May 26, 2006 sees Congressional Record publish “STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS”

Friday, Sep 24, 2021 @ 7:05pm By EP News Wire Reports

Volume 152, No. 68 covering the 2nd Session of the 109th Congress (2005 - 2006) was published by the Congressional Record.

The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.

“STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS” mentioning the Environmental Protection Agency was published in the Senate section on pages S5344-S5392 on May 26, 2006.

The publication is reproduced in full below:

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. DAYTON (for himself and Mr. Lott):

S. 3239. A bill to require full disclosure of insurance coverage and noncoverage by insurance companies and provide for Federal Trade Commission enforcement; to the Committee on Commerce, Science, and Transportation.

Mr. DAYTON. Mr. President, I ask unanimous consent that the text of S. 3239, the Honesty Is the Best Insurance Policy Act of 2006, be printed in the Record.

There being no objection, the bill was ordered to be printed in the Record, as follows:

S. 3239

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Honesty is the Best Insurance Policy Act of 2006''.

SEC. 2. UNLAWFUL ACT.

Each individual policy written by a State-registered insurance company shall include on the front or first page of the policy a ``Noncoverage Disclosure'' box restating in plain English, in bold font twice the size of the text in the body of the policy, all conditions, exclusions, and other limitations pertaining to coverage under that policy, regardless of the underlying insurance product in question.

SEC. 3. ENFORCEMENT.

(a) In General.--Any violation of this Act shall be treated as a violation of a regulation under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)) regarding unfair or deceptive acts or practices.

(b) Regulations.--The Federal Trade Commission (referred to in this Act as the ``Commission'') shall promulgate regulations to carry out this Act.

SEC. 4. POWERS OF COMMISSION.

(a) In General.--The Commission, acting through the Division of Financial Practices in the Bureau of Consumer Protection, shall prevent any person from violating this Act, and any regulation promulgated thereunder, in the same manner, by the same means, and with the same jurisdiction, powers and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this Act.

(b) Penalties.--Any person who violates regulations promulgated under this Act shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act as though all applicable terms and provisions of the Federal Trade Commission Act were incorporated into and made part of this Act.

(c) Authority Preserved.--Nothing in this Act shall be construed to limit the authority of the Commission under any other provision of law.

______

By Mrs. CLINTON (for herself and Ms. Mikulski):

S. 3255. A bill to provide student borrowers with basic rights, including the right to timely information about their loans and the right to make fair and reasonable loan payments, and for other purposes; to the Committee on Health, Education, Labor, and Pensions.

Mrs. CLINTON. Mr. President. I rise today to introduce legislation to protect the rights of student borrowers trying to repay their loans. Students are borrowing now more than ever to pay for higher education. Need-based grant aid has stagnated while college costs have grown. The result is more students borrowing and higher levels of borrowing. In 1993, less than one-half of students graduating from 4-year colleges and universities had student loans. Now two-thirds do.

Unlike other debt, you take out student loans to invest in yourself. For most people, that is a wise investment. In the long run student loans help people earn more money and have more choices in their careers. Student borrowers must also take their responsibilities seriously, so future generations of students can also benefit from the chance to borrow money--so they do not have to burden their families.

But today it is harder to pay back loans than when I left school or when most of the Members of this Chamber did. The average debt burden for college graduates has increased 58 percent over the past decade, after accounting for inflation. And too many borrowers are overly burdened as they repay student loans. When I travel in New York, I meet young people all the time who say to me, ``You know, Senator, I'd like to go to nursing school or I'd like to be a teacher or I'd like to go into law enforcement, but I've got so much debt that I can't afford to do that.'' We need to make sure that student loans do not stand in people's way and prevent them from following their dreams.

The burden of student loan debt can put people in economic handcuffs, forcing them out of important but low-paying professions or forcing them to delay the purchase of a home. Today 54 percent of former students wish they had borrowed less for college, up from 31 percent in 1991. Student loan debt may even prevent borrowers from pursuing a higher degree. According to the Nellie Mae Corporation, 40 percent of college graduates who do not go to graduate school blame student loan debt. Most disturbingly, the prospect that student loans will be burdensome may prevent successful high school students from going to college. Twenty percent of low-income high school graduates who are qualified for college do not go to college.

The Student Borrower Bill of Rights will make it easier for students to repay and give them rights that are enforceable. The bill will give students the right to shop for loans in a free marketplace. It will give students access to better information about their loans. The bill will give student borrowers the right to make fair, monthly payments that do not exceed a percentage of their incomes and fair interest rates and fees. The bill would also give students the right to borrow without exploitation.

We need this bill now to help students struggling to go to college. For the average family it now takes more income to pay for a child to go to college than it did, as a percentage, 25 years ago.

So we need to do everything we can to ensure all students can afford college. It is in their best interest and it is in the Nation's best interest.

I urge my colleagues to join me in supporting the Student Borrower Bill of Rights.

______

By Mr. SPECTER (for himself and Mr. Leahy):

S. 3274. 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; read the first time.

Mr. SPECTER. Mr. President, I am introducing a revised bill on asbestos reform, with the sponsorship of Senator Leahy.

This is a subject which the Senate had considered earlier this year, and it is one which I hope we will return to.

To give impetus to that, I am introducing an amended version of the asbestos trust bill which makes very substantial improvements to satisfy interests and concerns raised by a number of Senators.

The bill provides for a more prompt recovery for the sickest claimants; stronger medical criteria; preserves the ability of the bankruptcy trusts to continue paying impaired claims; has an improved allocation formula for well-insured and financially strapped defendant companies; and it has a tighter control on so-called leakage.

Last Friday, we lost a great American judge, Judge Edward R. Becker, who made such an enormous contribution to the structuring of this asbestos reform legislation. He gave his own time, came to Washington at his own cost to preside over many meetings with the so-called stakeholders, the manufacturers, the trial lawyers, the AFL-CIO representing labor, and the insurance companies. He was working on this bill making calls to Senators right up until the time that prostate cancer took him a week ago today.

When I gave him a report of our progress when it was obvious that the end was very near, he said, ``Win one for the Gipper.'' And we want to win one for the Gipper, for Judge Becker. We want to win this one for America.

I ask unanimous consent that the full text of my prepared statement and the text of the bill be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

Mr. SPECTER. I have sought recognition to comment about the status of on-going developments on asbestos reform and am pleased to introduce an amended version of S.852, the Fairness in Asbestos Injury Resolution Act of 2006, The

``FAIR Act''. In introducing this legislation today, I remind the Senate of important unfinished business that it is duty-bound to complete for the sake of thousands of victims dying from asbestos-related disease who are unable to secure compensation in today's broken tort system.

Judge Edward R. Becker and I worked for nearly three years on ways to improve S. 852, even after the bill was side-tracked on the Senate floor on February 14, 2006. Sadly, Judge Becker passed away on May 19, 2006. Judge Becker--a federal Judge for 34 years--stands today as one of the greatest citizens in the history of the city of Philadelphia, one of the greatest judges in the history of the United States, and one of my most dear and trusted friends. His contributions and tireless work on this legislation helped bring the bill to its current point, and his commitment to solving the asbestos crisis in this country should be remembered as the Senate moves forward on this bill. This new bill is a product of our continued efforts to develop the most fair and rationale system to replace the broken asbestos tort system.

More than three months have past since the Senate was prematurely diverted in its consideration of this important legislation. To remind my I colleagues, the majority leader brought the committee-reported asbestos bill to the floor on February 6 and the following day this body voted overwhelmingly (98-1) to invoke cloture on the motion to proceed. While we pursued substantive debate, opponents of the bill raised a non-substantive and never-before used procedural obstacle that blocked the Senate from further considering the legislation. This obstacle, a budgetary point of order, lacked any merit because the proposed asbestos trust fund simply does not collect or spend a single penny from the American taxpayer. And let me make clear that the commitment to using private, non-taxpayer funds is iron-clad. The trust fund considered back in February and introduced again here today is capitalized exclusively by defendant companies, insurers and existing bankruptcy trusts that have known asbestos liabilities. The bill expressly provides that ``[r]epayment of moneys borrowed by the administrator . . . is limited solely to amounts available in the

[Fund].'' It also states that ``Nothing in this Act shall be construed to create any obligation of funding from the United States Government, including any borrowing authorized . . .'' With these explicit statements throughout the bill, it is abundantly clear that this legislation would not be a burden on the U.S. Treasury. In fact, the Congressional Budget Office confirmed these statements in a letter dated February 13, 2006, concluding that ``the legislation would be deficit-neutral over the life of the fund.'' Therefore, it is time for the Senate to set aside these obstructionist tactics and move forward with this important legislation on its merits.

The bill that I am introducing today will provide substantial assurances of acceptable compensation to asbestos victims and substantial assurances to manufacturers and insurers to resolve asbestos claims with finality. Over the past three decades, a solution to the asbestos crisis has eluded Congress and the courts. Some 77 companies have gone bankrupt, thousands of individuals who have been exposed to asbestos have deadly diseases--mesothelioma and other such ailments--and are not being compensated or, because of the unfairness of the current system, see little of the awards they do win. A May 10, 2005 report released by the RAND Institute for Civil Justice estimates that nonmalignants make up about 90 percent of the litigation and most are unimpaired. According-to RAND, the number of claims continues to rise, with over 730,000 claims filed already and some 200,000 pending. The number of asbestos defendants also has risen sharply, from about 300 in the 1980s, to more than 8,400 today. Most of these defendants were users of the product, not asbestos manufacturers. These companies account for 85 percent of the U.S. economy and represent nearly every U.S. industry; including automakers, shipbuilders, textile mills, retailers, insurers, shipbuilders, electric utilities and virtually every company involved in manufacturing or construction in the last thirty years.

Asbestos leaves many victims in its wake. First and foremost, those who are sick and their families have suffered greatly and do not receive fair compensation in the tort system. Asbestos victims filing claims receive only about 42 cents for every dollar spent on asbestos litigation. The other 58 cents are consumed by the extremely high costs of litigation where 31 cents of every dollar go to defense costs, and 27 go to plaintiffs' attorneys and other related costs.

The flawed asbestos litigation system not only hurts the sick and their chances of receiving fair compensation, but also claims other victims. These include employees, retirees and shareholders of affected companies whose jobs, savings and retirement plans are jeopardized by the tidal wave of asbestos lawsuits. With asbestos litigation affecting so many companies, this also impacts the overall economy, including jobs, pensions, stock prices, tax revenues and insurance costs. Indeed, according to a 2002 study by Nobel laureate Joseph Stiglitz, asbestos bankruptcies have cost nearly 60,000 workers their jobs and $200 million in lost wages. To make matters worse, employees' retirement funds have shrunk by 25 percent.

Even this country's highest court has practically begged the Congress to fix this national asbestos litigation problem. In 1997--the first of several times it has commented on the growing asbestos problem--the Supreme Court observed:

The most objectionable aspects of this asbestos litigation can be briefly summarized: dockets in both federal and state courts continue to grow; long delays are routine; trials are too long; the same issues are litigated over and over; transaction costs exceed the victims' recovery by nearly two to one; exhaustion of assets threatens and distorts the process; and future claimants may lose altogether. . . .

To the extent anyone argues that today's bill should proceed through regular order, I would suggest that they take a hard look at the extensive consideration and analysis given to this bill beginning in early 2003 when then Chairman Hatch first introduced S. 1125. Since that time, the Judiciary Committee has held over 10 markups, 7 hearings, and, of course, countless stakeholder meetings that were moderated by the late Judge Becker. I can't think of any other bill where more time, more effort, and more man-hours have been committed to thoroughly understand and address all the complex issues in this bill. To assert that the legislation was not carefully drafted is one argument that has no basis in reality. As a result of this process, we now have before us a carefully analyzed and well thought through bill that tries to anticipate every turn, every problem and every contingency that could occur down the road if this Fund becomes law.

The legislation being introduced today builds on prior iterations of the trust fund concept. Under the proposal, the Department of Labor would house a national no-fault asbestos trust fund privately financed and guaranteed by defendant companies and insurers with proven asbestos liabilities. The bill totally exempts small business from paying into the Fund and provides a litany of safeguards to ensure that defendant companies do not encounter insolvencies or inequities because of their contributions.

Asbestos victims would submit their claims to the fund under specific and detailed procedures and receive fair compensation for their asbestos injuries they can meet certain medical criteria. These criteria are designed to prioritize monetary compensation for those with an actual impairment from asbestos disease while providing medical monitoring to those who are not sick or unimpaired. Most important, the bill caps attorneys fees at 5 percent for any monetary compensation that a victim receives through the Fund.

The national trust fund would operate as a surrogate for the tort system which would by and large cease to operate upon enactment. Claimants with individualized cases at trial or beyond would be permitted to pursue that claim in the tort system. But such cases would be few and far between when measured against the massive amount of unimpaired consolidated lawsuits that are the prime culprit to today's litigation mess.

The bill provides for a well thought out start up process that ensures swift compensation to terminal asbestos victims and mandates a reversion to a modified tort system in the event the trust fund cannot pay claims or exhausts the entire $140 billion. This latter point is especially important to note given repeated concerns that I have heard from many members about the taxpayer being on the hook. Unlike the Black Lung Program or other federal compensation program for that matter, the asbestos trust fund will affirmatively sunset once the $140 billion is used or if the Fund cannot pay claims. The sunset enables victims to pursue their claims in court but in a more equitable tort environment that prohibits forum shopping and use of junk science to prove an asbestos claim.

Every single time a concern has been raised, Judge Becker and I have studied the issue extensively. A case in point was in September 2005, when the analysis by the Bates White firm alleged that the proposed fund would face claims of over $140 billion, I called for a hearing on this issue. The hearing, which was held by the Judiciary Committee on November 17, 2005, we heard testimony on both sides of the issue. The Bates White study proved to be fatally flawed. In fact, in December 2005, CBO confirmed its original cost estimate, reaffirming that $140 billion would be sufficient to cover claims filed for compensation under the trust fund.

The asbestos trust fund bill that I am introducing today with Senator Leahy should come as no surprise to anyone because it essentially embodies the substitute bill that was pending on the floor months ago during the Senate's full consideration of asbestos reform last February. The trust fund bill being introduced today also includes specific floor amendments filed by Members from both sides of the aisle and a handful of additional new changes that we believe respond directly to concerns raised during the asbestos floor debate. The floor amendments incorporated in this bill include, among others, the Kyl 1.67 percent hardship amendment, Landrieu amendment on gulf coast hurricanes and World Trade Center victims, and Coburn amendment regarding B-readers.

Other changes made include measures that address the well-insured defendant problem, and limitation on so called ``dormant claims'' that are barred from recovery through the Fund. For the benefit of my colleagues and their staff, we will circulate a detailed section by section summary of the bill early next week during the recess and an index of key changes from the substitute. But for now, I would like to highlight some of the additional features that I believe respond to concerns raised by Members on both sides of the aisle:

Prompter Recovery for the Sickest Claimants: The new bill establishes safeguards to protect ``gaming'' of the start-up process so that those claimants that are the sickest receive prompt compensation. The bill also authorizes the Administrator to begin receiving, reviewing and deciding claims immediately following enactment of the FAIR Act. To ensure that claims processing begins immediately, the Administrator also is authorized to contract with entities experienced in claims processing on an expedited basis.

Stronger Medical Criteria: The new bill strengthens the medical criteria by adopting numerous amendments and suggestions offered by Dr. Coburn that would authorize random audits of affidavits, clarify that a claimant's diagnosis be made by a ``treating'' rather than ``examining physician'', require claimants to provide detailed, specific and credible affidavits as proof of significant asbestos exposure, and disqualify certain plaintiffs' friendly B-readers from participating in claims administration. The current tort system is riddled with fraud, stemming largely from the ``financially-motivated'' relationship between plaintiffs' attorneys and many of the doctors conducting medical tests and screening. While S. 852 contained provisions which addressed this issue (e.g., specified criminal penalties for falsified claims, 5 percent limit on attorneys' fees), these added measures provide increased protection against fraudulent practices in determining the eligibility of a claimant for compensation under the trust fund.

Preserves the Ability of Bankruptcy Trusts to Continue Paving Impaired Claims: The new bill allows existing bankruptcy trusts to retain at least 10 percent of their assets to continue paying pending impaired claims during the Fund start-up period. This measure ensures that impaired claimants receive compensation to pay medical bills while preventing such claimants from ``double-dipping'' by recovering more than they would receive under the FAIR Act.

Improved Allocation Formula for Well-Insured and Financially Strapped Defendant Companies: Due to the inherent financial pressures that contributions to the trust fund could impose on manufacturers, the new bill would provide for a much improved allocation formula for defendant companies who contribute to the Fund. It incorporates the Kyl 1.67 percent hardship amendment which allows companies to contribute annually 1.67 percent of their gross revenues in lieu of the tiering formula set forth in the bill. This measure is particularly helpful to those smaller to medium size companies that are assigned to the higher contribution tiers because of their significant asbestos liabilities. The bill also incorporates a provision that addresses the often-heard problem involving well insured defendants who currently pay little to no out-of-pocket costs in the tort system. Similar to the Kyl hardship provision, this proposal would allow certain smaller to medium size companies to contribute to the Fund based on 5 percent of their adjusted cash flows rather than the amount specified in their assigned tier.

Tighter Control on So-Called ``Leakage'': The new bill further addresses the ``leakage'' issue by improving the start-up process to ensure that exigent claims proceed through the trust fund rather than the tort system. The new bill also closes significant loopholes to ensure that preempted claims are not revived and prevents so-called

``dormant claims'' (e.g., inactive claims in the tort system that are still listed on court dockets) from being filed with the Fund.

The new bill remains both integrated and comprehensive and reflective of a remarkable will to enact legislation. This has become evident to me based on over a hundred meetings that I have personally had with Members and staff on the asbestos problem. The Senate plainly wants a more rational asbestos claims system, and I believe that this new legislation offers a realistic prospect of accomplishing that result.

If this amended bill is rejected, I do not see the agenda of the Senate Judiciary Committee revisiting this issue. I cannot conceive of a more strenuous effort being directed to this subject that has been done over the past three years. Let me make clear that this is the last best chance.

This said, I remain confident that during debate on the Senate floor, we can forge and enact a bill that is fair to the claimants and to business and that will put an end once and for all to this nightmare chapter in American legal, economic and social history. If we can summon the legislative will in a bipartisan spirit, it can be done. Anything less, would preserve the injustices of a system that even the highest court of this country has called upon the Congress to fix.

Over the coming weeks, I plan on moving ahead with this bill and will do everything in my power to see that the Senate finishes its business on asbestos reform. The Judiciary Committee has worked too hard and too long on this bill to see it all go to waste over a procedural and technical nuance. I urge the Leader to schedule time for this important legislation in the coming months, and by introducing this bill today I am hopeful that we make a first big stride in that direction. The time is now for asbestos reform and any further delay by this body will only prolong the suffering of asbestos victims, companies and their employees. I yield the floor.

____

S. 3274

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the ``Fairness in Asbestos Injury Resolution Act of 2006'' or the ``FAIR Act of 2006''.

(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. 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. 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.

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. Violations 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.

SEC. 2. FINDINGS AND PURPOSE.

