217
(9) a summary of all referrals made to law en-
forcement authorities under section 408 and of any 
legal actions brought or penalties imposed under sec-
tion 223; 
(10) an estimate of the number and types of 
claims, the amount of awards, and the participant 
payment obligations for the next fiscal year; 
(11) any recommendations from the Advisory 
Committee on Asbestos Disease Compensation and 
the Medical Advisory Committee of the Fund to im-
prove the diagnostic, exposure, and medical criteria 
so as to pay only those claimants whose injuries are 
caused by exposure to asbestos; 
(12) a summary of the results of audits con-
ducted under section 115; and 
(13) a summary of prosecutions under section 
1348 of title 18, United States Code (as added by 
this Act). 
(c) CLAIMS ANALYSIS.—If the Administrator con-
cludes, on the basis of the annual report submitted under 
this section, that the Fund is compensating claims for in-
juries that are not caused by exposure to asbestos and 
compensating such claims may, currently or in the future, 
undermine the Fund’s ability to compensate persons with 
injuries that are caused by exposure to asbestos, he or she
218
must include in the report an analysis of the reasons for 
the situation, a description of the range of reasonable al-
ternatives for responding to the situation, and a rec-
ommendation as to which alternative best serves the inter-
est of claimants and the public. The report may include 
a description of changes in the diagnostic, exposure or 
medical criteria of section 121 that the Administrator be-
lieves may be necessary to protect the Fund from compen-
sating claims not caused by exposure to asbestos. 
(d) SHORTFALL ANALYSIS.—
(1) IN
GENERAL.—If the Administrator con-
cludes, on the basis of the information contained in 
the annual report submitted under this section, that 
the Fund may not be able to pay claims as they be-
come due at any time within the next 5 years, the 
Administrator must include in the report an analysis 
of the reasons for the situation, an estimation of 
when the Fund will no longer be able to pay claims 
as they become due, a description of the range of 
reasonable alternatives for responding to the situa-
tion, and a recommendation as to which alternative 
best serves the interest of claimants and the public. 
The report may include a description of changes in 
the diagnostic, exposure or medical criteria of sec-
tion 121 that the Administrator believes may be nec-
219
essary to protect the Fund. The range of alter-
natives may include—
(A) triggering the termination of this Act 
under subsection (f) at any time after 7 years 
following the date of enactment of this Act, and 
(B) reform of the program set forth in ti-
tles I and II of this Act (including changes in 
the diagnostic, exposure or medical criteria, 
changes in the enforcement or application of 
those criteria, changes in the timing of pay-
ments, or changes in award values). 
(2) CONSIDERATIONS.—In formulating rec-
ommendations, the Administrator shall take into ac-
count the reasons for any shortfall, actual or pro-
jected, which may include—
(A) financial factors (such as inadequate 
return on investments); 
(B) the operation of the Fund generally 
(including the operation of the diagnostic, expo-
sure and medical criteria, potential problems of 
fraud, the adequacy of the criteria to rule out 
idiopathic mesothelioma, and inadequate flexi-
bility to extend the timing of payments); 
(C) the actual incidence of diseases such as 
mesothelioma;
220
(D) compensation of diseases with alter-
native causes; and 
(E) any other factor that the Adminis-
trator considers relevant. 
(3) RECOMMENDATION OF TERMINATION.—Any 
recommendation of termination should include a 
plan for winding up the affairs of the Fund (and the 
program generally) within a defined period, includ-
ing paying in full all claims resolved at the time the 
report is prepared. 
(4) RESOLVED CLAIMS.—For purposes of this 
section, a claim shall be deemed resolved when the 
Administrator has determined the amount of the 
award due the claimant, and either the claimant has 
waived judicial review or the time for judicial review 
has expired. 
(e) RECOMMENDATIONS
OF ADMINISTRATOR
AND 
COMMISSION.—
(1) IN
GENERAL.—If the Administrator rec-
ommends changes to this Act under subsection (c), 
the recommendations and accompanying analysis 
shall be referred to a special commission consisting 
of the Attorney General, the Secretary of Labor, the 
Secretary of Health and Human Services, the Sec-
retary of the Treasury, and the Secretary of Com-
221
merce. The Commission shall hold public hearings 
on 
the 
Administrator’s 
alternatives 
and 
rec-
ommendations and then make its own recommenda-
tions for reform of the program set forth in titles I 
and II of this Act. Within 180 days after receiving 
the Administrator’s recommendations, the Commis-
sion shall transmit its own recommendations to the 
Congress in the same manner as set forth in sub-
section (a). 
