I 
109TH CONGRESS 
1ST SESSION H. R. 1360
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 HOUSE OF REPRESENTATIVES 
MARCH 17, 2005
Mr. KIRK (for himself, Mr. BASS, Mr. PLATTS, Mr. SHIMKUS, Mr. KENNEDY 
of Minnesota, and Mr. DENT) introduced the following bill; which was re-
ferred to the Committee on the Judiciary, and in addition to the Commit-
tees on Energy and Commerce, Ways and Means, Education and the 
Workforce, and Financial Services, for a period to be subsequently deter-
mined by the Speaker, in each case for consideration of such provisions 
as fall within the jurisdiction of the committee concerned 
A BILL 
To create a fair and efficient system to resolve claims of 
victims for bodily injury caused by asbestos exposure, 
and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 
(a) SHORT TITLE.—This Act may be cited as the 
‘‘Fairness in Asbestos Injury Resolution Act of 2005’’ or 
the ‘‘FAIR Act of 2005’’.
(b) TABLE OF CONTENTS.—The table of contents of 
this Act is as follows:
Sec. 1. Short title; table of contents. 
Sec. 2. Findings and purpose. 
Sec. 3. Definitions. 
TITLE I—ASBESTOS CLAIMS RESOLUTION 
Subtitle A—Office of Asbestos Disease Compensation 
Sec. 101. Establishment of Office of Asbestos Disease Compensation. 
Sec. 102. Advisory Committee on Asbestos Disease Compensation. 
Sec. 103. Medical Advisory Committee. 
Sec. 104. Claimant assistance. 
Sec. 105. Physicians Panels. 
Sec. 106. Program startup. 
Sec. 107. Authority of the Administrator. 
Subtitle B—Asbestos disease compensation procedures 
Sec. 111. Essential elements of eligible claim. 
Sec. 112. General rule concerning no-fault compensation. 
Sec. 113. Filing of claims. 
Sec. 114. Eligibility determinations and claim awards. 
Sec. 115. 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. 
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. 
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. 
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. 
Sec. 406. Rules of construction relating to liability of the United States Gov-
ernment. 
Sec. 407. Rules of construction. 
Sec. 408. Violations of environmental and occupational health and safety re-
quirements. 
Sec. 409. Nondiscrimination of health insurance. 
TITLE V—ASBESTOS BAN 
Sec. 501. Prohibition on asbestos containing products.
SEC. 2. FINDINGS AND PURPOSE. 
(a) FINDINGS.—Congress finds the following: 
(1) A great number of Americans have been ex-
posed to forms of asbestos that can have devastating 
health effects. 
(2) Various injuries can be caused by exposure 
to some forms of asbestos, including pleural disease 
and some forms of cancer. 
(3) The injuries caused by asbestos can have la-
tency periods of up to 40 years, and even limited ex-
posure to some forms of asbestos may result in in-
jury in some cases. 
(4) Asbestos litigation has had a significant 
detrimental effect on the country’s economy, driving 
companies into bankruptcy, diverting resources from 
those who are truly sick, and endangering jobs and 
pensions. 
(5) The scope of the asbestos litigation crisis 
cuts across every State and virtually every industry. 
(6) The United States Supreme Court has rec-
ognized that Congress must act to create a more ra-
tional asbestos claims system. In 1991, a Judicial 
Conference Ad Hoc Committee on Asbestos Litiga-
tion, appointed by Chief Justice William Rehnquist, 
found that the ‘‘ultimate solution should be legisla-
tion recognizing the national proportions of the 
problem . . . and creating a national asbestos dis-
pute resolution scheme . . .’’. The Court found in 
1997 in Amchem Products Inc. v. Windsor, 521 
U.S. 591, 595 (1997), that ‘‘[t]he argument is sen-
sibly made that a nationwide administrative claims 
processing regime would provide the most secure, 
fair, and efficient means of compensating victims of 
asbestos exposure.’’ In 1999, the Court in Ortiz v. 