(a) Findings.--Congress finds the following:

(1) Millions of Americans have been exposed to forms of asbestos that can have devastating health effects.

(2) Various injuries can be caused by exposure to some forms of asbestos, including pleural disease and some forms of cancer.

(3) The injuries caused by asbestos can have latency periods of up to 40 years, and even limited exposure to some forms of asbestos may result in injury in some cases.

(4) Asbestos litigation has had a significant detrimental effect on the country's economy, driving companies into bankruptcy, diverting resources from those who are truly sick, and endangering jobs and pensions.

(5) The scope of the asbestos litigation crisis cuts across every State and virtually every industry.

(6) The United States Supreme Court has recognized that Congress must act to create a more rational asbestos claims system. In 1991, a Judicial Conference Ad Hoc Committee on Asbestos Litigation, appointed by Chief Justice William Rehnquist, found that the ``ultimate solution should be legislation recognizing the national proportions of the problem . . . and creating a national asbestos dispute resolution scheme . . .''. The Court found in 1997 in Amchem Products Inc. v. Windsor, 521 U.S. 591, 595 (1997), that

``[t]he argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos exposure''. In 1999, the Court in Ortiz v. Fibreboard Corp., 527 U.S. 819, 821 (1999), found that the

``elephantine mass of asbestos cases . . . defies customary judicial administration and calls for national legislation''. That finding was again recognized in 2003 by the Court in Norfolk & Western Railway Co. v. Ayers, 123 S. Ct. 1210

(2003).

(7) This crisis, and its significant effect on the health and welfare of the people of the United States, on interstate and foreign commerce, and on the bankruptcy system, compels Congress to exercise its power to regulate interstate commerce and create this legislative solution in the form of a national asbestos injury claims resolution program to supersede all existing methods to compensate those injured by asbestos, except as specified in this Act.

(8) This crisis has also imposed a deleterious burden upon the United States bankruptcy courts, which have assumed a heavy burden of administering complicated and protracted bankruptcies with limited personnel.

(9) This crisis has devastated many communities across the country, but hardest hit has been Libby, Montana, where tremolite asbestos, 1 of the most deadly forms of asbestos, was contained in the vermiculite ore mined from the area and despite ongoing cleanup by the Environmental Protection Agency, many still suffer from the deadly dust.

(10) The asbestos found in Libby, Montana, tremolite asbestos, has demonstrated an unusually high level of toxicity, as compared to chrysotile asbestos. Diseases contracted from this tremolite asbestos are unique and highly progressive. These diseases typically manifest in a characteristic pleural disease pattern, and often result in severe impairment or death without radiographic interstitial disease or typical chrysotile markers of radiographic severity. According to the Agency for Toxic Substances and Disease Registry previous studies by the National Institutes of Occupational Safety and Health document significantly increased rates of pulmonary abnormalities and disease

(asbestosis and lung cancer) among former workers.

(11) Environmental Protection Agency supported studies have determined that the raw vermiculite ore mined and milled in Libby, Montana contained 21 to 26 percent asbestos, by weight. The milled ore, resulting from the processing in Libby, which was shipped out of Libby contained markedly reduced percentages of asbestos. A 1982 Environmental Protection Agency-supported study concluded that ore shipped out of Libby contained 0.3 to 7 percent asbestos, by weight.

(12) In Libby, Montana, exposure pathways are and were not limited to the workplace, rather, for decades there has been an unprecedented 24 hour per day contamination of the community's homes, playgrounds, gardens, and community air, such that the entire community of Libby, Montana, has been designated a Superfund site and is listed on the Environmental Protection Agency's National Priorities List.

(13) These multiple exposure pathways have caused severe asbestos disease and death not only in former workers at the mine and milling facilities, but also in the workers' spouses and children, and in community members who had no direct contact with the mine. According to the Environmental Protection Agency, some potentially important alternative pathways for past asbestos exposure include elevated concentrations of asbestos in ambient air and recreational exposures from children playing in piles of vermiculite. Furthermore, the Environmental Protection Agency has determined that current potential pathways of exposure include vermiculite placed in walls and attics as thermal insulation, vermiculite or ore used as road bed material, ore used as ornamental landscaping, and vermiculite or concentrated ore used as a soil and garden amendment or aggregate in driveways.

(14) The Environmental Protection Agency also concluded,

``Asbestos contamination exists in a number of potential source materials at multiple locations in and around the residential and commercial area of Libby. . . While data are not yet sufficient to perform reliable human-health risk evaluations for all sources and all types of disturbance, it is apparent that releases of fiber concentrations higher than Occupational Safety and Health Administration standards may occur in some cases . . . and that screening-level estimates of lifetime excess cancer risk can exceed the upper-bound risk range of 1E-04 usually used by the Environmental Protection Agency for residents under a variety of exposure scenarios. The occurrence of nonoccupational asbestos-related disease that has been observed among Libby residents is extremely unusual, and has not been associated with asbestos mines elsewhere, suggesting either very high and prolonged environmental exposures and/or increased toxicity of this form of amphibole asbestos.''.

(15) According to a November 2003 article from the Journal Environmental Health Perspectives titled, Radiographic Abnormalities and Exposure to Asbestos-Contaminated Vermiculite in the Community of Libby, Montana, USA, Libby residents who have evidence of ``no apparent exposure'', i.e., did not work with asbestos, were not a family member of a former worker, etc., had a greater rate of pleural abnormalities (6.7 percent) than did those in control groups or general populations found in other studies from other states (which ranged from 0.2 percent to 4.6 percent).

``Given the ubiquitous nature of vermiculite contamination in Libby, along with historical evidence of elevated asbestos concentrations in the air, it would be difficult to find participants who could be characterized as unexposed.''.

(16) Nothing in this Act is intended to increase the Federal deficit or impose any burden on the taxpayer. The Office of Asbestos Disease Compensation established under this Act shall be privately funded by annual payments from defendant participants that have been subject to asbestos liability and their insurers. Section 406(b) of this Act expressly provides that nothing in this Act shall be construed to create any obligation of funding from the United States or to require the United States to satisfy any claims if the amounts in the Fund are inadequate. Any borrowing by the Fund is limited to monies expected to be paid into the Fund, and the Administrator shall have no fiscal authority beyond the amount of private money coming into the Fund. This Act provides the Administrator with broad enforcement authority to pursue debts to the Fund owed by defendant participants or insurer participants and their successors in interest.

(b) Purpose.--The purpose of this Act is to--

(1) create a privately funded, publicly administered fund to provide the necessary resources for a fair and efficient system to resolve asbestos injury claims that will provide compensation for legitimate present and future claimants of asbestos exposure as provided in this Act;

(2) provide compensation to those present and future victims based on the severity of their injuries, while establishing a system flexible enough to accommodate individuals whose 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 companies with asbestos liability, diverted resources from the truly sick, and endangered jobs and pensions.

SEC. 3. DEFINITIONS.

In this Act, the following definitions shall apply:

(1) Administrator.--The term ``Administrator'' means the Administrator of the Office of Asbestos Disease Compensation appointed under section 101(b).

(2) Asbestos.--The term ``asbestos'' includes--

(A) chrysotile;

(B) amosite;

(D) tremolite asbestos;

(E) winchite asbestos;

(F) richterite asbestos;

(G) anthophyllite asbestos;

(H) actinolite asbestos;

(I) asbestiform amphibole minerals;

(J) any of the minerals listed under subparagraphs (A) through (I) that has been chemically treated or altered, and any asbestiform variety, type, or component thereof; and

(K) asbestos-containing material, such as asbestos-containing products, automotive or industrial parts or components, equipment, improvements to real property, and any other material that contains asbestos in any physical or chemical form.

(3) Asbestos claim.--

(A) In general.--The term ``asbestos claim'' means any claim, premised on any theory, 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 exposure to asbestos, including loss of consortium, wrongful death, and any derivative claim made by, or on behalf of, any exposed person or any representative, spouse, parent, child, or other relative of any exposed person.

(B) Exclusion.--The term does not include--

(i) claims alleging damage or injury to tangible property;

(ii) claims for benefits under a workers' compensation law or veterans' benefits program;

(iii) claims arising under any governmental or private health, welfare, disability, death or compensation policy, program or plan;

(iv) claims arising under any employment contract or collective bargaining agreement;

(v) claims arising out of medical malpractice; or

(vi) any claim arising under--

(I) the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.);

(II) title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.);

(III) the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.);

(IV) the Equal Pay Act of 1963 (29 U.S.C. 206);

(V) the Family and Medical Leave Act of 1993 (29 U.S.C. 2601 et seq.);

(VI) section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983); or

(VII) the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.).

(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 equity or in admiralty, but does not include an action relating to any workers' compensation law, or a proceeding for benefits under any veterans' benefits program.

(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 final judgment or settlement for an asbestos-related injury that is the subject of a claim filed under section 113.

(7) Eligible disease or condition.--The term ``eligible disease or condition'' means the extent that an illness meets the medical criteria requirements established under subtitle C of title I.

(8) Employers' liability act.--The term ``Act of April 22, 1908 (45 U.S.C. 51 et seq.), commonly known as the Employer's Liability Act'' shall, for all purposes of this Act, include the Act of June 5, 1920 (46 U.S.C. App. 688), commonly known as the Jones Act, and the related phrase ``operations as a common carrier by railroad'' shall include operations as an employer of seamen.

(9) Fund.--The term ``Fund'' means the Asbestos Injury Claims Resolution Fund established under section 221.

(10) 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, supervision, or ancillary receivership of an insurer under State law.

(11) Law.--The term ``law'' includes all law, judicial or administrative decisions, rules, regulations, or any other principle or action having the effect of law.

(12) Participant.--

(A) In general.--The term ``participant'' means any person subject to the funding requirements of title II, including--

(i) any defendant participant subject to 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 participant.

(B) Exception.--

(i) In general.--A defendant participant shall not include any person protected from any asbestos claim by reason of an injunction entered in connection with a plan of reorganization under chapter 11 of title 11, United States Code, that has been confirmed by a duly entered order or judgment of a court that is no longer subject to any appeal or judicial review, and the substantial consummation, as such term is defined in section 1101(2) of title 11, United States Code, of such plan of reorganization 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 injunction described under clause (i).

(13) Person.--The term ``person''--

(A) means an individual, trust, firm, joint stock company, partnership, association, insurance company, reinsurance company, or corporation; and

(B) does not include the United States, any State or local government, or subdivision thereof, including school districts and any general or special function governmental unit established under State law.

(14) State.--The term ``State'' means any State of the United States and also includes the District of Columbia, Commonwealth of Puerto Rico, the Northern Mariana Islands, the Virgin Islands, Guam, American Samoa, and any other territory or possession of the United States or any political subdivision of any of the entities under this paragraph.

(15) Substantially continues.--The term ``substantially continues'' means that the business operations have not been significantly modified by the change in ownership.

(16) Successor in interest.--The term ``successor in interest'' means any person that, in 1 or a series of transactions, acquires all or substantially all of the assets and properties (including, without limitation, under section 363(b) or 1123(b)(4) of title 11, United States Code), and substantially continues the business operations, of a participant. The factors to be considered in determining whether a person is a successor in interest include--

(A) retention of the same facilities or location;

(B) retention of the same employees;

(D) retention of the same supervisory personnel;

(E) continuity of assets;

(F) production of the same product or offer of the same service;

(G) retention of the same name;

(H) maintenance of the same customer base;

(I) identity of stocks, stockholders, and directors between the asset seller and the purchaser; or

(J) whether the successor holds itself out as continuation of previous enterprise, but expressly does not include whether the person actually knew of the liability of the participant under this Act.

(17) Veterans' benefits program.--The term ``veterans' benefits program'' means any program for benefits in connection with military service administered by the Veterans' Administration under title 38, United States Code.

(18) Workers' compensation law.--The term ``workers' compensation law''--

(A) means a law respecting a program administered by a State or the United States to provide benefits, funded by a responsible employer or its insurance carrier, for occupational diseases or injuries or for disability or death caused by occupational diseases or injuries;

(B) includes the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 901 et seq.) and chapter 81 of title 5, United States Code; and

(C) does not include the Act of April 22, 1908 (45 U.S.C. 51 et seq.), commonly known as the Employers' Liability Act, or damages recovered by any employee in a liability action against an employer.

(19) Class action trust.--The term ``class action trust'' means a trust or similar entity established to hold assets for the payment of asbestos claims asserted against a debtor or participating defendant, under a settlement that--

(A) is a settlement of class action claims under rule 23 of the Federal Rules of Civil Procedure; and

(B) has been approved by a final judgment of a United States district court before the date of enactment of this Act.

(20) Debtor.--The term ``debtor''--

(A) means--

(i) a person that is subject to a case pending under a chapter of title 11, United States Code, on the date of enactment of this Act or at any time during the 1-year period immediately preceding that date, irrespective of whether the debtor's case under that title has been dismissed; and

(ii) all of the direct or indirect majority-owned subsidiaries of a person described under clause (i), regardless of whether any such majority-owned subsidiary has a case pending under title 11, United States Code; and

(B) shall not include an entity--

(i) subject to chapter 7 of title 11, United States Code, if a final decree closing the estate shall have been entered before the date of enactment of this Act; or

(ii) subject to chapter 11 of title 11, United States Code, if a plan of reorganization for such entity shall have been confirmed by a duly entered order or judgment of a court that is no longer subject to any appeal or judicial review, and the substantial consummation, as such term is defined in section 1101(2) of title 11, United States Code, of such plan of reorganization has occurred.

(21) Trust.--The term ``trust'' means any trust, as described in sections 524(g)(2)(B)(i) or 524(h) of title 11, United States Code, or established in conjunction with an order issued under section 105 of title 11, United States Code, established or formed under the terms of a chapter 11 plan of reorganization, which in whole or in part provides compensation for asbestos claims.

TITLE I--ASBESTOS CLAIMS RESOLUTION

Subtitle A--Office of Asbestos Disease Compensation

SEC. 101. ESTABLISHMENT OF OFFICE OF ASBESTOS DISEASE

COMPENSATION.

(a) In General.--

(1) Establishment.--There is established within the Department of Labor the Office of Asbestos Disease Compensation (hereinafter referred to in this Act as the

``Office''), which shall be headed by an Administrator.

(2) Purpose.--The purpose of the Office is to provide timely, fair compensation, in the amounts and under the terms specified in this Act, on a no-fault basis and in a nonadversarial manner, to individuals whose health has been adversely affected by exposure to asbestos.

(3) Termination of the office.--The Office of Asbestos Disease Compensation shall terminate effective not later than 12 months following certification by the Administrator that the Fund has neither paid a claim in the previous 12 months nor has debt obligations remaining to pay.

(4) Expenses.--There shall be available from the Fund to the Administrator such sums as are necessary for any and all expenses associated with the Office of Asbestos Disease Compensation and necessary to carry out the purposes of this Act. Expenses covered should include--

(A) management of the Fund;

(B) personnel salaries and expenses, including retirement and similar benefits;

(D) all administrative and legal expenses; and

(E) any other sum that could be attributable to the Fund.

(b) Appointment of Administrator.--

(1) In general.--The Administrator of the Office of Asbestos Disease Compensation shall be appointed by the President, by and with the advice and consent of the Senate. The Administrator shall serve for a term of 5 years.

(2) Reporting.--The Administrator shall report directly to the Assistant Secretary of Labor for the Employment Standards Administration.

(1) In general.--The Administrator shall be responsible for--

(A) processing claims for compensation for asbestos-related injuries and paying compensation to eligible claimants under the criteria and procedures established under title I;

(B) determining, levying, and collecting assessments on participants under title II;

(C) appointing or contracting for the services of such personnel, making such expenditures, and taking any other actions as may be necessary and appropriate to carry out the responsibilities of the Office, including entering into cooperative agreements with other Federal agencies or State agencies and entering into contracts with nongovernmental entities;

(D) conducting such audits and additional oversight as necessary to assure the integrity of the program;

(E) managing the Asbestos Injury Claims Resolution Fund established under section 221, including--

(i) administering, in a fiduciary capacity, the assets of the Fund for the primary purpose of providing benefits to asbestos claimants and their beneficiaries;

(ii) defraying the reasonable expenses of administering the Fund;

(iii) investing the assets of the Fund in accordance with section 222(b);

(iv) retaining advisers, managers, and custodians who possess the necessary facilities and expertise to provide for the skilled and prudent management of the Fund, to assist in the development, implementation and maintenance of the Fund's investment policies and investment activities, and to provide for the safekeeping and delivery of the Fund's assets; and

(v) borrowing amounts authorized by section 221(b) on appropriate terms and conditions, including pledging the assets of or payments to the Fund as collateral;

(F) promulgating such rules, regulations, and procedures as may be necessary and appropriate to implement the provisions of this Act;

(G) making such expenditures as may be necessary and appropriate in the administration of this Act;

(H) excluding evidence and disqualifying or debarring any attorney, physician, provider of medical or diagnostic services, including laboratories and others who provide evidence in support of a claimant's application for compensation where the Administrator determines that materially false, fraudulent, or fictitious statements or practices have been submitted or engaged in by such individuals or entities; and

(I) having all other powers incidental, necessary, or appropriate to carrying out the functions of the Office.

(2) Certain enforcements.--For each infraction relating to paragraph (1)(H), the Administrator also may impose a civil penalty not to exceed $10,000 on any person or entity found to have submitted or engaged in a materially false, fraudulent, or fictitious statement or practice under this Act. The Administrator shall prescribe appropriate regulations to implement paragraph (1)(H).

(3) Selection of deputy administrators.--The Administrator shall select a Deputy Administrator for Claims Administration to carry out the Administrator's responsibilities under this title and a Deputy Administrator for Fund Management to carry out the Administrator's responsibilities under title II of this Act. The Deputy Administrators shall report directly to the Administrator and shall be in the Senior Executive Service.

(d) Expeditious Determinations.--The Administrator shall prescribe rules to expedite claims for asbestos claimants with terminal circumstances in order to expedite the payment of such claims as soon as possible after startup of the Fund. The Administrator shall contract out the processing of such claims.

(e) Audit and Personnel Review Procedures.--The Administrator shall establish audit and personnel review procedures for evaluating the accuracy of eligibility recommendations of agency and contract personnel.

(f) Application of FOIA.--

(1) In general.--Section 552 of title 5, United States Code

(commonly referred to as the Freedom of Information Act) shall apply to the Office of Asbestos Disease Compensation and the Asbestos Insurers Commission.

(2) Confidentiality of financial records.--

(A) In general.--Any person may label any record submitted under this section as a confidential commercial or financial record for the purpose of requesting exemption from disclosure under section 552(b)(4) of title 5, United States Code.

(B) Duties of administrator and chairman of the asbestos insurers commission.--The Administrator and Chairman of the Asbestos Insurers Commission--

(i) shall adopt procedures for--

(I) handling submitted records marked confidential; and

(II) protecting from disclosure records they determine to be confidential commercial or financial information exempt under section 552(b)(4) of title 5, United States Code; and

(ii) may establish a pre-submission determination process to protect from disclosure records on reserves and asbestos-related liabilities submitted by any defendant participant that is exempt under section 552(b)(4) of title 5, United States Code.