(2) REFERRAL.—If the Administrator rec-
ommends changes to, or termination of, this Act 
under subsection (d), the recommendations and ac-
companying analysis shall be referred to the Com-
mission. The Commission shall hold public hearings 
on 
the 
Administrator’s 
alternatives 
and 
rec-
ommendations and then make its own recommenda-
tions for reform of the program set forth in titles I 
and II of this Act. Within 180 days after receiving 
the Administrator’s recommendations, the Commis-
sion shall transmit its own recommendations to the 
Congress in the same manner as set forth in sub-
section (a). 
(f) SUNSET OF ACT.—
(1) IN GENERAL.—At any time after 7 years 
following the date on which the Administrator begins
222
processing claims, if the Administrator determines 
that, if any additional claims are resolved, the Fund 
will not have sufficient resources when needed to pay 
100 percent of all resolved claims while also making 
its debt repayment obligations and meeting its other 
obligations under this Act, the provisions of this Act 
set forth in paragraph (3) shall terminate and be of 
no further effect 180 days after the Administrator’s 
determination as to all asbestos claims that have not 
been resolved by the Fund as of the date of the de-
termination, unless Congress passes legislation con-
tinuing the Fund. 
(2) RESOLVED CLAIMS.—In the event of sunset, 
all resolved claims shall be paid in full by the Fund. 
(3) 
TERMINATED
PROVISIONS.—Subject 
to 
paragraph (4), the provisions of this Act subject to 
termination under paragraph (1) are titles I (except 
subtitle A) and II and sections 403 and 404(e)(2). 
(4) CONTINUED
FUNDING.—If provisions of 
this Act terminate under paragraph (1), participants 
will still be required to make payments as provided 
under subtitles A and B of title II. If the full 
amount of payments required by title II is not nec-
essary for the Fund to pay claims that have been re-
solved as of the date of termination, pay the Fund’s
223
debt, and support the Fund’s continued operation as 
needed to pay such claims and debt, the Adminis-
trator may reduce such payments. Any such reduc-
tions shall be allocated among participants in ap-
proximately the same proportion as the liability 
under subtitles A and B of title II. 
(5) DEFINITIONS.—In this subsection—
(A) the term ‘‘sunset claims’’ means claims 
as to which this Act has terminated; and 
(B) the term ‘‘sunset claimants’’ means 
persons asserting such claims. 
(6) SUNSET CLAIMS.—If this Act terminates in 
accordance with paragraph (1), then the applicable 
statute of limitations for the filing of sunset claims 
under subsection (g) shall be deemed tolled for any 
past or pending sunset claimants while they were 
pursuing claims filed under this Act. For those 
claimants who decide to pursue a sunset claim in ac-
cordance with subsection (g), the applicable statute 
of limitations shall apply, except that claimants who 
filed a claim against the Fund under this Act before 
the date of termination shall have 2 years after the 
date of termination to file a sunset claim in accord-
ance with subsection (g), whichever is longer. 
(g) NATURE OF CLAIM AFTER SUNSET.—
224
(1) IN GENERAL.—On and after the date of ter-
mination under subsection (f), any individual injured 
as a result of exposure to asbestos, who has not pre-
viously had a claim resolved by the Fund, may in a 
civil action obtain relief in damages subject to the 
terms and conditions under this subsection and 
paragraph (6) of subsection (f), except—
(A) an individual who received an award 
for a nonmalignant disease (Levels I through 
V) from the Fund may assert a claim for a ma-
lignant disease under this subsection, unless the 
malignancy was diagnosed or the claimant had 
discovered facts that would have led a reason-
able person to obtain such a diagnosis before 
the date on which the nonmalignant claim was 
settled; and 
(B) an individual who received an award 
for a nonmalignant or malignant disease (ex-
cept mesothelioma) (Levels I through IX) from 
the Fund may assert a claim for mesothelioma 
under this subsection, unless the mesothelioma 
was diagnosed or the claimant had discovered 
facts that would have led a reasonable person to 
obtain such a diagnosis before the date on
225
which the nonmalignant or other malignant 
claim was settled. 
(2) EXCLUSIVE
JURISDICTION.—The United 
States district courts shall have exclusive jurisdiction 
of all actions under paragraph (1), to the exclusion 
of State courts and any other forum. As of the effec-
tive date of a termination of this Act under sub-
section (f), an action under paragraph (1) shall be 
the exclusive remedy for any asbestos claim that 
might otherwise exist under Federal, State or other 
law, regardless of whether such claim arose before or 
after the effective date of this Act or of the termi-
nation of this Act, except that claims against the 
Fund that have been resolved before the date of the 
termination determination under subsection (f) may 
be paid by the Fund. 
(3) VENUE.—Actions under paragraph (1) shall 
be brought only in the United States district court 
for the judicial district where the claimant resides or 
the exposure is alleged to have occurred. 