Fibreboard Corp., 527 U.S. 819, 821 (1999), found
that the ‘‘elephantine mass of asbestos cases . . . de-
fies customary judicial administration and calls for 
national legislation.’’ That finding was again recog-
nized in 2003 by the Court in Norfolk & Western 
Railway Co. v. Ayers, 123 S.Ct. 1210 (2003). 
(7) This crisis, and its significant effect on the 
health and welfare of the people of the United 
States, on interstate and foreign commerce, and on 
the bankruptcy system, compels Congress to exercise 
its power to regulate interstate commerce and create 
this legislative solution in the form of a national as-
bestos injury claims resolution program to supersede 
all existing methods to compensate those injured by 
asbestos, except as specified in this Act. 
(b) PURPOSE.—The purpose of this Act is to—
(1) create a privately funded, publicly adminis-
tered fund to provide the necessary resources for a 
fair and efficient system to resolve asbestos injury 
claims that will provide compensation for legitimate 
present and future claimants of asbestos exposure as 
provided in this Act; 
(2) provide compensation to those present and 
future victims based on the severity of their injuries, 
while establishing a system flexible enough to accom-
modate individuals whose conditions worsens;
(3) relieve the Federal and State courts of the 
burden of the asbestos litigation; and 
(4) increase economic stability by resolving the 
asbestos litigation crisis that has bankrupted compa-
nies with asbestos liability, diverted resources from 
the truly sick, and endangered jobs and pensions. 
SEC. 3. DEFINITIONS. 
In this Act, the following definitions shall apply: 
(1) ADMINISTRATOR.—The term ‘‘Adminis-
trator’’ means the Administrator of the Office of As-
bestos Disease Compensation appointed under sec-
tion 101(b). 
(2) ASBESTOS.—The term ‘‘asbestos’’ in-
cludes—
(A) chrysotile; 
(B) amosite; 
(C) crocidolite; 
(D) tremolite asbestos; 
(E) winchite asbestos; 
(F) richterite asbestos; 
(G) anthophyllite asbestos; 
(H) actinolite asbestos; 
(I) any of the minerals listed under sub-
paragraphs (A) through (H) that has been 
chemically 
treated 
or 
altered, 
and 
any
asbestiform variety, type, or component thereof; 
and 
(J) asbestos-containing material, such as 
asbestos-containing products, automotive or in-
dustrial parts or components, equipment, im-
provements to real property, and any other ma-
terial that contains asbestos in any physical or 
chemical form. 
(3) ASBESTOS CLAIM.—
(A) IN
GENERAL.—The term ‘‘asbestos 
claim’’ means any claim, premised on any the-
ory, allegation, or cause of action for damages 
or other relief presented in a civil action or 
bankruptcy proceeding, directly, indirectly, or 
derivatively arising out of, based on, or related 
to, in whole or part, the health effects of expo-
sure to asbestos, including loss of consortium, 
wrongful death, and any derivative claim made 
by, or on behalf of, any exposed person or any 
representative, spouse, parent, child or other 
relative of any exposed person. 
(B) EXCLUSION.—The term does not in-
clude claims alleging damage or injury to tan-
gible property, or claims for benefits under a
workers’ compensation law or veterans’ benefits 
program. 
(4) ASBESTOS CLAIMANT.—The term ‘‘asbestos 
claimant’’ means an individual who files a claim 
under section 113. 
(5) CIVIL
ACTION.—The term ‘‘civil action’’ 
means all suits of a civil nature in State or Federal 
court, whether cognizable as cases at law or in eq-
uity or in admiralty, but does not include an action 
relating to any workers’ compensation law, or a pro-
ceeding for benefits under any veterans’ benefits 
program. 
(6) COLLATERAL
SOURCE
COMPENSATION.—
The term ‘‘collateral source compensation’’ means 
the compensation that the claimant received, or is 
entitled to receive, from a defendant or an insurer 
of that defendant, or compensation trust as a result 
of a judgment or settlement for an asbestos-related 
injury that is the subject of a claim filed under sec-
tion 113. 