(C) Review of complaints.--Nothing in this section shall supersede or preempt the de novo review of complaints filed under section 552(b)(4) of title 5, United States Code.

(3) Confidentiality of medical records.--Any claimant may designate any record submitted under this section as a confidential personnel or medical file for purposes of section 552 of title 5, United States Code. The Administrator and the Chairman of the Asbestos Insurers Commission shall adopt procedures for designating such records as confidential.

SEC. 102. ADVISORY COMMITTEE ON ASBESTOS DISEASE

COMPENSATION.

(a) Establishment.--

(1) In general.--Not later than 120 days after the date of enactment of this Act, the Administrator shall establish an Advisory Committee on Asbestos Disease Compensation

(hereinafter the ``Advisory Committee'').

(2) Composition and appointment.--The Advisory Committee shall be composed of 20 members, appointed as follows--

(A) The Majority and Minority Leaders of the Senate, the Speaker of the House, and the Minority Leader of the House shall each appoint 4 members. Of the 4--

(i) 2 shall be selected to represent the interests of claimants, at least 1 of whom shall be selected from among individuals recommended by recognized national labor federations; and

(ii) 2 shall be selected to represent the interests of participants, 1 of whom shall be selected to represent the interests of the insurer participants and 1 of whom shall be selected to represent the interests of the defendant participants.

(B) The Administrator shall appoint 4 members, who shall be individuals with qualifications and expertise in occupational or pulmonary medicine, occupational health, workers' compensation programs, financial administration, investment of funds, program auditing, or other relevant fields.

(3) Qualifications.--All of the members described in paragraph (2) shall have expertise or experience relevant to the asbestos compensation program, including experience or expertise in diagnosing asbestos-related diseases and conditions, assessing asbestos exposure and health risks, filing asbestos claims, administering a compensation or insurance program, or as actuaries, auditors, or investment managers. None of the members described in paragraph (2)(B) shall be individuals who, for each of the 5 years before their appointments, earned more than 15 percent of their income by serving in matters related to asbestos litigation as consultants or expert witnesses.

(b) Duties.--The Advisory Committee shall advise the Administrator on--

(1) claims filing and claims processing procedures;

(2) claimant assistance programs;

(3) audit procedures and programs to ensure the quality and integrity of the compensation program;

(4) the development of a list of industries, occupations and time periods for which there is a presumption of substantial occupational exposure to asbestos;

(5) recommended analyses or research that should be conducted to evaluate past claims and to project future claims under the program;

(6) the annual report required to be submitted to Congress under section 405; and

(7) such other matters related to the implementation of this Act as the Administrator considers appropriate.

(1) Each member of the Advisory Committee shall be appointed for a term of 3 years, except that, of the members first appointed--

(A) 6 shall be appointed for a term of 1 year;

(B) 7 shall be appointed for a term of 2 years; and

(2) Any member appointed to fill a vacancy occurring before the expiration of the term shall be appointed only for the remainder of such term.

(3) The Administrator shall designate a Chairperson and Vice Chairperson from among members of the Advisory Committee appointed under subsection (a)(2)(B).

(4) The Advisory Committee shall meet at the call of the Chairperson or the majority of its members, and at a minimum shall meet at least 4 times per year during the first 5 years of the asbestos compensation program, and at least 2 times per year thereafter.

(5) The Administrator shall provide to the Committee such information as is necessary and appropriate for the Committee to carry out its responsibilities under this section. The Administrator may, upon request of the Advisory Committee, secure directly from any Federal, State, or local department or agency such information as may be necessary and appropriate to enable the Advisory Committee to carry out its duties under this section. Upon request of the Administrator, the head of such department or agency shall furnish such information to the Advisory Committee.

(6) The Administrator shall provide the Advisory Committee with such administrative support as is reasonably necessary to enable it to perform its functions.

(d) Expenses.--Members of the Advisory Committee, other than full-time employees of the United States, while attending meetings of the Advisory Committee or while otherwise serving at the request of the Administrator, and while serving away from their homes or regular places of business, shall be allowed travel and meal expenses, including per diem in lieu of subsistence, as authorized by section 5703 of title 5, United States Code, for individuals in the Government serving without pay.

SEC. 103. MEDICAL ADVISORY COMMITTEE.

(a) In General.--The Administrator shall establish a Medical Advisory Committee to provide expert advice regarding medical issues arising under the statute.

(b) Qualifications.--None of the members of the Medical Advisory Committee shall be individuals who, for each of the 5 years before their appointments, earned more than 15 percent of their income by serving in matters related to asbestos litigation as consultants or expert witnesses.

SEC. 104. CLAIMANT ASSISTANCE.

(a) Establishment.--Not later than 120 days after the enactment of this Act, the Administrator shall establish a comprehensive asbestos claimant assistance program to--

(1) publicize and provide information to potential claimants about the availability of benefits for eligible claimants under this Act, and the procedures for filing claims and for obtaining assistance in filing claims;

(2) provide assistance to potential claimants in preparing and submitting claims, including assistance in obtaining the documentation necessary to support a claim and any other appropriate paralegal assistance;

(3) respond to inquiries from claimants and potential claimants;

(4) provide training with respect to the applicable procedures for the preparation and filing of claims to persons who provide assistance or representation to claimants; and

(5) provide for the establishment of a website where claimants may access all relevant forms and information.

(b) Resource Centers.--The claimant assistance program shall provide for the establishment of resource centers in areas where there are determined to be large concentrations of potential claimants. These centers shall be located, to the extent feasible, in facilities of the Department of Labor or other Federal agencies.

(c) Contracts.--The claimant assistance program may be carried out in part through contracts with labor organizations, community-based organizations, and other entities which represent or provide services to potential claimants, except that such organizations may not have a financial interest in the outcome of claims filed with the Office.

(d) Legal Assistance.--

(1) In general.--As part of the program established under subsection (a), the Administrator shall establish a legal assistance program to provide assistance to asbestos claimants concerning legal representation issues.

(2) List of qualified attorneys.--As part of the program, the Administrator shall maintain a roster of qualified attorneys who have agreed to provide pro bono services to asbestos claimants under rules established by the Administrator. The claimants shall not be required to use the attorneys listed on such roster.

(3) Notice.--

(A) Notice by administrator.--The Administrator shall provide asbestos claimants with notice of, and information relating to--

(i) pro bono services for legal assistance available to those claimants; and

(ii) any limitations on attorneys fees for claims filed under this title.

(B) Notice by attorneys.--Before a person becomes a client of an attorney with respect to an asbestos claim, that attorney shall provide notice to that person of pro bono services for legal assistance available for that claim.

(e) Attorney's Fees.--

(1) Limitation.--

(A) In general.--Notwithstanding any contract, the representative of an individual may not receive, for services rendered in connection with the claim of an individual under the Fund, more than 5 percent of a final monetary award made (whether by the Administrator initially or as a result of administrative review) under the Fund on such claim.

(B) Review of proposed decision.--

(i) Reasonable fee.--If an individual seeks a review of a proposed decision in accordance with section 114(d) and is awarded compensation, the representative of such individual may, in lieu of seeking payment for services rendered subject to the limitation described under subparagraph (A), obtain a reasonable attorney's fee to be paid from any compensation recovered by the individual.

(ii) Calculation of reasonable fee.--Any fee obtained under clause (i) shall be calculated by multiplying a reasonable hourly rate by the number of hours reasonably expended on the claim of the individual.

(iii) Requirements for compensation.--A representative of an individual shall not be eligible to receive a fee under clause (i), unless--

(I) such representative submits to the Administrator detailed contemporaneous billing records for any work actually performed in the course of representation of an individual;

(II) the Administrator finds, based on billing records submitted by the representative under subclause (I), that the work for which compensation is sought was reasonably performed, and that the requested hourly fee is reasonable; and

(III) the claimant seeking a review of a proposed decision has been awarded monetary compensation by the Administrator.

(iv) No fee for no compensation.--If the claimant is denied any compensation after review of the claim, the claimant's representative may not receive a fee from either the claimant or the Fund.

(2) Penalty.--Any representative of an asbestos claimant who violates this subsection shall be fined not more than the greater of--

(A) $5,000; or

(B) twice the amount received by the representative for services rendered in connection with each such violation.

SEC. 105. PHYSICIANS PANELS.

(a) Appointment.--The Administrator shall, in accordance with section 3109 of title 5, United States Code, appoint physicians with experience and competency in diagnosing asbestos-related diseases to be available to serve on Physicians Panels, as necessary to carry out this Act.

(b) Formation of Panels.--

(1) In general.--The Administrator shall periodically determine--

(A) the number of Physicians Panels necessary for the efficient conduct of the medical review process under section 121;

(B) the number of Physicians Panels necessary for the efficient conduct of the exceptional medical claims process under section 121; and

(2) Expertise.--Each Physicians Panel shall be composed of members having the particular expertise determined necessary by the Administrator, randomly selected from among the physicians appointed under subsection (a) having such expertise.

(3) Panel members.--Except as provided under subparagraph

(B), each Physicians Panel shall consist of 3 physicians, 2 of whom shall be designated to participate in each case submitted to the Physicians Panel, and the third of whom shall be consulted in the event of disagreement.

(1) a physician licensed in any State;

(2) board-certified in pulmonary medicine, occupational medicine, internal medicine, oncology, or pathology; and

(3) an individual who, for each of the 5 years before and during his or her appointment to a Physicians Panel, has earned not more than 15 percent of his or her income as an employee of a participating defendant or insurer or a law firm representing any party in asbestos litigation or as a consultant or expert witness in matters related to asbestos litigation.

(d) Duties.--Members of a Physicians Panel shall--

(1) make such medical determinations as are required to be made by Physicians Panels under section 121; and

(2) perform such other functions as required under this Act.

(e) Compensation.--Notwithstanding any limitation otherwise established under section 3109 of title 5, United States Code, the Administrator shall be authorized to pay members of a Physician Panel such compensation as is reasonably necessary to obtain their services.

(f) Federal Advisory Committee Act.--A Physicians Panel established under this section shall not be subject to the Federal Advisory Committee Act (5 U.S.C. App. 2).

SEC. 106. PROGRAM STARTUP.

(a) Immediate Startup.--

(1) In general.--Subject to section 101(d), the Administrator may--

(A) start receiving, reviewing, and deciding claims immediately upon the date of enactment of this Act; and

(B) reimburse the Department of Labor from the Fund for any expense incurred--

(i) before that date of enactment in preparation for carrying out any of the responsibilities of the Administrator under this Act; and

(ii) during the 60-day period following that date of enactment to carry out such responsibilities.

(2) Interim regulations.--Not later than 90 days after the date of enactment of this Act, the Administrator shall promulgate interim regulations and procedures for the processing of claims under this title and the operation of the Fund under title II, including procedures for the expediting of terminal health claims, and processing of claims through the claims facility.

(b) Interim Personnel and Contracting.--The Secretary of Labor and the Assistant Secretary of Labor for the Employment Standards Administration shall make available to the Administrator on a temporary basis such personnel and other resources as may be necessary to facilitate the expeditious startup of the program. The Administrator may in addition contract with individuals or entities having relevant experience to assist in the expeditious startup of the program including entering into contracts on an expedited or sole source basis during the startup period for the purpose of processing claims or providing financial analysis or assistance. Such relevant experience shall include, but not be limited to, experience with the review of workers' compensation, occupational disease, or similar claims and with financial matters relevant to the operation of the program.

(1) In general.--The Administrator shall develop procedures, as provided in section 106(f), to provide for an expedited process to categorize, evaluate, and pay terminal health claims. Such procedures, as provided in section 106(f), shall include, pending promulgation of final regulations, adoption of interim regulations as needed for processing of terminal health claims.

(2) Eligible terminal health claims.--A claim shall qualify for treatment as a terminal health claim if--

(A) the claimant is living and provides a diagnosis of mesothelioma meeting the requirements of section 121(d)(9);

(B) the claimant is living and provides a credible declaration or affidavit, from a diagnosing physician who has examined the claimant within 120 days before the date of such declaration or affidavit, that the physician has diagnosed the claimant as being terminally ill from an asbestos-related illness and having a life expectancy of less than 1 year due to such asbestos-related illness; or

(i) was living when the claim was filed with the Fund, or if before the implementation of interim regulations for the filing of claims with the Fund, on the date of enactment of this Act;

(ii) has since died from a malignant disease or condition; and

(iii) has not received compensation from the Fund for the disease or condition for which the claim was filed.

(3) Additional terminal health claims.--The Administrator may, in final regulations promulgated under section 101(c), designate additional categories of claims that qualify as terminal health claims under this subsection except that exceptional medical claims may not proceed.

(4) Claims facility.--To facilitate the prompt payment of terminal health claims prior to the Fund being certified as operational, the Administrator shall contract with a claims facility, which applying the medical criteria of section 121, shall process and pay claims in accordance with section 106(f)(2). The processing and payment of claims shall be subject to regulations promulgated under this Act.

(5) Authorization for contracts with claims facilities.--The Administrator may enter into contracts with a claims facility for the processing of claims (except for exceptional medical claims) in accordance with this title.

(d) Prioritization of Claims.--The Administrator shall, in final regulations promulgated under section 101(c), designate categories of claims to be handled on an expedited basis. The Administrator shall prioritize the processing and payment of health claims involving claimants with the most serious health claims. The Administrator shall also prioritize claims from claimants who face extreme financial hardship.

(e) Interim Administrator.--Until an Administrator is appointed and confirmed under section 101(b), the responsibilities of the Administrator under this Act shall be performed by the Assistant Secretary of Labor for the Employment Standards Administration, who shall have all the authority conferred by this Act on the Administrator and who shall be deemed to be the Administrator for purposes of this Act. Before final regulations being promulgated relating to claims processing, the Interim Administrator may prioritize claims processing, without regard to the time requirements prescribed in subtitle B of this title, based on severity of illness and likelihood that exposure to asbestos was a substantial contributing factor for the illness in question.

(f) Stay of Claims; Return to Tort System.--

(1) Stay of claims.--Notwithstanding any other provision of this Act, any asbestos claim pending on the date of enactment of this Act, other than a claim to which section 403(d)(2) applies or as otherwise provided in section 402(f), stayed.

(2) Terminal health claims.--

(A) Procedures for settlement of terminal health claims.--

(i) In general.--Any person that has filed a terminal health claim, as provided under subsection (c)(2), seeking a judgment or order for monetary damages in any Federal or State court before the date of the enactment of this Act, shall seek a settlement in accordance with this paragraph. Any person with a terminal health claim, as provided under subsection (c)(2), that arises after such date of enactment shall seek a settlement in accordance with this paragraph.

(ii) Filing.--

(I) In general.--At any time before the Fund or claims facility is certified as operational and paying terminal health claims at a reasonable rate, any person with a terminal health claim as described under clause (i) shall file a notice of their intent to seek a settlement or shall file their exigent health claim with the Administrator or claims facility. Filing of an exigent health claim with the Administrator or claims facility may serve as notice of intent to seek a settlement.

(II) Exception.--Any person who seeks compensation for an exigent health claim from a trust in accordance with section 402(f) shall not be eligible to seek a settlement or settlement offer under this paragraph.

(iii) Terminal health claim information.--To file a terminal health claim, each individual shall provide all of the following information:

(I) The amount received or entitled to be received as a result of all collateral source compensation under section 134, and copies of all settlement agreements and related documents sufficient to show the accuracy of that amount.

(II) A description of any claims for compensation for an asbestos related injury or disease filed by the claimant with any trust or class action trust, and the status or disposition or any such claims.

(III) All information that the claimant would be required to provide to the Administrator in support of a claim under sections 113(c) and 121.

(IV) A certification by the claimant that the information provided is true and complete. The certification provided under this subclause shall be subject to the same penalties for false or misleading statements that would be applicable with regard to information provided to the Administrator or claims facility in support of a claim.

(V) For terminal health claims arising after the date of enactment of this Act, the claimant shall identify each defendant that would be an appropriate defendant in a civil action seeking damages for the asbestos claim of the claimant. Identification of all potential participants shall be made in good faith by the claimant.

(iv) Timing.--A claimant who has filed a notice of their intent to seek a settlement under clause (ii) shall within 60 days after filing notice provide to the Administrator or claims facility the information required under clause (iii). If a claimant has filed an exigent health claim under clause

(ii) the Administrator shall provide all affected defendants the information required under clause (iii).

(v) Website.--

(I) Posting.--The Administrator or claims facility shall post the information described in subclause (II) to a secure website, accessible on a passcode-protected basis to participants.

(II) Required information.--The website established under subclause (I) shall contain a listing of--

(aa) each claimant that has filed a notice of intent to seek a settlement or claim under this clause;

(bb) the name of such claimant; and

(cc) if applicable--

(AA) the name of the court where such claim was filed;

(BB) the case or docket number of such claim; and

(CC) the date such claim was filed.

(III) Prohibitions.--The website established under subclause (I) shall not contain specific health or medical information or social security numbers.

(IV) Participant access.--A participant's access to the website established under subclause (I) shall be limited on a need to know basis, and participants shall not disclose or sell data, or retain data for purposes other than paying an asbestos claim.

(V) Violations.--Any person or other entity that violates any provision of this clause, including by breaching any data posted on the website, shall be subject to an injunction, or civil penalties, or both.

(vi) Administrator or claims facility certification of settlement.--

(I) Determination.--Within 60 days after the information under clause (iii) is provided, the Administrator or claims facility shall determine whether or not the claim meets the requirements of a terminal health claim.

(II) Requirements met.--If the Administrator or claims facility determines that the claim meets the requirements of a terminal health claim, the Administrator or claims facility shall immediately--

(aa) issue and serve on all parties a certification of eligibility of such claim;

(bb) determine the value of such claim under the Fund by subtracting from the amount in section 131 the total amount of collateral source compensation received by the claimant; and

(cc) pay the award of compensation to the claimant under clause (xiii).

(III) Requirements not met.--If the requirements under clause (iii) are not met, the claimant shall have 30 days to perfect the claim. If the claimant fails to perfect the claim within that 30-day period or the Administrator or claims facility determines that the claim does not meet the requirements of a terminal health claim, the claim shall not be eligible to proceed under this paragraph. A claimant may appeal any decision issued by a claims facility with the Administrator in accordance with section 114.

(vii) Failure to certify.--If the Administrator or claims facility is unable to process the claim and does not make a determination regarding the certification of the claim as required under clause (vi), the Administrator or claims facility shall within 10 days after the end of the 60-day period referred to under clause (vi)(I) provide notice of the failure to act to the claimant and the defendants in the pending Federal or State court action or the defendants identified under clause (iii)(IV). If the Administrator or claims facility fails to provide such notice within 10 days, the claimant may elect to provide the notice to the affected defendants to prompt a settlement offer. The Administrator or claims facility shall list all terminal health claims for which notice has been provided under this clause on the website established under clause (v).

(viii) Failure to pay.--If the Administrator or claims facility does not pay the award as required under clause

(xiii), the Administrator shall refer the certified claim within 10 days as a certified terminal health claim to the defendants in the pending Federal and State court action or to the potential defendants identified under clause (iii)(IV) for terminal claims arising after the date of enactment of this Act. The Administrator or claims facility shall list all terminal health claims for which notice has been provided under this clause on the website established under clause

(v).