(4) APPLICABLE LAW.—An action under para-
graph (1) shall be governed by Federal common law, 
except that where national uniformity is not required 
the court must utilize otherwise applicable State law,
226
including State statutes, to provide the appropriate 
rule of Federal common law. 
SEC. 406. RULES OF CONSTRUCTION RELATING TO LIABIL-
ITY OF THE UNITED STATES GOVERNMENT. 
(a) CAUSES OF ACTIONS.—Except as otherwise spe-
cifically provided in this Act, nothing in this Act may be 
construed as creating a cause of action against the United 
States Government, any entity established under this Act, 
or any officer or employee of the United States Govern-
ment or such entity. 
(b) FUNDING LIABILITY.—Nothing in this Act may 
be construed to—
(1) create any obligation of funding from the 
United States Government, other than the funding 
for personnel and support as provided under this 
Act; or 
(2) obligate the United States Government to 
pay any award or part of an award, if amounts in 
the Fund are inadequate. 
SEC. 407. RULES OF CONSTRUCTION. 
(a) LIBBY, MONTANA CLAIMANTS.—Nothing in this 
Act shall preclude the formation of a fund for the payment 
of eligible medical expenses related to treating asbestos-
related disease for current and former residents of Libby, 
Montana.
227
(b) HEALTH CARE FROM PROVIDER OF CHOICE.—
Nothing in this Act shall be construed to preclude any eli-
gible claimant from receiving health care from the pro-
vider of their choice. 
SEC. 408. VIOLATIONS OF ENVIRONMENTAL AND OCCUPA-
TIONAL 
HEALTH 
AND 
SAFETY 
REQUIRE-
MENTS. 
(a) ASBESTOS IN COMMERCE.—If the Administrator 
receives information concerning conduct occurring after 
the date of enactment of this Act that may have been a 
violation of standards issued by the Environmental Protec-
tion Agency under the Toxic Substances Control Act (15 
U.S.C. 2601 et seq.), relating to the manufacture, impor-
tation, processing, disposal and distribution in commerce 
of asbestos-containing products, the Administrator shall 
refer the matter in writing within 30 days after receiving 
that information to the Administrator of the Environ-
mental Protection Agency and the United States Attorney 
for possible civil or criminal penalties, including those 
under section 17 of the Toxic Substances Control Act (15 
U.S.C. 2616), and to the appropriate State authority with 
jurisdiction to investigate asbestos matters. 
(b) ASBESTOS AS AIR POLLUTANT.—If the Adminis-
trator receives information concerning conduct occurring 
after the date of enactment of this Act that may have been
228
a violation of standards issued by the Environmental Pro-
tection Agency under the Clean Air Act (42 U.S.C. 7401 
et seq.), relating to asbestos as a hazardous air pollutant, 
the Administrator shall refer the matter in writing within 
30 days after receiving that information to the Adminis-
trator of the Environmental Protection Agency and the 
United States Attorney for possible criminal and civil pen-
alties, including those under section 113 of the Clean Air 
Act (42 U.S.C. 7413), and to the appropriate State au-
thority with jurisdiction to investigate asbestos matters. 
(c) OCCUPATIONAL EXPOSURE.—If the Adminis-
trator receives information concerning conduct occurring 
after the date of enactment of this Act that may have been 
a violation of standards issued by the Occupational Safety 
and Health Administration under the Occupational Safety 
and Health Act of 1970 (29 U.S.C. 651 et seq.), relating 
to occupational exposure to asbestos, the Administrator 
shall refer the matter in writing within 30 days after re-
ceiving that information and refer the matter to—
(1) the United States Attorney for possible 
criminal prosecution under section 5(a) of such Act 
(29 U.S.C. 654(a)); 
(2) the Secretary of Labor for possible civil 
penalties under section 17 (a) through (d) of such 
Act (29 U.S.C. 666 (a) through (d)); and
229
(3) the Assistant Secretary for the Occupational 
Safety and Health Commission, and the appropriate 
State authority with jurisdiction to investigate asbes-
tos matters, for possible civil or criminal penalties, 
including those under section 17 of the Occupational 
Safety and Health Act of 1970 (29 U.S.C. 666). 