(7) ELIGIBLE
DISEASE
OR
CONDITION.—The 
term ‘‘eligible disease or condition’’ means, to the 
extent that the illness meets the medical criteria re-
quirements established under subtitle C of title I, as-
bestosis/pleural disease, severe asbestosis disease,
disabling asbestosis disease, mesothelioma, lung can-
cer I, lung cancer II, lung cancer III, and other can-
cers. 
(8) FUND.—The term ‘‘Fund’’ means the As-
bestos Injury Claims Resolution Fund established 
under section 221. 
(9) INSURANCE RECEIVERSHIP PROCEEDING.—
The term ‘‘insurance receivership proceeding’’ means 
any State proceeding with respect to a financially 
impaired or insolvent insurer or reinsurer including 
the liquidation, rehabilitation, conservation, super-
vision or ancillary receivership of an insurer under 
State law. 
(10) LAW.—The term ‘‘law’’ includes all law, 
judicial or administrative decisions, rules, regula-
tions, or any other principle or action having the ef-
fect of law. 
(11) PARTICIPANT.—
(A) IN GENERAL.—The term ‘‘participant’’ 
means any person subject to the funding re-
quirements of title II, including—
(i) any defendant participant subject 
to liability for payments under subtitle A 
of that title;
(ii) any insurer participant subject to 
a payment under subtitle B of that title; 
and 
(iii) any successor in interest of a par-
ticipant. 
(B) EXCEPTION.—
(i) IN GENERAL.—A defendant partic-
ipant shall not include any person pro-
tected from any asbestos claim by reason 
of an injunction entered in connection with 
a plan of reorganization under chapter 11 
of title 11, United States Code, that has 
been confirmed by a duly entered order or 
judgment of a court that is no longer sub-
ject to any appeal or judicial review, and 
the substantial consummation, as such 
term is defined in section 1101(2) of title 
11, United States Code, of such plan of re-
organization has occurred. 
(ii) APPLICABILITY.—Clause (i) shall 
not apply to a person who may be liable 
under subtitle A of title II based on prior 
asbestos expenditures related to asbestos 
claims that are not covered by an injunc-
tion described under clause (i).
(12) PERSON.—The term ‘‘person’’—
(A) means an individual, trust, firm, joint 
stock company, partnership, association, insur-
ance company, reinsurance company, or cor-
poration; and 
(B) does not include the United States, 
any State or local government, or subdivision 
thereof, including school districts and any gen-
eral or special function governmental unit es-
tablished under State law. 
(13) STATE.—The term ‘‘State’’ means any 
State of the United States and also includes the Dis-
trict of Columbia, Commonwealth of Puerto Rico, 
the Northern Mariana Islands, the Virgin Islands, 
Guam, American Samoa, and any other territory or 
possession of the United States or any political sub-
division of any of the entities under this paragraph. 
(14) SUBSTANTIALLY
CONTINUES.—The term 
‘‘substantially continues’’ means that the business 
operations have not been significantly modified by 
the change in ownership. 
(15) SUCCESSOR
IN
INTEREST.—The term 
‘‘successor in interest’’ means any person that ac-
quires assets, and substantially continues the busi-
ness operations, of a participant. The factors to be
considered in determining whether a person is a suc-
cessor in interest include—
(A) retention of the same facilities or loca-
tion; 
(B) retention of the same employees; 
(C) maintaining the same job under the 
same working conditions; 
(D) retention of the same supervisory per-
sonnel; 
(E) continuity of assets; 
(F) production of the same product or 
offer of the same service; 
(G) retention of the same name; 
(H) maintenance of the same customer 
base; 
(I) identity of stocks, stockholders, and di-
rectors between the asset seller and the pur-
chaser; or 
(J) whether the successor holds itself out 
as continuation of previous enterprise, but ex-
pressly does not include whether the person ac-
tually knew of the liability of the participant 
under this Act. 
(16) VETERANS’ 
BENEFITS
PROGRAM.—The 
term ‘‘veterans’ benefits program’’ means any pro-