(ix) Settlement offer.--Any participant or participants may, within 30 days after receipt of such notice as provided under clause (vii) or (viii), file and serve on all parties and the Administrator a good faith settlement offer in an aggregate amount not to exceed the total amount to which the claimant would receive under section 131. If the aggregate amount offered by all participants exceeds the award determined by the Administrator, all offers shall be deemed reduced pro rata until the aggregate amount equals the award amount. An acceptance of such settlement offer for claims pending before the date of enactment of this Act shall be subject to approval by the trial judge or authorized magistrate in the court where the claim is pending. The court shall approve any such accepted offer within 20 days after a request, unless there is evidence of bad faith or fraud. No court approval is necessary if the terminal health claim was certified by the Administrator or claims facility under clause (vi).

(x) Acceptance or rejection.--Within 20 days after receipt of the settlement offer, or the amended settlement offer, the claimant shall either accept or reject such offer in writing. If the amount of the settlement offer made by the Administrator, claims facility, or participants equals 100 percent of what the claimant would receive under the Fund, the claimant shall accept such settlement in writing.

(xi) Opportunity to cure.--If the settlement offer is rejected for being less than what the claimant would receive under the Fund, the participants shall have 10 business days to make an amended offer. If the amended offer equals 100 percent of what the claimant would receive under the Fund, the claimant shall accept such settlement offer in writing. If the settlement offer is again rejected as less than what the claimant would receive under the Fund or if participants fail to make an amended offer, the claimant shall recover 150 percent of what the claimant would receive under the Fund. If the amount of the amended settlement offer made by the Administrator, claims facility, or participants equals 150 percent of what the claimant would receive under the Fund, the claimant shall accept such settlement in writing.

(xii) Payment schedule.--

(I) Mesothelioma claimants.--For mesothelioma claimants--

(aa) an initial payment of 50 percent shall be made within 30 days after the date the settlement is accepted and the second and final payment shall be made 6 months after date the settlement is accepted; or

(bb) if the Administrator determines that the payment schedule would impose a severe financial hardship on the Fund, or if the court determines that the settlement offer would impose a severe financial hardship on the participant, the payments may be extended 50 percent in 6 months and 50 percent 11 months after the date the settlement offer is accepted.

(II) Other terminal claimants.--For other terminal claimants, as defined under section 106(c)(2)(B) and (C)--

(aa) the initial payment of 50 percent shall be made within 6 months after the date the settlement is accepted and the second and final payment shall be made 12 months after date the settlement is accepted; or

(bb) if the Administrator determines that the payment schedule would impose a severe financial hardship on the Fund, or if the court determines that the settlement offer would impose a severe financial hardship on the participants, the payments may be extended 50 percent within 1 year after the date the settlement offer is accepted and 50 percent in 2 years after date the settlement offer is accepted.

(III) Release.--Once a claimant has received final payment of the accepted settlement offer, and penalty payment if applicable, the claimant shall release any outstanding asbestos claims.

(xiii) Recovery of costs.--

(I) In general.--Any participant whose settlement offer is accepted may recover the cost of such settlement by deducting from the participant's next and subsequent contributions to the Fund the full amount of the payment made by such participant to the terminal health claimant, unless the Administrator finds, on the basis of clear and convincing evidence, that the participant's offer is not in good faith. Any such payment shall be considered a payment to the Fund for purposes of section 404(e)(1) and in response to the payment obligations imposed on participants in title II.

(II) Reimbursement.--Notwithstanding subclause (I), if the deductions from the participant's next and subsequent contributions to the Fund do not fully recover the cost of such payments on or before its third annual contribution to the Fund, the Fund shall reimburse such participant for such remaining cost not later than 6 months after the date of the third scheduled Fund contribution.

(xiv) Failure to make offer.--If participants fail to make a settlement offer within the 30-day period described under clause (ix) or make amended offers within the 10 business day cure period described under clause (xi), the claimant shall be entitled to recover 150 percent of what the claimant would receive under the Fund before the stay being lifted under subparagraph (B).

(xv) Failure to pay.--If a participant fails to pay an accepted settlement offer within the payment schedule under clause (xii), the claimant shall be entitled to recover 150 percent of what the claimant would receive under the Fund before the stay being lifted under subparagraph (B). If the stay is lifted under subparagraph (B) the claimant may seek a judgment or order for monetary damages from the court where the case is currently pending or the appropriate Federal or State court for claims arising after the date of enactment of this Act.

(B) Stay terminated and reversion to court.--If 9 months after a terminal health claim has been filed under subparagraph (A), a claimant has not received a settlement under subparagraph (A)(xii) and the Administrator has not certified to Congress that the Fund or claims facility is operational and paying terminal health claims at a reasonable rate, the stay of claim provided under paragraph (1) shall be lifted and such terminal health claimant, may immediately seek a judgment or order for monetary damages from the court where the case is currently pending or the appropriate Federal or State court for claims arising after the date of enactment of this Act. If a claimant has failed to file a claim or notice of intent to seek a settlement, as required under subparagraph (A)(ii), the provisions of this subparagraph shall not apply.

(i) Collateral source.--If an asbestos claim is pursued in Federal or State court in accordance with this paragraph, any recovery by the claimant shall be a collateral source compensation for purposes of section 134.

(ii) Recovery of costs.--Any participant may recover the cost of any claim continued in court for up to the amount the claimant would receive under the Fund by deducting from the participant's next and subsequent contributions to the Fund for that amount of the payment made by such participant to the terminal health claimant.

(3) Pursual of nonterminal asbestos claims in federal or state court.--

(A) In general.--

(i) Pursual of claims.--Notwithstanding any other provision of this Act, if not later than 24 months after the date of enactment of this Act, the Administrator cannot certify to Congress that the Fund is operational and paying all valid claims at a reasonable rate, any person with a nonterminal asbestos claim stayed, except for any person whose claim does not exceed a Level I claim, may pursue that claim in the Federal district court (if the claim is otherwise within the jurisdiction of the court) or State court located within--

(I) the State of residence of the claimant; or

(II) the State in which the asbestos exposure occurred.

(ii) Rule of construction.--This subparagraph shall not be construed as creating a new Federal cause of action.

(B) Defendants not found.--If any defendant cannot be found in the State described under subparagraph (A) (i) or (ii), the claim may be pursued in the Federal district court or State court located within any State in which the defendant may be found.

(C) Determination of most appropriate forum.--If a person alleges that the asbestos exposure occurred in more than 1 county (or Federal district), the trial court shall determine which State and county (or Federal district) is the most appropriate forum for the claim. If the court determines that another forum would be the most appropriate forum for a claim, the court shall dismiss the claim. Any otherwise applicable statute of limitations shall be tolled beginning on the date the claim was filed and ending on the date the claim is dismissed under this subparagraph.

(D) State venue requirements.--Nothing in this paragraph shall preempt or supersede any State law relating to venue requirements within that State which are more restrictive.

(E) Credit of claim and effect of operational or nonoperational fund.--

(i) Credit of claim.--If an asbestos claim is pursued in Federal or State court in accordance with this paragraph, any recovery by the claimant shall be a collateral source compensation for purposes of section 134.

(ii) Operational certification.--Operational certification shall be a filing in the Federal Register confirming that the Fund is capable of operating and paying all valid asbestos claims at a reasonable rate.

(iii) Operational preconditions.--

(I) The Administrator may not issue a operational certification until--

(aa) 60 days after the funding allocation information required under section 221(e) has been published in the Federal Register; and

(bb) insurers subject to section 212(a)(3) submit their names and information to the Administrator within 30 days after the date of enactment of this Act and 60 days after the Administrator publishes such information in the Federal Register.

(iv) Operational fund.--If the Administrator issues an operational certification and notifies Congress that the Fund has become operational and paying all valid asbestos claims at a reasonable rate, any nonterminal asbestos claim in a civil action in Federal or State court that is not on trial before a jury which has been impaneled and presentation of evidence has commenced, but before its deliberation, or before a judge and is at the presentation of evidence shall be deemed a reinstated claim against the Fund and the civil action before the Federal or State court shall be null and void.

(v) Nonoperational fund.--Notwithstanding any other provision of this Act, if the Administrator subsequently issues a nonoperational certification and notifies Congress that the Fund is unable to become operational and pay all valid asbestos claims at a reasonable rate, all asbestos claims have been stayed or not filed may be filed or reinstated in the appropriate Federal or State court.

(4) Reservation of rights.--Except as otherwise provided in this Act, participation in the offer and settlement process under this subsection shall not affect or prejudice any rights or defenses a party might have in any litigation.

SEC. 107. AUTHORITY OF THE ADMINISTRATOR.

The Administrator, on any matter within the jurisdiction of the Administrator under this Act, may--

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

(2) administer oaths;

(3) examine witnesses;

(4) require the production of books, papers, documents, and other evidence; and

(5) request assistance from other Federal agencies with the performance of the duties of the Administrator under this Act.

Subtitle B--Asbestos Disease Compensation Procedures

SEC. 111. ESSENTIAL ELEMENTS OF ELIGIBLE CLAIM.

To be eligible for an award under this Act for an asbestos-related disease or injury, an individual shall--

(1) file a claim in a timely manner in accordance with sections 106(f)(2) and 113; and

(2) prove, by a preponderance of the evidence, that the claimant suffers from an eligible disease or condition, as demonstrated by evidence that meets the requirements established under subtitle C.

SEC. 112. GENERAL RULE CONCERNING NO-FAULT COMPENSATION.

An asbestos claimant shall not be required to demonstrate that the asbestos-related injury for which the claim is being made resulted from the negligence or other fault of any other person.

SEC. 113. FILING OF CLAIMS.

(a) Who May Submit.--

(1) In general.--Any individual who has suffered from a disease or condition that is believed to meet the requirements established under subtitle C (or the personal representative of the individual, if the individual is deceased or incompetent) may file a claim with the Office for an award with respect to such injury.

(2) Definition.--In this Act, the term ``personal representative'' shall have the same meaning as that term is defined in section 104.4 of title 28 of the Code of Federal Regulations, as in effect on December 31, 2004.

(3) Limitation.--A claim may not be filed by any person seeking contribution or indemnity.

(4) Effect of multiple injuries.--

(A) In general.--A claimant who receives an award for an eligible disease or condition shall not be precluded from submitting claims for and receiving additional awards under this title for any higher disease level for which the claimant becomes eligible, subject to appropriate setoffs as provided under section 134.

(B) Libby, montana claims.--

(i) In general.--Notwithstanding subparagraph (A), if a Libby, Montana claimant worsens in condition, as measured by pulmonary function tests, such that a claimant qualifies for a higher nonmalignant level, the claimant shall be eligible for an additional award, at the appropriate level, offset by any award previously paid under this Act, such that a claimant would qualify for Level IV if the claimant satisfies section 121(f)(8), and would qualify for Level V if the claimant provides--

(I) a diagnosis of bilateral asbestos related nonmalignant disease;

(II) evidence of TLC or FVC less than 60 percent; and

(III) supporting medical documentation establishing asbestos exposure as a substantial contributing factor in causing the pulmonary condition in question, and excluding more likely causes of that pulmonary condition.

(ii) Subsequent malignant disease.--If a Libby, Montana, claimant develops malignant disease, such that the claimant qualifies for Level VI, VII, VIII, or IX, subparagraph (A) shall apply.

(b) Statute of Limitations.--

(1) In general.--If a claim is not filed with the Office within the limitations period specified in this subsection for that category of claim, such claim shall be extinguished, and any recovery thereon shall be prohibited.

(2) Initial claims.--An initial claim for an award under this Act shall be filed within 5 years after the date on which the claimant first received a medical diagnosis and medical test results sufficient to satisfy the criteria for the disease level for which the claimant is seeking compensation.

(3) Claims for additional awards.--

(A) Nonmalignant diseases.--If a claimant has previously filed a timely initial claim for compensation for any nonmalignant disease level, there shall be no limitations period applicable to the filing of claims by the claimant for additional awards for higher disease levels based on the progression of the nonmalignant disease.

(B) Malignant diseases.--Regardless of whether the claimant has previously filed a claim for compensation for any other disease level, a claim for compensation for a malignant disease level shall be filed within 5 years after the claimant first obtained a medical diagnosis and medical test results sufficient to satisfy the criteria for the malignant disease level for which the claimant is seeking compensation.

(4) Effect on pending claims.--

(A) In general.--Subject to subparagraphs (C) and (D), if an asbestos claim that was timely filed within 10 years before the date of enactment of this Act is pending as of that date and is preempted under section 403(e), a claim under this Act for the same disease or condition may be filed with the Office under this section not later than 5 years after such date of enactment.

(B) Veterans.--For purposes of subparagraph (A), any person with a timely filed asbestos claim shall include any person who--

(i) is a veteran, as that term is defined under section 101(2) of title 38, United States Code; and

(ii) on the date of enactment of this Act--

(I) is receiving benefits for disability, caused by exposure to asbestos, under sections 1110 (wartime disability), 1131 (peacetime disability), or 3102 (training and rehabilitation) of title 38, United States Code; or

(II) has submitted an application for such benefits to the Department of Veterans Affairs that is pending or is on administrative or judicial appeal.

(C) Special rule.--For purposes of this paragraph, a claim shall not be treated as pending with a trust established under title 11, United States Code, solely because a claimant whose claim was previously compensated by the trust has or alleges--

(i) a noncontingent right to the payment of future installments of a fixed award; or

(ii) a contingent right to recover some additional amount from the trust on the occurrence of a future event, such as the reevaluation of the trust's funding adequacy or projected claims experience.

(D) Dormant claims.--A claimant shall have the benefit of the special limitations period under subparagraph (A) only if the claimant provides documentation that the claimant has filed a pleading, served a discovery response or request for discovery, or taken other action to prosecute the pending asbestos claim within the 3-year period ending May 25, 2006, except that the failure to take such action to prosecute the pending asbestos claim shall not preclude the application of the special limitations period under subparagraph (A) if the claimant shows either--

(i) that prosecution of the claim was stayed during all or part of the 3-year period ending May 25, 2006, by court order or operation of law; or

(ii) that the claimant has taken reasonable steps to prosecute the claim within the 3-year period ending May 25, 2006, and that the period of inactivity is the result of the ordinary, generally applicable procedures or practices of the court in which such asbestos claim was pending.

(a) shall be in such form, and contain such information in such detail, as the Administrator shall by regulation prescribe. At a minimum, a claim shall include--

(1) the name, social security number, gender, date of birth, and, if applicable, date of death of the claimant;

(2) information relating to the identity of dependents and beneficiaries of the claimant;

(3) an employment history sufficient to establish required asbestos exposure, accompanied by social security or other payment records or a signed release permitting access to such records;

(4) a description of the asbestos exposure of the claimant, including, to the extent known, information on the site, or location of exposure, and duration and intensity of exposure;

(5) a description of the tobacco product use history of the claimant, including frequency and duration;

(6) an identification and description of the asbestos-related diseases or conditions of the claimant, accompanied by a written report by the claimant's physician with medical diagnoses and x-ray films, and other test results necessary to establish eligibility for an award under this Act;

(7) a description of any prior or pending civil action or other claim brought by the claimant for asbestos-related injury or any other pulmonary, parenchymal, or pleural injury, including an identification of any recovery of compensation or damages through settlement, judgment, or otherwise; and

(8) for any claimant who asserts that he or she is a nonsmoker or an ex-smoker, as defined in section 131, for purposes of an award under Malignant Level VI, Malignant Level VII, or Malignant Level VIII, evidence to support the assertion of nonsmoking or ex-smoking, including relevant medical records.

(d) Date of Filing.--A claim shall be considered to be filed on the date that the claimant mails the claim to the Office, as determined by postmark, or on the date that the claim is received by the Office, whichever is the earliest determinable date.

(e) Incomplete Claims.--If a claim filed under subsection

(a) is incomplete, the Administrator shall notify the claimant of the information necessary to complete the claim and inform the claimant of such services as may be available through the Claimant Assistance Program established under section 104 to assist the claimant in completing the claim. Any time periods for the processing of the claim shall be suspended until such time as the claimant submits the information necessary to complete the claim. If such information is not received within 1 year after the date of such notification, the claim shall be dismissed.

SEC. 114. ELIGIBILITY DETERMINATIONS AND CLAIM AWARDS.

(a) In General.--

(1) Review of claims.--The Administrator shall, in accordance with this section, determine whether each claim filed under the Fund or claims facility satisfies the requirements for eligibility for an award under this Act and, if so, the value of the award. In making such determinations, the Administrator shall consider the claim presented by the claimant, the factual and medical evidence submitted by the claimant in support of the claim, the medical determinations of any Physicians Panel to which a claim is referred under section 121, and the results of such investigation as the Administrator may deem necessary to determine whether the claim satisfies the criteria for eligibility established by this Act.

(2) Additional evidence.--The Administrator may request the submission of medical evidence in addition to the minimum requirements of section 113(c) if necessary or appropriate to make a determination of eligibility for an award, in which case the cost of obtaining such additional information or testing shall be borne by the Office.

(b) Proposed Decisions.--Not later than 90 days after the filing of a claim, the Administrator shall provide to the claimant (and the claimant's representative) a proposed decision accepting or rejecting the claim in whole or in part and specifying the amount of the proposed award, if any. The proposed decision shall be in writing, shall contain findings of fact and conclusions of law, and shall contain an explanation of the procedure for obtaining review of the proposed decision.

(c) Payments if No Timely Proposed Decision.--If the Administrator has received a complete claim and, after the Fund has been certified subject to section 106(f)(3)(E) has not provided a proposed decision to the claimant under subsection (b) within 180 days after the filing of the claim, the claim shall be deemed accepted and the claimant shall be entitled to payment under section 133(a)(2). If the Administrator subsequently rejects the claim the claimant shall receive no further payments under section 133. If the Administrator subsequently rejects the claim in part, the Administrator shall adjust future payments due the claimant under section 133 accordingly. In no event may the Administrator recover amounts properly paid under this section from a claimant.

(d) Review of Proposed Decisions.--

(1) Right to hearing.--

(A) In general.--Any claimant not satisfied with a proposed decision of the Administrator under subsection (b) shall be entitled, on written request made within 90 days after the date of the issuance of the decision, to a hearing on the claim of that claimant before a representative of the Administrator. At the hearing, the claimant shall be entitled to present oral evidence and written testimony in further support of that claim.

(B) Conduct of hearing.--When practicable, the hearing will be set at a time and place convenient for the claimant. In conducting the hearing, the representative of the Administrator shall not be bound by common law or statutory rules of evidence, by technical or formal rules of procedure, or by section 554 of title 5, United States Code, except as provided by this Act, but shall conduct the hearing in such manner as to best ascertain the rights of the claimant. For this purpose, the representative shall receive such relevant evidence as the claimant adduces and such other evidence as the representative determines necessary or useful in evaluating the claim.

(i) In general.--A claimant may request a subpoena but the decision to grant or deny such a request is within the discretion of the representative of the Administrator. The representative may issue subpoenas for the attendance and testimony of witnesses, and for the production of books, records, correspondence, papers, or other relevant documents. Subpoenas are issued for documents only if such documents are relevant and cannot be obtained by other means, and for witnesses only where oral testimony is the best way to ascertain the facts.

(ii) Request.--A claimant may request a subpoena only as part of the hearing process. To request a subpoena, the requester shall--

(I) submit the request in writing and send it to the representative as early as possible, but no later than 30 days after the date of the original hearing request; and

(II) explain why the testimony or evidence is directly relevant to the issues at hand, and a subpoena is the best method or opportunity to obtain such evidence because there are no other means by which the documents or testimony could have been obtained.

(iii) Fees and mileage.--Any person required by such subpoena to attend as a witness shall be allowed and paid the same fees and mileage as are paid witnesses in the district courts of the United States. Such fees and mileage shall be paid from the Fund.

(2) Review of written record.--In lieu of a hearing under paragraph (1), any claimant not satisfied with a proposed decision of the Administrator shall have the option, on written request made within 90 days after the date of the issuance of the decision, of obtaining a review of the written record by a representative of the Administrator. If such review is requested, the claimant shall be afforded an opportunity to submit any written evidence or argument which the claimant believes relevant.

(e) Final Decisions.--

(1) In general.--If the period of time for requesting review of the proposed decision expires and no request has been filed, or if the claimant waives any objections to the proposed decision, the Administrator shall issue a final decision. If such decision materially differs from the proposed decision, the claimant shall be entitled to review of the decision under subsection (d).

(2) Time and content.--If the claimant requests review of all or part of the proposed decision the Administrator shall issue a final decision on the claim not later than 180 days after the request for review is received, if the claimant requests a hearing, or not later than 90 days after the request for review is received, if the claimant requests review of the written record. Such decision shall be in writing and contain findings of fact and conclusions of law.

(f) Representation.--A claimant may authorize an attorney or other individual to represent him or her in any proceeding under this Act.

SEC. 115. AUDITING PROCEDURES.

(a) In General.--

(1) Development.--The Administrator shall develop methods for auditing and evaluating the medical and exposure evidence submitted as part of the claims process. The Administrator may develop additional methods for auditing and evaluating other types of evidence or information received by the Administrator.

(2) Refusal to consider certain evidence.--

(A) In general.--If the Administrator determines that an audit conducted in accordance with the methods developed under paragraph (1) demonstrates that the medical evidence submitted by a specific physician or medical facility is not consistent with prevailing medical practices or the applicable requirements of this Act, any medical evidence from such physician or facility shall be unacceptable for purposes of establishing eligibility for an award under this Act.

(B) Notification.--Upon a determination by the Administrator under subparagraph (A), the Administrator shall notify the physician or medical facility involved of the results of the audit. Such physician or facility shall have a right to appeal such determination under procedures issued by the Administrator.

(C) Submission of valid evidence.--Claimants shall be allowed to submit valid evidence if prior evidence is found unacceptable for purposes of establishing eligibility for an award under this Act.

(b) Review of Certified B-Readers.--

(1) In general.--The Administrator shall prescribe procedures to randomly evaluate the x-rays submitted in support of a statistically significant number of claims by independent certified B-readers, the cost of which shall be paid by the Fund.

(2) Disagreement.--If an independent certified B-reader assigned under paragraph (1) disagrees with the quality grading or ILO level assigned to an x-ray submitted in support of a claim, the Administrator shall require a review of such x-rays by a second independent certified B-reader.

(3) Effect on claim.--If neither certified B-reader under paragraph (2) agrees with the quality grading and the ILO grade level assigned to an x-ray as part of the claim, the Administrator shall take into account the findings of the 2 independent B readers in making the determination on such claim.

(4) Certified b-readers.--The Administrator shall maintain a list of a minimum of 50 certified B-readers eligible to participate in the independent reviews, chosen from all certified B-readers. When an x-ray is sent for independent review, the Administrator shall choose the certified B-reader at random from that list.

(5) Disqualification.--Any certified B-reader who has received compensation before the date of enactment of this Act for assigning an ILO grade level to an x-ray, where the amount of compensation depended on the assigned ILO grade level, is disqualified from inclusion on the Administrator's list.

(1) In general.--

(A) Records and documents.--To aid in the assessment of the accuracy of claimant representations as to their smoking status for purposes of determining eligibility and amount of award under Malignant Level VI, Malignant Level VII, or Malignant Level VIII, and exceptional medical claims, the Administrator shall have the authority to obtain relevant records and documents, including--

(i) records of past medical treatment and evaluation;

(ii) affidavits of appropriate individuals;

(iii) applications for insurance and supporting materials; and

(iv) employer records of medical examinations.

(B) Consent.--The claimant shall provide consent for the Administrator to obtain such records and documents where required.

(2) Review.--The frequency of review of records and documents submitted under paragraph (1)(A) shall be at the discretion of the Administrator, but shall address at least 5 percent of the claimants asserting status as nonsmokers or ex-smokers.

(3) Consent.--

(A) In general.--The Administrator may require the performance of blood tests or any other appropriate medical test, where claimants assert they are nonsmokers or ex-smokers for purposes of an award under Malignant Level VI, VII, or VIII, or as an exceptional medical claim, the cost of which shall be paid by the Fund.

(B) Serum cotinine screening.--The Administrator shall require the performance of serum cotinine screening on all claimants who assert they are nonsmokers or ex-smokers for purposes of an award under Malignant Level VI, VII, or VIII, or as an exceptional medical claim, the cost of which shall be paid by the Fund.

(4) Penalty for false statements.--Any false information submitted under this subsection shall be subject to criminal prosecution or civil penalties as provided under section 1348 of title 18, United States Code (as added by this Act) and section 101(c)(2).

(d) Pulmonary Function Testing.--The Administrator shall develop auditing procedures for pulmonary function test results submitted as part of a claim, to ensure that such tests are conducted in accordance with American Thoracic Society Criteria, as defined under section 121(a)(13).

Subtitle C--Medical Criteria

SEC. 121. MEDICAL CRITERIA REQUIREMENTS.

(a) Definitions.--In this section, the following definitions shall apply:

(1) Asbestosis determined by pathology.--The term

``asbestosis determined by pathology'' means indications of asbestosis based on the pathological grading system for asbestosis described in the Special Issues of the Archives of Pathology and Laboratory Medicine, ``Asbestos-associated Diseases'', Vol. 106, No. 11, App. 3 (October 8, 1982).

(2) Bilateral asbestos-related nonmalignant disease.--The term ``bilateral asbestos-related nonmalignant disease'' means a diagnosis of bilateral asbestos-related nonmalignant disease based on--

(A) an x-ray reading of 1/0 or higher based on the ILO grade scale;

(B) bilateral pleural plaques;

(D) bilateral pleural calcification.

(3) Bilateral pleural disease of b2.--The term ``bilateral pleural disease of B2'' means a chest wall pleural thickening or plaque with a maximum width of at least 5 millimeters and a total length of at least \1/4\ of the projection of the lateral chest wall.

(4) Certified b-reader.--The term ``certified B-reader'' means an individual who is certified by the National Institute of Occupational Safety and Health and whose certification by the National Institute of Occupational Safety and Health is up to date.

(5) Diffuse pleural thickening.--The term ``diffuse pleural thickening'' means blunting of either costophrenic angle and bilateral pleural plaque or bilateral pleural thickening.

(6) DLCO.--The term ``DLCO'' means the single-breath diffusing capacity of the lung (carbon monoxide) technique used to measure the volume of carbon monoxide transferred from the alveoli to blood in the pulmonary capillaries for each unit of driving pressure of the carbon monoxide.

(7) FEV1.--The term ``FEV1'' means forced expiratory volume

(1 second), which is the maximal volume of air expelled in 1 second during performance of the spirometric test for forced vital capacity.

(8) FVC.--The term ``FVC'' means forced vital capacity, which is the maximal volume of air expired with a maximally forced effort from a position of maximal inspiration.

(9) ILO grade.--The term ``ILO grade'' means the radiological ratings for the presence of lung changes as determined from a chest x-ray, all as established from time to time by the International Labor Organization.

(10) Lower limits of normal.--The term ``lower limits of normal'' means the fifth percentile of healthy populations as defined in the American Thoracic Society statement on lung function testing (Amer. Rev. Resp. Disease 1991, 144:1202-1218) and any future revision of the same statement.

(11) Nonsmoker.--The term ``nonsmoker'' means a claimant who--

(A) never smoked; or

(B) has smoked fewer than 100 cigarettes or the equivalent amount of other tobacco products during the claimant's lifetime.

(12) PO2.--The term ``PO2'' means the partial pressure (tension) of oxygen, which measures the amount of dissolved oxygen in the blood.

(13) Pulmonary function testing.--The term ``pulmonary function testing'' means spirometry testing that is in material compliance with the quality criteria established by the American Thoracic Society and is performed on equipment which is in material compliance with the standards of the American Thoracic Society for technical quality and calibration.

(14) Substantial occupational exposure to asbestos.--

(A) In general.--The term ``substantial occupational exposure'' means employment in an industry and an occupation where for a substantial portion of a normal work year for that occupation, the claimant--

(i) handled raw asbestos fibers;

(ii) fabricated asbestos-containing products so that the claimant in the fabrication process was exposed to raw asbestos fibers;

(iii) altered, repaired, or otherwise worked with an asbestos-containing product such that the claimant was exposed on a regular basis to asbestos fibers; or

(iv) worked in close proximity to other workers engaged in the activities described under clause (i), (ii), or (iii), such that the claimant was exposed on a regular basis to asbestos fibers.

(B) Regular basis.--In this paragraph, the term ``on a regular basis'' means on a frequent or recurring basis.

(15) TLC.--The term ``TLC'' means total lung capacity, which is the total volume of air in the lung after maximal inspiration.

(16) Weighted occupational exposure.--

(A) In general.--The term ``weighted occupational exposure'' means exposure for a period of years calculated according to the exposure weighting formula under subparagraphs (B) through (E).

(B) Moderate exposure.--Subject to subparagraph (E), each year that a claimant's primary occupation, during a substantial portion of a normal work year for that occupation, involved working in areas immediate to where asbestos-containing products were being installed, repaired, or removed under circumstances that involved regular airborne emissions of asbestos fibers, shall count as 1 year of substantial occupational exposure.

(C) Heavy exposure.--Subject to subparagraph (E), each year that a claimant's primary occupation, during a substantial portion of a normal work year for that occupation, involved the direct installation, repair, or removal of asbestos-containing products such that the person was exposed on a regular basis to asbestos fibers, shall count as 2 years of substantial occupational exposure.

(D) Very heavy exposure.--Subject to subparagraph (E), each year that a claimant's primary occupation, during a substantial portion of a normal work year for that occupation, was in primary asbestos manufacturing, a World War II shipyard, or the asbestos insulation trades, such that the person was exposed on a regular basis to asbestos fibers, shall count as 4 years of substantial occupational exposure.

(E) Dates of exposure.--Each year of exposure calculated under subparagraphs (B), (C), and (D) that occurred before 1976 shall be counted at its full value. Each year from 1976 to 1986 shall be counted as \1/2\ of its value. Each year after 1986 shall be counted as \1/10\ of its value.

(F) Other claims.--Individuals who do not meet the provisions of subparagraphs (A) through (E) and believe their post-1976 or post-1986 exposures exceeded the Occupational Safety and Health Administration standard may submit evidence, documentation, work history, or other information to substantiate noncompliance with the Occupational Safety and Health Administration standard (such as lack of engineering or work practice controls, or protective equipment) such that exposures would be equivalent to exposures before 1976 or 1986, or to documented exposures in similar jobs or occupations where control measures had not been implemented. Claims under this subparagraph shall be evaluated on an individual basis by a Physicians Panel.

(b) Medical Evidence.--

(1) Latency.--Unless otherwise specified, all diagnoses of an asbestos-related disease for a level under this section shall be accompanied by--

(A) a statement by the physician providing the diagnosis that at least 10 years have elapsed between the date of first exposure to asbestos or asbestos-containing products and the diagnosis; or

(B) a history of the claimant's exposure that is sufficient to establish a 10-year latency period between the date of first exposure to asbestos or asbestos-containing products and the diagnosis.

(2) Diagnostic guidelines.--All diagnoses of asbestos-related diseases shall be based upon--

(A) for disease Levels I through V, in the case of a claimant who was living at the time the claim was filed--

(i) a physical examination of the claimant by the physician providing the diagnosis;

(ii) an evaluation of smoking history and exposure history before making a diagnosis;

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

(iv) pulmonary function testing in the case of disease Levels III, IV, and V;

(B) for disease Levels I through V, in the case of a claimant who was deceased at the time the claim was filed, a report from a physician based upon a review of the claimant's medical records which shall include--

(i) pathological evidence of the nonmalignant asbestos-related disease; or

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

(i) a physical examination by the claimant's physician providing the diagnosis; or

(ii) a diagnosis of such a malignant asbestos-related disease, as described in this section, by a board-certified pathologist; and

(D) for disease Levels VI through IX, in the case of a claimant who was deceased at the time the claim was filed--

(i) a diagnosis of such a malignant asbestos-related disease, as described in this section, by a board-certified pathologist; and

(ii) a report from a physician based upon a review of the claimant's medical records.

(3) Credibility of medical evidence.--To ensure the medical evidence provided in support of a claim is credible and consistent with recognized medical standards, a claimant under this title may be required to submit--

(A) x-rays or computerized tomography;

(B) detailed results of pulmonary function tests;

(D) tissue samples;

(E) results of medical examinations;

(F) reviews of other medical evidence; and

(G) medical evidence that complies with recognized medical standards regarding equipment, testing methods, and procedure to ensure the reliability of such evidence as may be submitted.

(1) In general.--To qualify for any disease level, the claimant shall demonstrate--

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

(B) the exposure occurred in the United States, its territories or possessions, or while a United States citizen, while an employee of an entity organized under any Federal or State law regardless of location, or while a United States citizen while serving on any United States flagged or owned ship, provided the exposure results from such employment or service; and

(2) Proof of exposure.--

(A) Affidavits.--Exposure to asbestos sufficient to satisfy the exposure requirements for any disease level may be established by a detailed and specific affidavit that--

(i) is filed by--

(I) the claimant; or

(II) if the claimant is deceased, a coworker or a family member of the claimant; and

(ii) is found in proceedings under this title to be--

(I) reasonably reliable, attesting to the claimant's exposure; and

(II) credible and not contradicted by other evidence.

(B) Other proof.--Exposure to asbestos may alternatively be established by invoices, construction or other similar records, or any other reasonably reliable and credible evidence.

(C) Additional evidence.--The Administrator may require submission of other or additional evidence of exposure, if available, for a particular claim when determined necessary, as part of the minimum information required under section 113(c).

(D) Evaluation.--The Administrator shall prescribe procedures to randomly evaluate the affidavits submitted to satisfy the exposure requirements for any disease level.

(3) Take home exposure.--

(A) In general.--A claimant may alternatively satisfy the medical criteria requirements of this section where a claim is filed by a person who alleges their exposure to asbestos was the result of living with a person who, if the claim had been filed by that person, would have met the exposure criteria for the given disease level, and the claimant lived with such person for the time period necessary to satisfy the exposure requirement, for the claimed disease level.

(B) Review.--Except for claims for disease Level IX

(mesothelioma), all claims alleging take home exposure shall be submitted as an exceptional medical claim under section 121(g) for review by a Physicians Panel.

(4) Waiver for workers and residents of libby, montana.--Because of the unique nature of the asbestos exposure related to the vermiculite mining and milling operations in Libby, Montana, the Administrator shall waive the exposure requirements under this subtitle for individuals who worked at the vermiculite mining and milling facility in Libby, Montana, or lived or worked within a 20-mile radius of Libby, Montana, for at least 12 consecutive months before December 31, 2004. Claimants under this section shall provide such supporting documentation as the Administrator shall require.

(5) Exposure presumptions.--

(A) In general.--The Administrator shall prescribe rules identifying specific industries, occupations within such industries, and time periods in which workers employed in those industries and occupations typically had substantial occupational exposure to asbestos as defined under section 121(a). Until 5 years after the Administrator certifies that the Fund is paying claims at a reasonable rate, the industries, occupations and time periods identified by the Administrator shall at a minimum include those identified in the 2002 Trust Distribution Process of the Manville Personal Injury Settlement Trust as of January 1, 2005, as industries, occupations, including proximity, and time periods in which workers were presumed to have had significant occupational exposure to asbestos. Thereafter, the Administrator may by rule modify or eliminate those exposure presumptions required to be adopted from the Manville Personal Injury Settlement Trust, if there is evidence that demonstrates that the typical exposure for workers in such industries and occupations during such time periods did not constitute substantial occupational exposure in asbestos.

(B) Claimants entitled to presumptions.--Any claimant who demonstrates through meaningful and credible evidence that such claimant was employed during relevant time periods in industries and occupations identified under subparagraph (A) shall be entitled to a presumption that the claimant had substantial occupational exposure to asbestos during those time periods. That presumption shall not be conclusive, and the Administrator may find that the claimant does not have substantial occupational exposure if other information demonstrates that the claimant did not in fact have substantial occupational exposure during any part of the relevant time periods.

(B) shall negate the exposure or medical criteria requirements in section 121, for the purpose of receiving compensation from the Fund.

(6) Penalty for false statement.--Any false information submitted under this subsection shall be subject to section 1348 of title 18, United States Code (as added by this Act).

(d) Asbestos Disease Levels.--

(1) Nonmalignant level i.--To receive Level I compensation, a claimant shall provide--

(A) a diagnosis of bilateral asbestos-related nonmalignant disease; and

(B) evidence of 5 years cumulative occupational exposure to asbestos.

(2) Nonmalignant level ii.--To receive Level II compensation, a claimant shall provide--

(A) a diagnosis of bilateral asbestos-related nonmalignant disease with ILO grade of 1/1 or greater, and showing small irregular opacities of shape or size, either ss, st, or tt, and present in both lower lung zones, or asbestosis determined by pathology, or blunting of either costophrenic angle and bilateral pleural plaque or bilateral pleural thickening of at least grade B2 or greater, or bilateral pleural disease of grade B2 or greater;

(B) evidence of TLC less than 80 percent or FVC less than the lower limits of normal, and FEV1/FVC ratio less than 65 percent;

(D) supporting medical documentation, such as a written opinion by the examining or diagnosing physician, according to the diagnostic guidelines in section 121(b)(2), establishing asbestos exposure as a substantial contributing factor in causing the pulmonary condition in question.

(3) Nonmalignant level iii.--To receive Level III compensation a claimant shall provide--

(A) a diagnosis of bilateral asbestos-related nonmalignant disease with ILO grade of 1/0 or greater and showing small irregular opacities of shape or size, either ss, st, or tt, and present in both lower lung zones, or asbestosis determined by pathology, or diffuse pleural thickening, or bilateral pleural disease of B2 or greater;

(B) evidence of TLC less than 80 percent; FVC less than the lower limits of normal and FEV1/FVC ratio greater than or equal to 65 percent; or evidence of a decline in FVC of 20 percent or greater, after allowing for the expected decrease due to aging, and an FEV1/FVC ratio greater than or equal to 65 percent documented with a second spirometry;

(D) supporting medical documentation, such as a written opinion by the examining or diagnosing physician, according to the diagnostic guidelines in section 121(b)(2)--

(i) establishing asbestos exposure as a substantial contributing factor in causing the pulmonary condition in question; and

(ii) excluding other more likely causes, other than silica, of that pulmonary condition.