(d) REVIEW OF FEDERAL SENTENCING GUIDELINES 
FOR ENVIRONMENTAL CRIMES RELATED
TO ASBES-
TOS.—Under section 994 of title 28, United States Code, 
and in accordance with this section, the United States 
Sentencing Commission shall review and amend, as appro-
priate, the United States Sentencing Guidelines and re-
lated policy statements to ensure that—
(1) appropriate changes are made within the 
guidelines to reflect any statutory amendments that 
have occurred since the time that the current guide-
line was promulgated; 
(2) the base offense level, adjustments and spe-
cific offense characteristics contained in section 
2Q1.2 of the United States Sentencing Guidelines 
(relating to mishandling of hazardous or toxic sub-
stances or pesticides; recordkeeping, tampering, and 
falsification; and unlawfully transporting hazardous 
materials in commerce) are increased as appropriate 
to ensure that future asbestos related-offenses re-
230
flect the seriousness of the offense, the harm to the 
community, the need for ongoing reform, and the 
highly regulated nature of asbestos; 
(3) the base offense level, adjustments and spe-
cific offense characteristics are sufficient to deter 
and punish future activity and are adequate in cases 
in which the relevant offense conduct—
(A) involves asbestos as a hazardous or 
toxic substance; and 
(B) occurs after the date of enactment of 
this Act; 
(4) the adjustments and specific offense charac-
teristics contained in section 2B1.1 of the United 
States Sentencing Guidelines related to fraud, deceit 
and false statements, adequately take into account 
that asbestos was involved in the offense, and the 
possibility of death or serious bodily harm as a re-
sult; 
(5) the guidelines that apply to organizations in 
chapter 8 of the United States Sentencing Guide-
lines, are sufficient to deter and punish organiza-
tional criminal misconduct that involves the use, 
handling, purchase, sale, disposal, or storage of as-
bestos; and
231
(6) the guidelines that apply to organizations in 
chapter 8 of the United States Sentencing Guide-
lines, are sufficient to deter and punish organiza-
tional criminal misconduct that involves fraud, de-
ceit, or false statements against the Office of Asbes-
tos Disease Compensation. 
SEC. 409. NONDISCRIMINATION OF HEALTH INSURANCE. 
(a) DENIAL, TERMINATION, OR ALTERATION
OF 
HEALTH COVERAGE.—No health insurer offering a health 
plan may deny or terminate coverage, or in any way alter 
the terms of coverage, of any claimant or the beneficiary 
of a claimant, on account of the participation of the claim-
ant or beneficiary in a medical monitoring program under 
this Act, or as a result of any information discovered as 
a result of such medical monitoring. 
(b) DEFINITIONS.—In this section: 
(1) HEALTH INSURER.—The term ‘‘health in-
surer’’ means—
(A) an insurance company, health care 
service contractor, fraternal benefit organiza-
tion, insurance agent, third party adminis-
trator, insurance support organization, or other 
person subject to regulation under the laws re-
lated to health insurance of any State; 
(B) a managed care organization; or
232
(C) an employee welfare benefit plan regu-
lated under the Employee Retirement Income 
Security Act of 1974 (29 U.S.C. 1001 et seq.). 
(2) HEALTH PLAN.—The term ‘‘health plan’’ 
means—
(A) a group health plan (as such term is 
defined in section 607 of the Employee Retire-
ment Income Security Act of 1974 (29 U.S.C. 
1167)), and a multiple employer welfare ar-
rangement (as defined in section 3(4) of such 
Act) that provides health insurance coverage; or 
(B) any contractual arrangement for the 
provision of a payment for health care, includ-
ing any health insurance arrangement or any 
arrangement consisting of a hospital or medical 
expense incurred policy or certificate, hospital 
or medical service plan contract, or health 
maintenance organizing subscriber contract. 
(c) CONFORMING AMENDMENTS.—
(1) ERISA.—Section 702(a)(1) of the Employee 
Retirement Income Security Act of 1974 (29 U.S.C. 
1182(a)(1)), is amended by adding at the end the 
following:
233
‘‘(I) Participation in a medical monitoring 
program under the Fairness in Asbestos Injury 
Resolution Act of 2005.’’. 
(2) PUBLIC
SERVICE
HEALTH
ACT.—Section 
2702(a)(1) of the Public Health Service Act (42 
U.S.C. 300gg–1(a)(1)) is amended by adding at the 
end the following: 
‘‘(I) Participation in a medical monitoring 
program under the Fairness in Asbestos Injury 
Resolution Act of 2005.’’. 
(3) INTERNAL REVENUE CODE OF 1986.—Sec-
tion 9802(a)(1) of the Internal Revenue Code of 
1986 is amended by adding at the end the following: 
‘‘(I) Participation in a medical monitoring 
program under the Fairness in Asbestos Injury 
Resolution Act of 2005.’’. 
TITLE V—ASBESTOS BAN 
SEC. 501. PROHIBITION ON ASBESTOS CONTAINING PROD-
UCTS. 
(a) IN GENERAL.—Title II of the Toxic Substances 
Control Act (15 U.S.C. 2641 et seq.) is amended—
(1) by inserting before section 201 (15 U.S.C. 
2641) the following: 
‘‘Subtitle A—General Provisions’’; 
(2) by adding at the end the following: