastics utilizing asbestos that is totally encap24 sulated with asphalt, subject to a determination 
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1 by the Administrator of the Environmental Pro2 tection Agency under paragraph (5). 

3 ‘‘(5) ENVIRONMENTAL PROTECTION AGENCY

4 REVIEW.— 

5 ‘‘(A) REVIEW IN 18 MONTHS.—Not later 

6 than 18 months after the date of enactment of 

7 this chapter, the Administrator of the Environ8 mental Protection Agency shall complete a re9 view of the exemption for roofing cements, coat10 ings, and mastics utilizing asbestos that are to11 tally encapsulated with asphalt to determine 

12 whether— 

13 ‘‘(i) the exemption would result in an 

14 unreasonable risk of injury to public health 

15 or the environment; and 

16 ‘‘(ii) there are reasonable, commercial 

17 alternatives to the roofing cements, coat18 ings, and mastics utilizing asbestos that is 

19 totally encapsulated with asphalt. 

20 ‘‘(B) REVOCATION OF EXEMPTION.—Upon 

21 completion of the review, the Administrator of 

22 the Environmental Protection Agency shall have 

23 the authority to revoke the exemption for the 

24 products exempted under paragraph (4)(B), if 

25 warranted. 
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1 ‘‘(d) DISPOSAL.— 

2 ‘‘(1) IN GENERAL.—Except as provided in para3 graph (2), not later than 3 years after the date of 

4 enactment of this chapter, each person that pos5 sesses an asbestos containing product that is subject 

6 to the prohibition established under this section shall 

7 dispose of the asbestos containing product, by a 

8 means that is in compliance with applicable Federal, 

9 State, and local requirements. 

10 ‘‘(2) EXEMPTION.—Nothing in paragraph (1)— 

11 ‘‘(A) applies to an asbestos containing 

12 product that— 

13 ‘‘(i) is no longer in the stream of com14 merce; or 

15 ‘‘(ii) is in the possession of an end 

16 user or a person who purchases or receives 

17 an asbestos containing product directly or 

18 indirectly from an end user; or 

19 ‘‘(B) requires that an asbestos containing 

20 product described in subparagraph (A) be re21 moved or replaced.’’. 

22 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

23 The table of contents in section 1 of the Toxic Substances 

24 Control Act (15 U.S.C. prec. 2601) is amended— 
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1 (1) by inserting before the item relating to sec2 tion 201 the following: 

‘‘Subtitle A—General Provisions’’; 

3 and 

4 (2) by adding at the end of the items relating 

5 to title II the following: 

‘‘Subtitle B—Ban of Asbestos Containing Products 

‘‘Sec. 221. Ban of asbestos containing products.’’. 

6 SEC. 502. NATURALLY OCCURRING ASBESTOS. 

7 (a) STUDY.— 

8 (1) IN GENERAL.—Not later than 12 months 

9 after the date of enactment of this Act, the Adminis10 trator of the Environmental Protection Agency 

11 shall— 

12 (A) conduct a study to assess the risks of ex13 posure to naturally occurring asbestos, including 

14 the appropriateness of the existing risk assess15 ment values for asbestos and methods of assessing 

16 exposure; and 

17 (B) submit a report that contains a detailed 

18 statement of the findings and conclusions of such 

19 study to— 

20 (i) the majority and minority leaders 

21 of the Senate; 

22 (ii) the Speaker and the minority lead23 er of the House of Representatives; and 
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1 (iii) the relevant committees of juris2 diction of the Senate and House of Rep3 resentatives, including— 

4 (I) the Environment and Public 

5 Works Committee of the Senate; 

6 (II) the Appropriations Com7 mittee of the Senate; 

8 (III) the Judiciary Committee of 

9 the Senate; 

10 (IV) the Energy and Commerce 

11 Committee of the House of Representa12 tives; 

13 (V) the Judiciary Committee of 

14 the House of Representatives; and 

15 (VI) the Appropriations Com16 mittee of the House of Representatives. 

17 (2) DEVELOPMENT REQUIREMENTS.— 

18 (A) IN GENERAL.—Not later than 18 

19 months after the date of enactment of this Act, 

20 the Administrator of the Environmental Protec21 tion Agency, in consultation with appropriate 

22 Federal and State agencies and other interested 

23 parties after appropriate notice, shall establish 

24 dust management guidelines, and model State 

25 regulations that States can choose to adopt, for 
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1 commercial and residential development, and 

2 road construction in areas where naturally oc3 curring asbestos is present and considered a risk. 

4 Such dust management guidelines may at a 

5 minimum incorporate provisions consistent with 

6 the relevant California Code of Regulation (17 

7 C.C.R. 93105–06). 

8 (B) DUST MANAGEMENT GUIDELINES.— 

9 Guidelines under this paragraph shall include— 

10 (i) site management practices to mini11 mize the disturbance of naturally occurring 

12 asbestos and contain asbestos mobilized 

13 from the source at the development site; 

14 (ii) air and soil monitoring programs 

15 to assess asbestos exposure levels at the de16 velopment site and to determine whether as17 bestos is migrating from the site; and 

18 (iii) appropriate disposal options for 

19 asbestos-containing materials to be removed 

20 from the site during development. 

21 (b) TESTING PROTOCOLS.— 

22 (1) IN GENERAL.—Not later than 18 months 

23 after the date of enactment of this Act, the Adminis24 trator of the Environmental Protection Agency, in 

25 consultation with appropriate State agencies, shall es-
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1 tablish comprehensive protocols for testing for the 

2 presence of naturally occurring asbestos. 

3 (2) PROTOCOLS.—The protocols under this sub4 section shall address both ambient air monitoring and 

5 activity-based personal sampling and include— 

6 (A) suggested sampling devices and guide7 lines to address the issues of methods com8 parability, sampler operation, performance spec9 ifications, and quality control and quality assur10 ance; 

11 (B) a national laboratory and air sampling 

12 accreditation program for all methods of anal13 yses of air and soil for naturally occurring as14 bestos; 

15 (C) recommended laboratory analytical pro16 cedures, including fiber types, fiber lengths, and 

17 fiber aspect ratios; and 

18 (D) protocols for collecting and analyzing 

19 aggregate and soil samples for asbestos content, 

20 including proper and consistent sample prepara21 tion practices suited to the activity likely to 

22 occur on the soils of the study area. 

23 (c) EXISTING BUILDINGS AND AREAS.—Not later than 

24 1 year after the date of enactment of this Act, the Adminis25 trator of the Environmental Protection Agency shall issue 
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1 public education materials, recommended best management 

2 practices and recommended remedial measures for areas 

3 containing naturally occurring asbestos including exist4 ing— 

5 (1) schools and parks; and 

6 (2) commercial and residential development. 

7 (d) MAPPING.—The Secretary of the Interior shall— 

8 (1) acquire infrared mapping data for naturally 

9 occurring asbestos, prioritizing California counties 

10 experiencing rapid population growth; 

11 (2) process that data into map images; and 

12 (3) collaborate with the California Geological 

13 Survey and any other appropriate State agencies in 

14 producing final maps of asbestos zones. 

15 (e) RESEARCH GRANTS.—The Director of the National 

16 Institutes of Health shall administer 1 or more research 

17 grants to qualified entities for studies that focus on better 

18 understanding the health risks of exposure to naturally oc19 curring asbestos. Grants under this subsection shall be 

20 awarded through a competitive peer-reviewed, merit-based 

21 process. 

22 (f) TASK FORCE PARTICIPATION.—Representatives of 

23 Region IX of the United States Environmental Protection 

24 Agency, and the Agency for Toxic Substances and Disease 

25 Registry of the United States Department of Health and 
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1 Human Services shall participate in any task force con2 vened by the State of California to evaluate policies and 

3 adopt guidelines for the mitigation of risks associated with 

4 naturally occurring asbestos. 

5 (g) MATCHING GRANTS.— The Administrator of the 

6 Environmental Protection Agency is authorized to award 

7 50 percent matching Federal grants to States and munici8 palities. Not later than 4 months after the date of enactment 

9 of this Act, the Administrator of the Environmental Protec10 tion Agency shall establish criteria to award such grants— 

11 (1) for monitoring and remediation of naturally 

12 occurring asbestos— 

13 (A) at schools, parks, and other public 

14 areas; and 

15 (B) in serpentine aggregate roads gener16 ating significant public exposure; and 

17 (2) for development, implementation, and en18 forcement of State and local dust management regula19 tions concerning naturally occurring asbestos, pro20 vided that after the Administrator has issued model 

21 State regulations under subsection (a)(2), such State 

22 and local regulations shall be at least as protective as 

23 the model regulations to be eligible for the matching 

24 grants. 
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1 (h) AVAILABILITY OF FUNDS.—An amount of 

2 $40,000,000 from the Fund shall be made available to carry 

3 out the requirements of this section, including up to 

4 $9,000,000 for the Secretary of the Interior to carry out 

5 subsection (d), up to $4,000,000 for the Director of the Na6 tional Institutes of Health to carry out subsection (e), and 

7 the remainder for the Administrator of the Environmental 

8 Protection Agency, at least $15,000,000 of which shall be 

9 used for the matching grants under subsection (g). 

10 (i) CONSTRUCTION.— 

11 (1) GUIDELINES AND PROTOCOLS.—The guide12 lines and protocols issued by the Administrator of the 

13 Environmental Protection Agency under the specific 

14 authorities in subsections (a), (b), and (c) shall be 

15 construed as nonbinding best practices unless adopted 

16 as a mandatory requirement by a State or local gov17 ernment. Notwithstanding the preceding sentence, ac18 creditation for testing will not be granted except in 

19 accordance with the guidelines issued under sub20 section (b)(2)(B). 

21 (2) FEDERAL CAUSES OF ACTION.—This section 

22 shall not be construed as creating any new Federal 

23 cause of action for civil, criminal, or punitive dam24 ages. 
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1 (3) FEDERAL CLAIMS.—This section shall not be 

2 construed as creating any new Federal claim for in3 junctive or declaratory relief against a State, local, or 

4 private party. 

5 (4) STATES AND LOCALITIES.— Nothing in this 

6 section shall limit the authority of States or localities 

7 concerning naturally occurring asbestos. 
Calendar No. 131 

109TH CONGRESS 

1ST SESSION S. 852 

A BILL 

To create a fair and efficient system to resolve 

bestos exposure, and for other purposes. claims of victims for bodily injury caused by asJUNE 16, 2005 

Reported with amendments