(4) Nonmalignant level iv.--To receive Level IV compensation a claimant shall provide--

(A) diagnosis of bilateral asbestos-related nonmalignant disease with ILO grade of 1/1 or greater and showing small irregular opacities of shape or size, either ss, st, or tt, and present in both lower lung zones, or asbestosis determined by pathology, or diffuse pleural thickening, or bilateral pleural disease of B2 or greater;

(B) evidence of TLC less than 60 percent or FVC less than 60 percent, and FEV1/FVC ratio greater than or equal to 65 percent;

(D) supporting medical documentation, such as a written opinion by the examining or diagnosing physician, according to the diagnostic guidelines in section 121(b)(2)--

(i) establishing asbestos exposure as a substantial contributing factor in causing the pulmonary condition in question; and

(ii) excluding other more likely causes, other than silica, of that pulmonary condition.

(5) Nonmalignant level v.--To receive Level V compensation a claimant shall provide--

(B)(i) evidence of TLC less than 50 percent or FVC less than 50 percent, and FEV1/FVC ratio greater than or equal to 65 percent;

(ii) DLCO less than 40 percent of predicted, plus a FEV1/FVC ratio not less than 65 percent; or

(iii) PO2 less than 55 mm/Hg, plus a FEV1/FVC ratio not less than 65 percent;

(D) supporting medical documentation, such as a written opinion by the examining or diagnosing physician, according to the diagnostic guidelines in section 121(b)(2)--

(i) establishing asbestos exposure as a substantial contributing factor in causing the pulmonary condition in question; and

(ii) excluding other more likely causes, other than silica, of that pulmonary condition.

(6) Malignant level vi.--

(A) In general.--To receive Level VI compensation a claimant shall provide--

(i) a diagnosis of a primary colorectal, laryngeal, esophageal, pharyngeal, or stomach cancer on the basis of findings by a board-certified pathologist;

(ii) evidence of a bilateral asbestos-related nonmalignant disease;

(iii) evidence of 15 or more weighted years of substantial occupational exposure to asbestos; and

(iv) supporting medical documentation, such as a written opinion by the examining or diagnosing physician, according to the diagnostic guidelines in section 121(b)(2), establishing asbestos exposure as a substantial contributing factor in causing the cancer in question.

(B) Referral to physicians panel.--All claims filed with respect to Level VI under this paragraph shall be referred to a Physicians Panel for a determination that it is more probable than not that asbestos exposure was a substantial contributing factor in causing the other cancer in question. If the claimant meets the requirements of subparagraph (A), there shall be a presumption of eligibility for the scheduled value of compensation unless there is evidence determined by the Physicians Panel that rebuts that presumption. In making its determination under this subparagraph, the Physicians Panel shall consider the intensity and duration of exposure, smoking history, and the quality of evidence relating to exposure and smoking. Claimants shall bear the burden of producing meaningful and credible evidence of their smoking history as part of their claim submission.

(7) Malignant level vii.--

(A) In general.--To receive Level VII compensation, a claimant shall provide--

(i) a diagnosis of a primary lung cancer disease on the basis of findings by a board-certified pathologist;

(ii) evidence of bilateral pleural plaques or bilateral pleural thickening or bilateral pleural calcification by chest x-ray or such diagnostic methodology supported by the findings of the Institute of Medicine under subsection (f);

(iii) evidence of 12 or more weighted years of substantial occupational exposure to asbestos; and

(B) Physicians panel.--A claimant filing a claim relating to Level VII under this paragraph may request that the claim be referred to a Physicians Panel for a determination of whether the claimant qualifies for the disease category and relevant smoking status. In making its determination under this subparagraph, the Physicians Panel shall consider the intensity and duration of exposure, smoking history, and the quality of evidence relating to exposure and smoking. Claimants shall bear the burden of producing meaningful and credible evidence of their smoking history as part of their claim submission.

(8) Malignant level viii.--

(A) In general.--To receive Level VIII compensation, a claimant shall provide a diagnosis--

(i) of a primary lung cancer disease on the basis of findings by a board-certified pathologist;

(ii)(I) of--

(aa) asbestosis based on a chest x-ray of at least 1/0 on the ILO scale and showing small irregular opacities of shape or size, either ss, st, or tt, and present in both lower lung zones; and

(bb) 10 or more weighted years of substantial occupational exposure to asbestos;

(II) of--

(aa) asbestosis based on a chest x-ray of at least 1/1 on the ILO scale and showing small irregular opacities of shape or size, either ss, st, or tt, and present in both lower lung zones; and

(bb) 8 or more weighted years of substantial occupational exposure to asbestos;

(III) asbestosis determined by pathology and 10 or more weighted years of substantial occupational exposure to asbestos; or

(IV) asbestosis as determined by CT Scan, the cost of which shall not be borne by the Fund. The CT Scan must be interpreted by a board-certified radiologist and confirmed by a board-certified radiologist; and

(iii) supporting medical documentation, such as a written opinion by the examining or diagnosing physician, according to the diagnostic guidelines in section 121(b)(2), establishing asbestos exposure as a substantial contributing factor in causing the lung cancer in question; and 10 or more weighted years of substantial occupational exposure to asbestos.

(B) Physicians panel.--A claimant filing a claim with respect to Level VIII under this paragraph may request that the claim be referred to a Physicians Panel for a determination of whether the claimant qualifies for the disease category and relevant smoking status. In making its determination under this subparagraph, the Physicians Panel shall consider the intensity and duration of exposure, smoking history, and the quality of evidence relating to exposure and smoking. Claimants shall bear the burden of producing meaningful and credible evidence of their smoking history as part of their claim submission.

(9) Malignant level ix.--To receive Level IX compensation, a claimant shall provide--

(A) a diagnosis of malignant mesothelioma disease on the basis of findings by a board-certified pathologist; and

(B) credible evidence of identifiable exposure to asbestos resulting from--

(i) occupational exposure to asbestos;

(ii) exposure to asbestos fibers brought into the home of the claimant by a worker occupationally exposed to asbestos;

(iii) exposure to asbestos fibers resulting from living or working in the proximate vicinity of a factory, shipyard, building demolition site, or other operation that regularly released asbestos fibers into the air due to operations involving asbestos at that site; or

(iv) other identifiable exposure to asbestos fibers, in which case the claim shall be reviewed by a Physicians Panel under subsection (g) for a determination of eligibility.

(e) Institute of Medicine Study.--Not later than April 1, 2006, the Institute of Medicine of the National Academy of Sciences shall complete a study contracted with the National Institutes of Health to determine whether there is a causal link between asbestos exposure and other cancers, including colorectal, laryngeal, esophageal, pharyngeal, and stomach cancers, except for mesothelioma and lung cancers. The Institute of Medicine shall issue a report on its findings on causation, which shall be transmitted to Congress, the Administrator, the Advisory Committee on Asbestos Disease Compensation or the Medical Advisory Committee, and the Physicians Panels. The Institute of Medicine report shall be binding on the Administrator and the Physicians Panels for purposes of determining whether asbestos exposure is a substantial contributing factor in causing the other cancerous disease in question under subsection (d)(6). If asbestos is not a substantial contributing factor to the particular cancerous disease under subsection (d)(6), subsection (d)(6) shall not apply with respect to that disease and no claim may be filed with, or award paid from, the Fund with respect to that disease under malignant Level VI.

(f) Institute of Medicine Study on CT Scans.--

(1) In general.--Not later than April 1, 2006, the Institute of Medicine of the National Academy of Sciences shall complete a study contracted with the National Institutes of Health of the use of CT scans as a diagnostic tool for bilateral pleural plaques, bilateral pleural thickening, or bilateral pleural calcification.

(2) Findings.--The Institute of Medicine shall make and issue findings based on the study required under paragraph

(1) on whether--

(A) CT scans are generally accepted in the medical profession to detect bilateral pleural plaques, bilateral pleural thickening, or bilateral pleural calcification; and

(B) professional standards of practice exist to allow for the Administrator's reasonable reliance on such as evidence of bilateral pleural plaques, bilateral pleural thickening, or bilateral pleural calcification under the Fund.

(3) Report.--The Institute of Medicine shall issue a report on the findings required under paragraph (2), which shall be transmitted to Congress, the Administrator, the Advisory Committee on Asbestos Disease Compensation or the Medical Advisory Committee, and the Physicians Panels.

(4) Report binding on the administrator.--The Institute of Medicine report required under paragraph (3) shall be binding on the Administrator and the Physicians Panels for purposes of determining reliable and acceptable evidence that may be submitted for a Level VII claim under subsection (d)(7).

(g) Exceptional Medical Claims.--

(1) In general.--A claimant who does not meet the medical criteria requirements under this section may apply for designation of the claim as an exceptional medical claim.

(2) Application.--When submitting an application for review of an exceptional medical claim, the claimant shall--

(A) state that the claim does not meet the medical criteria requirements under this section; or

(B) seek designation as an exceptional medical claim within 60 days after a determination that the claim is ineligible solely for failure to meet the medical criteria requirements under subsection (d).

(3) Report of physician.--

(A) In general.--Any claimant applying for designation of a claim as an exceptional medical claim shall support an application filed under paragraph (1) with a report from a physician meeting the requirements of this section.

(B) Contents.--A report filed under subparagraph (A) shall include--

(i) a complete review of the claimant's medical history and current condition;

(ii) such additional material by way of analysis and documentation as shall be prescribed by rule of the Administrator; and

(iii) a detailed explanation as to why the claim meets the requirements of paragraph (4)(B).

(4) Review.--

(A) In general.--The Administrator shall refer all applications and supporting documentation submitted under paragraph (2) to a Physicians Panel for review for eligibility as an exceptional medical claim.

(B) Standard.--A claim shall be designated as an exceptional medical claim if the claimant, for reasons beyond the control of the claimant, cannot satisfy the requirements under this section, but is able, through comparably reliable evidence that meets the standards under this section, to show that the claimant has an asbestos-related condition that is substantially comparable to that of a medical condition that would satisfy the requirements of a category under this section.

(C) Additional information.--A Physicians Panel may request additional reasonable testing to support the claimant's application.

(D) CT scan.--A claimant may submit a CT Scan in addition to an x-ray.

(E) Mesothelioma cases.--

(i) In general.--The Physicals Panel shall grant priority status to--

(I) all Level IX claims with other identifiable asbestos exposure as provided under paragraph (9)(B)(iv); and

(II) all Level IX claims that are filed as exceptional medical claims.

(ii) Physician panel.--If the Physicians Panel issues a certificate of medical eligibility, the claimant shall be deemed to qualify for Level IX compensation. If the Physicians Panel rejects the claim, and the Administrator deems it rejected, the claimant may immediately seek judicial review under section 302.

(5) Approval.--

(A) In general.--If the Physicians Panel determines that the medical evidence is sufficient to show a comparable asbestos-related condition, it shall issue a certificate of medical eligibility designating the category of asbestos-related injury under this section for which the claimant shall be eligible to seek compensation.

(B) Referral.--Upon the issuance of a certificate under subparagraph (A), the Physicians Panel shall submit the claim to the Administrator, who shall give due consideration to the recommendation of the Physicians Panel in determining whether the claimant meets the requirements for compensation under this Act.

(6) Resubmission.--Any claimant whose application for designation as an exceptional medical claim is rejected may resubmit an application if new evidence becomes available. The application shall identify any prior applications and state the new evidence that forms the basis of the resubmission.

(7) Rules.--The Administrator shall promulgate rules governing the procedures for seeking designation of a claim as an exceptional medical claim.

(8) Libby, montana.--

(A) In general.--A Libby, Montana, claimant may elect to have the claimant's claims designated as exceptional medical claims and referred to a Physicians Panel for review. In reviewing the medical evidence submitted by a Libby, Montana claimant in support of that claim, the Physicians Panel shall take into consideration the unique and serious nature of asbestos exposure in Libby, Montana, including the nature of the pleural disease related to asbestos exposure in Libby, Montana.

(B) Claims.--For all claims for Levels II through IV filed by Libby, Montana claimants, as described under subsection

(c)(4), once the Administrator or the Physicians Panel issues a certificate of medical eligibility to a Libby, Montana claimant, and notwithstanding the disease category designated in the certificate or the eligible disease or condition established in accordance with this section, or the value of the award determined in accordance with section 114, the Libby, Montana claimant shall be entitled to an award that is not less than that awarded to claimants who suffer from asbestosis, Level IV. For all malignant claims filed by Libby, Montana claimants, the Libby, Montana claimant shall be entitled to an award that corresponds to the malignant disease category designated by the Administrator or the Physicians Panel.

(C) Evaluation of claims.--For purposes of evaluating exceptional medical claims from Libby, Montana, a claimant shall be deemed to have a comparable asbestos-related condition to an asbestos disease category Level IV, and shall be deemed to qualify for compensation at Level IV, if the claimant provides--

(i) a diagnosis of bilateral asbestos related nonmalignant disease;

(ii) evidence of TLC or FVC less than 80 percent; and

(iii) supporting medical documentation establishing asbestos exposure as a substantial contributing factor in causing the pulmonary condition in question, and excluding more likely causes of that pulmonary condition.

(9) Study of vermiculite processing facilities.--

(A) In general.--As part of the ongoing National Asbestos Exposure Review (in this section referred to as ``NAER'') being conducted by the Agency for Toxic Substances and Disease Registry (in this section referred to as ``ATSDR'') of facilities that received vermiculite ore from Libby, Montana, the ATSDR shall conduct a study of all Phase 1 sites where--

(i) the Environmental Protection Agency has mandated further action at the site on the basis of current contamination; or

(ii) the site was an exfoliation facility that processed roughly 100,000 tons or more of vermiculite from the Libby mine.

(B) Study by atsdr.--The study by the ATSDR shall evaluate the facilities identified under subparagraph (A) and compare--

(i) the levels of asbestos emissions from such facilities;

(ii) the resulting asbestos contamination in areas surrounding such facilities;

(iii) the levels of exposure to residents living in the vicinity of such facilities;

(iv) the risks of asbestos-related disease to the residents living in the vicinity of such facilities; and

(v) the risk of asbestos-related mortality to residents living in the vicinity of such facilities,

to the emissions, contamination, exposures, and risks resulting from the mining of vermiculite ore in Libby, Montana.

(C) Results of study.--The results of the study required under this paragraph shall be transmitted to the Administrator. If the ATSDR finds as a result of such study that, for any particular facility, the levels of emissions from, the resulting contamination caused by, the levels of exposure to nearby residents from, and the risks of asbestos-related disease and asbestos-related mortality to nearby residents from such facility are substantially equivalent to those of Libby, Montana, then the Administrator shall treat claims from residents surrounding such facilities the same as claims of residents of Libby, Montana, and such residents shall have all the rights of residents of Libby, Montana, under this Act. As part of the results of its study, the ATSDR shall prescribe for any such facility the relevant geographic and temporal criteria under which the exposures and risks to the surrounding residents are substantially equivalent to those of residents of Libby, Montana, and therefore qualify for treatment under this paragraph.

(10) Naturally occurring asbestos.--A claimant who has been exposed to naturally occurring asbestos may file an exceptional medical claim with the Fund.

(11) Asbestos exposure as the result of a natural or other disaster.--

(A) In general.--A claimant may file an exceptional medical claim with the Fund if such claimant has been exposed to asbestos in any area that is subject to a declaration by the President of a major disaster, as defined under section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122), as the result of--

(i) the attack on the World Trade Center in New York, New York on September 11, 2001; or

(ii) Hurricane Katrina or Hurricane Rita of 2005 in the Gulf Region of the United States.

(B) Review of evidence.--In reviewing medical evidence submitted by a claimant under subparagraph (A)(i) or (ii), the Physicians Panel shall take into consideration the unique nature of these disasters and the potential for asbestos exposure resulting from these disasters.

(h) Guidelines for CT Scans.--The Administrator shall commission the American College of Radiology to develop, in consultation with the American Thoracic Society, American College of Chest Physicians, and Institute of Medicine, guidelines and a methodology for the use of CT scans as a diagnostic tool for bilateral pleural plaques, bilateral pleural thickening, or bilateral pleural calcification under the Fund. After development, such guidelines and methodology shall be used for diagnostic purposes under the Fund.

Subtitle D--Awards

SEC. 131. AMOUNT.

(a) In General.--An asbestos claimant who meets the requirements of section 111 shall be entitled to an award in an amount determined by reference to the benefit table and the matrices developed under subsection (b).

(b) Benefit Table.--

(1) In general.--An asbestos claimant with an eligible disease or condition established in accordance with section 121 shall be eligible for an award as determined under this subsection. The award for all asbestos claimants with an eligible disease or condition established in accordance with section 121 shall be according to the following schedule:

Level Scheduled Condition Scheduled Value

or Disease

I............................ Asbestosis/Pleural Medical Monitoring

Disease A

II........................... Mixed Disease With $25,000

Impairment

III.......................... Asbestosis/Pleural $100,000

Disease B

IV........................... Severe Asbestosis $400,000

V............................ Disabling $850,000

Asbestosis

VI........................... Other Cancer $200,000

VII.......................... Lung Cancer With smokers, $300,000;

Pleural Disease

ex-smokers,

$725,000;

nonsmokers,

$800,000

VIII......................... Lung Cancer With smokers, $600,000;

Asbestosis

ex-smokers,

$975,000;

nonsmokers,

$1,100,000

IX........................... Mesothelioma $1,100,000

(2) Definitions.--In this section--

(A) the term ``nonsmoker'' means a claimant who--

(i) never smoked; or

(ii) has smoked fewer than 100 cigarettes or the equivalent of other tobacco products during the claimant's lifetime; and

(B) the term ``ex-smoker'' means a claimant who has not smoked during any portion of the 12-year period preceding the diagnosis of lung cancer.

(3) Level ix adjustments.--

(A) In general.--The Administrator may increase awards for Level IX claimants who have dependent children so long as the increase under this paragraph is cost neutral. Such increased awards shall be paid for by decreasing awards for claimants other than Level IX, so long as no award levels are decreased more than 10 percent.

(B) Implementation.--Before making adjustments under this paragraph, the Administrator shall publish in the Federal Register notice of, and a plan for, making such adjustments.

(4) Special adjustment for fela cases.--

(A) In general.--A claimant who would be eligible to bring a claim under the Act of April 22, 1908 (45 U.S.C. 51 et seq.), commonly known as the Employers' Liability Act, but for section 403 of this Act, shall be eligible for a special adjustment under this paragraph.

(B) Regulations.--

(i) In general.--Not later than 90 days after the date of enactment of this Act, the Administrator shall promulgate regulations relating to special adjustments under this paragraph.

(ii) Joint proposal.--Not later than 45 days after the date of enactment of this Act, representatives of railroad management and representatives of railroad labor shall submit to the Administrator a joint proposal for regulations describing the eligibility for and amount of special adjustments under this paragraph. If a joint proposal is submitted, the Administrator shall promulgate regulations that reflect the joint proposal.

(iii) Absence of joint proposal.--If railroad management and railroad labor are unable to agree on a joint proposal within 45 days after the date of enactment of this Act, the benefits prescribed in subparagraph (E) shall be the benefits available to claimants, and the Administrator shall promulgate regulations containing such benefits.

(iv) Review.--The parties participating in the arbitration may file in the United States District Court for the District of Columbia a petition for review of the Administrator's order. The court shall have jurisdiction to affirm the order of the Administrator, or to set it aside, in whole or in part, or it may remand the proceedings to the Administrator for such further action as it may direct. On such review, the findings and order of the Administrator shall be conclusive on the parties, except that the order of the Administrator may be set aside, in whole or in parts or remanded to the Administrator, for failure of the Administrator to comply with the requirements of this section, for failure of the order to conform, or confine itself, to matters within the scope of the Administrator's jurisdiction, or for fraud or corruption.

(C) Eligibility.--An individual eligible to file a claim under the Act of April 22, 1908 (45 U.S.C. 51 et seq.), commonly known as the Employers' Liability Act, shall be eligible for a special adjustment under this paragraph if such individual meets the criteria set forth in subparagraph

(F).

(D) Amount.--

(i) In general.--The amount of the special adjustment shall be based on the type and severity of asbestos disease, and shall be 110 percent of the average amount an injured individual with a disease caused by asbestos, as described in section 121(d) of this Act, would have received, during the 5-year period before the enactment of this Act, adjusted for inflation. This adjustment shall be in addition to any other award for which the claimant is eligible under this Act. The amount of the special adjustment shall be reduced by an amount reasonably calculated to take into account all expenses of litigation normally borne by plaintiffs, including attorney's fees.

(ii) Limitation.--The amount under clause (i) may not exceed the amount the claimant is eligible to receive before applying the special adjustment under that clause.

(E) Arbitrated benefits.--If railroad management and railroad labor are unable to agree on a joint proposal within 45 days after the date of enactment of this Act, the Administrator shall appoint an arbitrator to determine the benefits under subparagraph (D). The Administrator shall appoint an arbitrator who shall be acceptable to both railroad management and railroad labor. Railroad management and railroad labor shall each designate their representatives to participate in the arbitration. The arbitrator shall submit the benefits levels to the Administrator not later than 30 days after appointment and such benefits levels shall be based on information provided by rail labor and rail management. The information submitted to the arbitrator by railroad management and railroad labor shall be considered confidential and shall be disclosed to the other party upon execution of an appropriate confidentiality agreement. Unless the submitting party provides written consent, neither the arbitrator nor either party to the arbitration shall divulge to any third party any information or data, in any form, submitted to the arbitrator under this section. Nor shall either party use such information or data for any purpose other than participation in the arbitration proceeding, and each party shall return to the other any information it has received from the other party as soon the arbitration is concluded. Information submitted to the arbitrator may not be admitted into evidence, nor discovered, in any civil litigation in Federal or State court. The nature of the information submitted to the arbitrator shall be within the sole discretion of the submitting party, and the arbitrator may not require a party to submit any particular information, including information subject to a prior confidentiality agreement.

(F) Demonstration of eligibility.--

(i) In general.--A claimant under this paragraph shall be required to demonstrate--

(I) employment of the claimant in the railroad industry;

(II) exposure of the claimant to asbestos as part of that employment; and

(III) the nature and severity of the asbestos-related injury.

(ii) Medical criteria.--In order to be eligible for a special adjustment a claimant shall meet the criteria set forth in section 121 that would qualify a claimant for a payment under Level II or greater.

(5) Medical monitoring.--An asbestos claimant with asymptomatic exposure, based on the criteria under section 121(d)(1), shall only be eligible for medical monitoring reimbursement as provided under section 132.

(6) Cost-of-living adjustment.--

(A) In general.--Beginning January 1, 2007, award amounts under paragraph (1) shall be annually increased by an amount equal to such dollar amount multiplied by the cost-of-living adjustment, rounded to the nearest $1,000 increment.

(B) Calculation of cost-of-living adjustment.--For the purposes of subparagraph (A), the cost-of-living adjustment for any calendar year shall be the percentage, if any, by which the consumer price index for the succeeding calendar year exceeds the consumer price index for calendar year 2005.

(i) In general.--For the purposes of subparagraph (B), the consumer price index for any calendar year is the average of the consumer price index as of the close of the 12-month period ending on August 31 of such calendar year.

(ii) Definition.--For purposes of clause (i), the term

``consumer price index'' means the consumer price index published by the Department of Labor. The consumer price index series to be used for award escalations shall include the consumer price index used for all-urban consumers, with an area coverage of the United States city average, for all items, based on the 1982-1984 index based period, as published by the Department of Labor.

SEC. 132. MEDICAL MONITORING.

(a) Relation to Statute of Limitations.--The filing of a claim under this Act that seeks reimbursement for medical monitoring shall not be considered as evidence that the claimant has discovered facts that would otherwise commence the period applicable for purposes of the statute of limitations under section 113(b).

(b) Costs.--Reimbursable medical monitoring costs shall include the costs of a claimant not covered by health insurance for an examination by the claimant's physician, x-ray tests, and pulmonary function tests every 3 years.

(1) the reasonable costs for medical monitoring that is reimbursable; and

(2) the procedures applicable to asbestos claimants.

SEC. 133. PAYMENT.

(a) Structured Payments.--

(1) In general.--An asbestos claimant who is entitled to an award should receive the amount of the award through structured payments from the Fund, made over a period of 3 years, and in no event more than 4 years after the date of final adjudication of the claim.

(2) Payment period and amount.--There shall be a presumption that any award paid under this subsection shall provide for payment of--

(A) 40 percent of the total amount in year 1;

(B) 30 percent of the total amount in year 2; and

(3) Extension of payment period.--

(A) In general.--The Administrator shall develop guidelines to provide for the payment period of an award under subsection (a) to be extended to a 4-year period if such action is warranted in order to preserve the overall solvency of the Fund. Such guidelines shall include reference to the number of claims made to the Fund and the awards made and scheduled to be paid from the Fund as provided under section 405.

(B) Limitations.--In no event shall less than 50 percent of an award be paid in the first 2 years of the payment period under this subsection.

(4) Lump-sum payments.--

(A) In general.--The Administrator shall develop guidelines to provide for 1 lump-sum payment to asbestos claimants who are mesothelioma victims and who are alive on the date on which the Administrator receives notice of the eligibility of the claimant.

(B) Timing of payments.--Lump-sum payments shall be made within the shorter of--

(i) not later than 30 days after the date the claim is approved by the Administrator; or

(ii) not later than 6 months after the date the claim is filed.

(C) Timing of payments to be adjusted with respect to solvency of the fund.--If the Administrator determines that solvency of the Fund would be severely harmed by the timing of the payments required under subparagraph (B), the time for such payments may be extended to the shorter of--

(i) not later than 6 months after the date the claim is approved by the Administrator; or

(ii) not later than 11 months after the date the claim is filed.

(5) Expedited payments.--

(A) In general.--The Administrator shall develop guidelines to provide for expedited payments to asbestos claimants in cases of terminal health claims as described under section 106(c)(2)(B) and (C).

(B) Timing of payments.--Total payments shall be made within the shorter of--

(i) not later than 6 months after the date the claim is approved by the Administrator; or

(ii) not later than 1 year after the date the claim is filed.

(i) not later than 1 year after the date the claim is approved by the Administrator; or

(ii) not later than 2 years after the date the claim is filed.

(D) Prioritization of claims.--The Administrator shall, in final regulations promulgated under section 101(c), designate categories of claims to be handled on an expedited basis. The Administrator shall prioritize the processing and payment of health claims involving claimants with the most serious health risks. The Administrator shall also prioritize claims from claimants who face extreme financial hardship.

(6) Annuity.--An asbestos claimant may elect to receive any payments to which that claimant is entitled under this title in the form of an annuity.

(b) Limitation on Transferability.--A claim filed under this Act shall not be assignable or otherwise transferable under this Act.

(c) Creditors.--An award under this title shall be exempt from all claims of creditors and from levy, execution, and attachment or other remedy for recovery or collection of a debt, and such exemption may not be waived.

(d) Medicare as Secondary Payer.--No award under this title shall be deemed a payment for purposes of section 1862 of the Social Security Act (42 U.S.C. 1395y).

(e) Exempt Property in Asbestos Claimant's Bankruptcy Case.--If an asbestos claimant files a petition for relief under section 301 of title 11, United States Code, no award granted under this Act shall be treated as property of the bankruptcy estate of the asbestos claimant in accordance with section 541(b)(6) of title 11, United States Code.

(f) Effect of Payment.--The full payment of an asbestos claim under this section shall be in full satisfaction of such claim and shall be deemed to operate as a release to such claim. No claimant with an asbestos claim that has been fully paid under this section may proceed in the tort system with respect to such claim.

SEC. 134. SETOFFS FOR COLLATERAL SOURCE COMPENSATION AND

PRIOR AWARDS.

(a) In General.--The amount of an award otherwise available to an asbestos claimant under this title shall be reduced by the amount of any collateral source compensation and by any amounts paid or to be paid to the claimant for a prior award under this Act.

(b) Exclusions.--

(1) Collateral source compensation.--In no case shall statutory benefits under workers' compensation laws, special adjustments made under section 131(b)(3), occupational or total disability benefits under the Railroad Retirement Act

(45 U.S.C. 201 et seq.), sickness benefits under the Railroad Unemployment Insurance Act (45 U.S.C. 351 et seq.), and veterans' benefits programs be deemed as collateral source compensation for purposes of this section.

(2) Prior award payments.--Any amounts paid or to be paid for a prior claim for a nonmalignant disease (Levels I through V) filed against the Fund shall not be deducted as a setoff against amounts payable for the second injury claims for a malignant disease (Levels VI through IX), unless the malignancy was diagnosed before the date on which the nonmalignancy claim was compensated.

SEC. 135. CERTAIN CLAIMS NOT AFFECTED BY PAYMENT OF AWARDS.

(a) In General.--The payment of an award under section 106 or 133 shall not be considered a form of compensation or reimbursement for a loss for purposes of imposing liability on any asbestos claimant receiving such payment to repay any--

(1) insurance carrier for insurance payments; or

(2) person or governmental entity on account of worker's compensation, health care, or disability payments.

(b) No Effect on Claims.--

(1) In general.--The payment of an award to an asbestos claimant under section 106 or 133 shall not affect any claim of an asbestos claimant against--

(A) an insurance carrier with respect to insurance; or

(B) against any person or governmental entity with respect to worker's compensation, healthcare, or disability.

(2) Rule of construction.--Nothing in this subsection shall be construed to authorize the pursuit of a claim that is preempted under section 403.

TITLE II--ASBESTOS INJURY CLAIMS RESOLUTION FUND

Subtitle A--Asbestos Defendants Funding Allocation

SEC. 201. DEFINITIONS.

In this subtitle, the following definitions shall apply:

(1) Affiliated group.--The term ``affiliated group''--

(A) means a defendant participant that is an ultimate parent and any person whose entire beneficial interest is directly or indirectly owned by that ultimate parent on the date of enactment of this Act; and

(B) shall not include any person that is a debtor or any direct or indirect majority-owned subsidiary of a debtor.

(2) Indemnifiable cost.--The term ``indemnifiable cost'' means a cost, expense, debt, judgment, or settlement incurred with respect to an asbestos claim that, at any time before December 31, 2002, was or could have been subject to indemnification, contribution, surety, or guaranty.

(3) Indemnitee.--The term ``indemnitee'' means a person against whom any asbestos claim has been asserted before December 31, 2002, who has received from any other person, or on whose behalf a sum has been paid by such other person to any third person, in settlement, judgment, defense, or indemnity in connection with an alleged duty with respect to the defense or indemnification of such person concerning that asbestos claim, other than under a policy of insurance or reinsurance.

(4) Indemnitor.--The term ``indemnitor'' means a person who has paid under a written agreement at any time before December 31, 2002, a sum in settlement, judgment, defense, or indemnity to or on behalf of any person defending against an asbestos claim, in connection with an alleged duty with respect to the defense or indemnification of such person concerning that asbestos claim, except that payments by an insurer or reinsurer under a contract of insurance or reinsurance shall not make the insurer or reinsurer an indemnitor for purposes of this subtitle.

(5) Prior asbestos expenditures.--The term ``prior asbestos expenditures''--

(A) means the gross total amount paid by or on behalf of a person at any time before December 31, 2002, in settlement, judgment, defense, or indemnity costs related to all asbestos claims against that person;

(B) includes payments made by insurance carriers to or for the benefit of such person or on such person's behalf with respect to such asbestos claims, except as provided in section 204(g);

(C) shall not include any payment made by a person in connection with or as a result of changes in insurance reserves required by contract or any activity or dispute related to insurance coverage matters for asbestos-related liabilities; and

(D) shall not include any payment made by or on behalf of persons who are or were common carriers by railroad for asbestos claims brought under the Act of April 22, 1908 (45 U.S.C. 51 et seq.), commonly known as the Employers' Liability Act, as a result of operations as a common carrier by railroad, including settlement, judgment, defense, or indemnity costs associated with these claims.

(6) Ultimate parent.--The term ``ultimate parent'' means a person--

(A) that owned, as of December 31, 2002, the entire beneficial interest, directly or indirectly, of at least 1 other person; and

(B) whose entire beneficial interest was not owned, on December 31, 2002, directly or indirectly, by any other single person (other than a natural person).

(7) Asbestos premises claim.--The term ``asbestos premises claim''--

(A) means an asbestos claim against a current or former premises owner or landowner, or person controlling or possessing premises or land, alleging injury or death caused by exposure to asbestos on such premises or land or by exposure to asbestos carried off such premises or land on the clothing or belongings of another person; and

(B) includes any such asbestos claim against a current or former employer alleging injury or death caused by exposure to asbestos on premises or land owned, controlled or possessed by the employer, if such claim is not a claim for benefits under a workers' compensation law or veterans' benefits program.

(8) Asbestos premises defendant participant.--The term

``asbestos premises defendant participant'' means any defendant participant for which 95 percent or more of its prior asbestos expenditures relate to asbestos premises claims against that defendant participant.

SEC. 202. AUTHORITY AND TIERS.

(a) Liability for Payments to the Fund.--

(1) In general.--Defendant participants shall be liable for payments to the Fund in accordance with this section based on tiers and subtiers assigned to defendant participants.

(2) Aggregate payment obligations level.--The total payments required of all defendant participants over the life of the Fund shall not exceed a sum equal to $90,000,000,000 less any bankruptcy trust credits under section 222(d). The Administrator shall have the authority to allocate the payments required of the defendant participants among the tiers as provided in this title.

(3) Ability to enter reorganization.--Notwithstanding any other provision of this Act, all debtors that, together with all of their direct or indirect majority-owned subsidiaries, have prior asbestos expenditures less than $1,000,000 may proceed with the filing, solicitation, and confirmation of a plan of reorganization that does not comply with the requirements of this Act, including a trust and channeling injunction under section 524(g) of title 11, United States Code. Any asbestos claim made in conjunction with a plan of reorganization allowable under the preceding sentence shall be subject to section 403(d) of this Act.

(b) Tier I.--Tier I shall include all debtors that, together with all of their direct or indirect majority-owned subsidiaries, have prior asbestos expenditures greater than

$1,000,000.

(1) Definition.--

(A) In general.--In this subsection, the term ``bankrupt business entity'' means a person that is not a natural person that--

(i) filed a petition for relief under chapter 11, of title 11, United States Code, before January 1, 2003;

(ii) has not substantially consummated, as such term is defined under section 1101(2) of title 11, United States Code, a plan of reorganization as of the date of enactment of this Act; and

(iii) the bankruptcy court presiding over the business entity's case determines, after notice and a hearing upon motion filed by the entity within 30 days after the date of enactment of this Act, that asbestos liability was not the sole or precipitating cause of the entity's chapter 11 filing.

(B) Motion and related matters.--A motion under subparagraph (A)(iii) shall be supported by--

(i) an affidavit or declaration of the chief executive officer, chief financial officer, or chief legal officer of the business entity; and

(ii) copies of the entity's public statements and securities filings made in connection with the entity's filing for chapter 11 protection.

Notice of such motion shall be as directed by the bankruptcy court, and the hearing shall be limited to consideration of the question of whether or not asbestos liability was the sole or precipitating cause of the entity's chapter 11 filing. The bankruptcy court shall hold a hearing and make its determination with respect to the motion within 30 days after the date the motion is filed. In making its determination, the bankruptcy court shall take into account the affidavits, public statements, and securities filings, and other information, if any, submitted by the entity and all other facts and circumstances presented by an objecting party. Any review of this determination shall be an expedited appeal and limited to whether the decision was against the weight of the evidence. Any appeal of a determination shall be an expedited review to the United States Circuit Court of Appeals for the circuit in which the bankruptcy is filed.

(2) Proceeding with reorganization plan.--A bankrupt business entity may proceed with the filing, solicitation, confirmation, and consummation of a plan of reorganization that does not comply with the requirements of this Act, including a trust and channeling injunction described in section 524(g) of title 11, United States Code, notwithstanding any other provisions of this Act, if the bankruptcy court makes a favorable determination under paragraph (1)(B), unless the bankruptcy court's determination is overruled on appeal and all appeals are final. Such a bankrupt business entity may continue to so proceed, if--

(A) on request of a party in interest or on a motion of the court, and after a notice and a hearing, the bankruptcy court presiding over the chapter 11 case of the bankrupt business entity determines that such confirmation is required to avoid the liquidation or the need for further financial reorganization of that entity; and

(B) an order confirming the plan of reorganization is entered by the bankruptcy court within 9 months after the date of enactment of this Act or such longer period of time approved by the bankruptcy court for cause shown.

(3) Applicability.--If the bankruptcy court does not make the determination required under paragraph (2), or if an order confirming the plan is not entered within 9 months after the date of enactment of this Act or such longer period of time approved by the bankruptcy court for cause shown, the provisions of this Act shall apply to the bankrupt business entity notwithstanding the certification. Any timely appeal under title 11, United States Code, from a confirmation order entered during the applicable time period shall automatically extend the time during which this Act is inapplicable to the bankrupt business entity, until the appeal is fully and finally resolved.

(4) Offsets.--

(A) Payments by insurers.--To the extent that a bankrupt business entity or debtor successfully confirms a plan of reorganization, including a trust, and channeling injunction that involves payments by insurers who are otherwise subject to this Act as described under section 524(g) of title 11, United States Code, an insurer who makes payments to the trust shall obtain a dollar-for-dollar reduction in the amount otherwise payable by that insurer under this Act to the Fund.

(B) Contributions to fund.--Any cash payments by a bankrupt business entity, if any, to a trust described under section 524(g) of title 11, United States Code, may be counted as a contribution to the Fund.

(d) Tiers II Through VI.--Except as provided in section 204 and subsection (b) of this section, persons or affiliated groups are included in Tier II, III, IV, V, or VI, according to the prior asbestos expenditures paid by such persons or affiliated groups as follows:

(1) Tier II: $75,000,000 or greater.

(2) Tier III: $50,000,000 or greater, but less than

$75,000,000.

(3) Tier IV: $10,000,000 or greater, but less than

$50,000,000.

(4) Tier V: $5,000,000 or greater, but less than

$10,000,000.

(5) Tier VI: $1,000,000 or greater, but less than

$5,000,000.

(6) Asbestos premises defendant participants.--

(A) In general.--Asbestos premises defendant participants that would be included in Tier II, III, IV or V according to their prior asbestos expenditures shall, after 5 years of the Fund being operational, instead be assigned to the immediately lower tier, such that--

(i) an asbestos premises defendant participant that would be assigned to Tier II shall instead be assigned to Tier III;

(ii) an asbestos premises defendant participant that would be assigned to Tier III shall instead be assigned to Tier IV;

(iii) an asbestos premises defendant participant that would be assigned to Tier IV shall instead be assigned to Tier V; and

(iv) an asbestos premises defendant participant that would be assigned to Tier V shall instead be assigned to Tier VI.

(B) Return to original tier.--The Administrator may return asbestos premises defendant participants to their original tier, on a yearly basis, if the Administrator determines that the additional revenues that would be collected are needed to preserve the solvency of the Fund.

(e) Tier Placement and Costs.--

(1) Permanent tier placement.--After a defendant participant or affiliated group is assigned to a tier and subtier under section 204(i)(6), the participant or affiliated group shall remain in that tier and subtier throughout the life of the Fund, regardless of subsequent events, including--

(A) the filing of a petition under a chapter of title 11, United States Code;

(B) a discharge of debt in bankruptcy;

(D) the sale or transfer of assets to any other person or affiliated group, unless the Administrator finds that the information submitted by the participant or affiliated group to support its inclusion in that tier was inaccurate.

(2) Costs.--Payments to the Fund by all persons that are the subject of a case under a chapter of title 11, United States Code, after the date of enactment of this Act--

(A) shall constitute costs and expenses of administration of the case under section 503 of title 11, United States Code, and shall be payable in accordance with the payment provisions under this subtitle notwithstanding the pendency of the case under that title 11;

(B) shall not be stayed or affected as to enforcement or collection by any stay or injunction power of any court; and

(f) Superseding Provisions.--

(1) In general.--All of the following shall be superseded in their entireties by this Act:

(A) The treatment of any asbestos claim in any plan of reorganization with respect to any debtor included in Tier I.

(B) Any asbestos claim against any debtor included in Tier I.

(C) Any agreement, understanding, or undertaking by any such debtor or any third party with respect to the treatment of any asbestos claim filed in a debtor's bankruptcy case or with respect to a debtor before the date of enactment of this Act, whenever such debtor's case is either still pending, if such case is pending under a chapter other than chapter 11 of title 11, United States Code, or subject to confirmation or substantial consummation of a plan of reorganization under chapter 11 of title 11, United States Code.

(2) Prior agreements of no effect.--Notwithstanding section 403(c)(3), any plan of reorganization, agreement, understanding, or undertaking by any debtor (including any pre-petition agreement, understanding, or undertaking that requires future performance) or any third party under paragraph (1), and any agreement, understanding, or undertaking entered into in anticipation, contemplation, or furtherance of a plan of reorganization, to the extent it relates to any asbestos claim, shall be of no force or effect, and no person shall have any right or claim with respect to any such agreement, understanding, or undertaking.

SEC. 203. SUBTIERS.

(a) In General.--

(1) Subtier liability.--Except as otherwise provided under subsections (b), (d), and (l) of section 204, persons or affiliated groups shall be included within Tiers I through VII and shall pay amounts to the Fund in accordance with this section.

(2) Revenues.--

(A) In general.--For purposes of this section, revenues shall be determined in accordance with generally accepted accounting principles, consistently applied, using the amount reported as revenues in the annual report filed with the Securities and Exchange Commission in accordance with the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) for the most recent fiscal year ending on or before December 31, 2002. If the defendant participant or affiliated group does not file reports with the Securities and Exchange Commission, revenues shall be the amount that the defendant participant or affiliated group would have reported as revenues under the rules of the Securities and Exchange Commission in the event that it had been required to file.

(B) Insurance premiums.--Any portion of revenues of a defendant participant that is derived from insurance premiums shall not be used to calculate the payment obligation of that defendant participant under this subtitle.

(C) Debtors.--Each debtor's revenues shall include the revenues of the debtor and all of the direct or indirect majority-owned subsidiaries of that debtor, except that the pro forma revenues of a person that is included in Subtier 2 of Tier I shall not be included in calculating the revenues of any debtor that is a direct or indirect majority owner of such Subtier 2 person. If a debtor or affiliated group includes a person in respect of whose liabilities for asbestos claims a class action trust has been established, there shall be excluded from the 2002 revenues of such debtor or affiliated group--

(i) all revenues of the person in respect of whose liabilities for asbestos claims the class action trust was established; and

(ii) all revenues of the debtor and affiliated group attributable to the historical business operations or assets of such person, regardless of whether such business operations or assets were owned or conducted during the year 2002 by such person or by any other person included within such debtor and affiliated group.

(b) Tier I Subtiers.--

(1) In general.--Each debtor in Tier I shall be included in subtiers and shall pay amounts to the Fund as provided under this section.

(2) Subtier 1.--

(A) In general.--All persons that are debtors with prior asbestos expenditures of $1,000,000 or greater, shall be included in Subtier 1.

(B) Payment.--Each debtor included in Subtier 1 shall pay on an annual basis 1.67024 percent of the debtor's 2002 revenues.

(C) Other assets.--The Administrator, at the sole discretion of the Administrator, may allow a Subtier 1 debtor to satisfy its funding obligation under this paragraph with assets other than cash if the Administrator determines that requiring an all-cash payment of the debtor's funding obligation would render the debtor's reorganization infeasible.

(D) Liability.--

(i) In general.--If a person who is subject to a case pending under a chapter of title 11, United States Code, as defined in section 201(3)(A)(i), does not pay when due any payment obligation for the debtor, the Administrator shall have the right to seek payment of all or any portion of the entire amount due (as well as any other amount for which the debtor may be liable under sections 223 and 224) from any of the direct or indirect majority-owned subsidiaries under section 201(3)(A)(ii).

(ii) Cause of action.--Notwithstanding section 221(e), this Act shall not preclude actions among persons within a debtor under section 201(3)(A) (i) and (ii) with respect to the payment obligations under this Act.

(iii) Right of contribution.--

(I) In general.--Notwithstanding any other provision of this Act, if a direct or indirect majority-owned foreign subsidiary of a debtor participant (with such relationship to the debtor participant as determined on the date of enactment of this Act) is or becomes subject to any foreign insolvency proceedings, and such foreign direct or indirect-majority owned subsidiary is liquidated in connection with such foreign insolvency proceedings (or if the debtor participant's interest in such foreign subsidiary is otherwise canceled or terminated in connection with such foreign insolvency proceedings), the debtor participant shall have a claim against such foreign subsidiary or the estate of such foreign subsidiary in an amount equal to the greater of--

(aa) the estimated amount of all current and future asbestos liabilities against such foreign subsidiary; or

(bb) the foreign subsidiary's allocable share of the debtor participant's funding obligations to the Fund as determined by such foreign subsidiary's allocable share of the debtor participant's 2002 gross revenue.

(II) Determination of claim amount.--The claim amount under subclause (I) (aa) or (bb) shall be determined by a court of competent jurisdiction in the United States.

(III) Effect on payment obligation.--The right to, or recovery under, any such claim shall not reduce, limit, delay, or otherwise affect the debtor participant's payment obligations under this Act.

(3) Subtier 2.--

(A) In general.--Notwithstanding paragraph (2), all persons that are debtors that have no material continuing business operations, other than class action trusts under paragraph

(6), but hold cash or other assets that have been allocated or earmarked for the settlement of asbestos claims shall be included in Subtier 2.

(B) Assignment of assets.--Not later than 90 days after the date of enactment of this Act, each person included in Subtier 2 shall assign all of its unencumbered assets to the Fund.

(4) Subtier 3.--

(A) In general.--Notwithstanding paragraph (2), all persons that are debtors other than those included in Subtier 2, which have no material continuing business operations and no cash or other assets allocated or earmarked for the settlement of any asbestos claim, shall be included in Subtier 3.

(B) Assignment of unencumbered assets.--Not later than 90 days after the date of enactment of this Act, each person included in Subtier 3 shall contribute an amount equal to 50 percent of its total unencumbered assets.

(5) Calculation of unencumbered assets.--Unencumbered assets shall be calculated as the Subtier 2 or 3 person's total assets, excluding insurance-related assets, jointly held, in trust or otherwise, with a defendant participant, less--

(A) all allowable administrative expenses;

(B) allowable priority claims under section 507 of title 11, United States Code; and

(6) Class action trust.--The assets of any class action trust that has been established in respect of the liabilities for asbestos claims of any person included within a debtor and affiliated group that has been included in Tier I

(exclusive of any assets needed to pay previously incurred expenses and asbestos claims within the meaning of section 403(d)(1), before the date of enactment of this Act) shall be transferred to the Fund not later than 60 days after the date of enactment of this Act.

(1) In general.--Each person or affiliated group in Tier II shall be included in 1 of the 5 subtiers of Tier II, based on the person's or affiliated group's revenues. Such subtiers shall each contain as close to an equal number of total persons and affiliated groups as possible, with--

(A) those persons or affiliated groups with the highest revenues included in Subtier 1;

(B) those persons or affiliated groups with the next highest revenues included in Subtier 2;

(D) those persons or affiliated groups with the next lowest revenues included in Subtier 4; and

(E) those persons or affiliated groups remaining included in Subtier 3.

(2) Payments.--Each person or affiliated group within each subtier shall pay, on an annual basis, the following:

(A) Subtier 1: $27,500,000.

(B) Subtier 2: $24,750,000.

(D) Subtier 4: $19,250,000.

(E) Subtier 5: $16,500,000.

(d) Tier III Subtiers.--

(1) In general.--Each person or affiliated group in Tier III shall be included in 1 of the 5 subtiers of Tier III, based on the person's or affiliated group's revenues. Such subtiers shall each contain as close to an equal number of total persons and affiliated groups as possible, with--

(A) those persons or affiliated groups with the highest revenues included in Subtier 1;

(B) those persons or affiliated groups with the next highest revenues included in Subtier 2;

(D) those persons or affiliated groups with the next lowest revenues included in Subtier 4; and

(E) those persons or affiliated groups remaining included in Subtier 3.

(2) Payments.--Each person or affiliated group within each subtier shall pay, on an annual basis, the following:

(A) Subtier 1: $16,500,000.

(B) Subtier 2: $13,750,000.

(D) Subtier 4: $8,250,000.

(E) Subtier 5: $5,500,000.

(e) Tier IV Subtiers.--

(1) In general.--Each person or affiliated group in Tier IV shall be included in 1 of the 4 subtiers of Tier IV, based on the person's or affiliated group's revenues. Such subtiers shall each contain as close to an equal number of total persons and affiliated groups as possible, with those persons or affiliated groups with the highest revenues in Subtier 1, those with the lowest revenues in Subtier 4. Those persons or affiliated groups with the highest revenues among those remaining will be included in Subtier 2 and the rest in Subtier 3.

(2) Payment.--Each person or affiliated group within each subtier shall pay, on an annual basis, the following:

(A) Subtier 1: $3,850,000.

(B) Subtier 2: $2,475,000.

(D) Subtier 4: $550,000.

(f) Tier V Subtiers.--

(1) In general.--Each person or affiliated group in Tier V shall be included in 1 of the 3 subtiers of Tier V, based on the person's or affiliated group's revenues. Such subtiers shall each contain as close to an equal number of total persons and affiliated groups as possible, with those persons or affiliated groups with the highest revenues in Subtier 1, those with the lowest revenues in Subtier 3, and those remaining in Subtier 2.

(2) Payment.--Each person or affiliated group within each subtier shall pay, on an annual basis, the following:

(A) Subtier 1: $1,000,000.

(B) Subtier 2: $500,000.

(g) Tier VI Subtiers.--

(1) In general.--Each person or affiliated group in Tier VI shall be included in 1 of the 3 subtiers of Tier VI, based on the person's or affiliated group's revenues. Such subtiers shall each contain as close to an equal number of total persons and affiliated groups as possible, with those persons or affiliated groups with the highest revenues in Subtier 1, those with the lowest revenues in Subtier 3, and those remaining in Subtier 2.

(2) Payment.--Each person or affiliated group within each subtier shall pay, on an annual basis, the following:

(A) Subtier 1: $500,000.

(B) Subtier 2: $250,000.

(3) Other payment for certain persons and affiliated groups.--

(A) In general.--Notwithstanding any other provision of this subsection, and if an adjustment authorized by this subsection does not impair the overall solvency of the Fund, any person or affiliated group within Tier VI whose required subtier payment in any given year would exceed such person's or group's average annual expenditure on settlements, and judgments of asbestos disease-related claims over the 8 years before the date of enactment of this Act shall make the payment required of the immediately lower subtier or, if the person's or group's average annual expenditures on settlements and judgments over the 8 years before the date of enactment of this Act is less than $100,000, shall not be required to make a payment under this Act.

(B) No further adjustment.--Any person or affiliated group that receives an adjustment under this paragraph shall not be eligible to receive any further adjustment under section 204(d).

(h) Tier VII.--

(1) In general.--Notwithstanding prior asbestos expenditures that might qualify a person or affiliated group to be included in Tiers II, III, IV, V, or VI, a person or affiliated group shall also be included in Tier VII, if the person or affiliated group--

(A) is or has at any time been subject to asbestos claims brought under the Act of April 22, 1908 (45 U.S.C. 51 et seq.), commonly known as the Employers' Liability Act, as a result of operations as a common carrier by railroad; and

(B) has paid (including any payments made by others on behalf of such person or affiliated group) not less than

$5,000,000 in settlement, judgment, defense, or indemnity costs relating to such claims, and such settlement, judgment, defense, or indemnity costs constitute 75 percent or more of the total prior asbestos expenditures by the person or affiliated group.

(2) Additional amount.--The payment requirement for persons or affiliated groups included in Tier VII shall be in addition to any payment requirement applicable to such person or affiliated group under Tiers II through VI.

(3) Subtier 1.--Each person or affiliated group in Tier VII with revenues of $6,000,000,000 or more is included in Subtier 1 and shall make annual payments of $11,000,000 to the Fund.

(4) Subtier 2.--Each person or affiliated group in Tier VII with revenues of less than $6,000,000,000, but not less than

$4,000,000,000 is included in Subtier 2 and shall make annual payments of $5,500,000 to the Fund.

(5) Subtier 3.--Each person or affiliated group in Tier VII with revenues of less than $4,000,000,000, but not less than

$500,000,000 is included in Subtier 3 and shall make annual payments of $550,000 to the Fund.

(6) Joint venture revenues and liability.--

(A) Revenues.--For purposes of this subsection, the revenues of a joint venture shall be included on a pro rata basis reflecting relative joint ownership to calculate the revenues of the parents of that joint venture. The joint venture shall not be responsible for a contribution amount under this subsection.

(B) Liability.--For purposes of this subsection, the liability under the Act of April 22, 1908 (45 U.S.C. 51 et seq.), commonly known as the Employers' Liability Act, shall be attributed to the parent owners of the joint venture on a pro rata basis, reflecting their relative share of ownership. The joint venture shall not be responsible for a payment amount under this provision.

SEC. 204. ASSESSMENT ADMINISTRATION.

(a) In General.--

(1) Payment.--Each defendant participant or affiliated group shall pay to the Fund in the amounts provided under this subtitle as appropriate for its tier and subtier each year until the earlier to occur of the following:

(A) The participant or affiliated group has satisfied its obligations under this subtitle during the 30 annual payment cycles of the operation of the Fund.

(B) The amount received by the Fund from defendant participants, excluding any amounts rebated to defendant participants under subsections (d) and (m), equals the maximum aggregate payment obligation of section 202(a)(2).

(2) Limitation.--

(A) Definition.--In this paragraph, the term ``affiliated group'' shall include any defendant participant that is an ultimate parent.

(B) In general.--For any affiliated group, the total payment in any year, including any guaranteed payment surcharge under subsection (l) and any bankruptcy trust guarantee surcharge under section 222(c), shall not exceed the lesser of $16,702,400 or 1.67024 percent of the revenues of the affiliated group for the most recent fiscal year ending on or before December 31, 2002, or for the most recent 12-month fiscal year as of the date the limitation is applied, whichever is greater.

(C) Exception.--The limitation in this paragraph shall not apply to defendant participants in Tier I or to any affiliated group whose revenues for the most recent fiscal year ending on or before December 31, 2002, or for the most recent 12-month fiscal year as of the date the limitation applied, whichever is greater, exceeds $1,000,000,000.

(D) Determinations.--The revenues of the affiliated group shall be determined in accordance with section 203(a)(2), except for the applicable date. An affiliated group that claims a reduction in its payment in any year shall file with the Administrator, in accordance with procedures prescribed by the Administrator, sufficient information to allow the Administrator to determine the amount of any such reduction in that year. If as a result of the application of the limitation provided in this paragraph an affiliated group is exempt from paying all or part of a guaranteed payment surcharge or bankruptcy trust surcharge, then the reduction in the affiliated group's payment obligation due to the limitation in this subsection shall be redistributed in accordance with subsection (l).

(E) Rule of construction.--Nothing in this paragraph shall be construed as reducing the minimum aggregate annual payment obligation of defendant participants as provided under subsection (h).

(b) Small Business Exemption.--Notwithstanding any other provision of this subtitle, a person or affiliated group that is a small business concern (as defined under section 3 of the Small Business Act (15 U.S.C. 632)), on December 31, 2002, is exempt from any payment requirement under this subtitle and shall not be included in the subtier allocations under section 203.

(c) Procedures.--The Administrator shall prescribe procedures on how amounts payable under this subtitle are to be paid, including, to the extent the Administrator determines appropriate, procedures relating to payment in installments.

(d) Adjustments.--

(1) In general.--Under expedited procedures established by the Administrator, a defendant participant may seek adjustment of the amount of its payment obligation based on severe financial hardship or demonstrated inequity. The Administrator may determine whether to grant an adjustment and the size of any such adjustment, in accordance with this subsection. A defendant participant has a right to obtain a rehearing of the Administrator's determination under this subsection under the procedures prescribed in subsection

(i)(10). The Administrator may adjust a defendant participant's payment obligations under this subsection, either by forgiving the relevant portion of the otherwise applicable payment obligation or by providing relevant rebates from the defendant hardship and inequity adjustment account created under subsection (j) after payment of the otherwise applicable payment obligation, at the discretion of the Administrator.

(2) Financial hardship adjustments.--

(A) In general.--Any defendant participant in any tier may apply for an adjustment under this paragraph at any time during the period in which a payment obligation to the Fund remains outstanding and may qualify for such an adjustment by demonstrating to the satisfaction of the Administrator that the amount of its payment obligation would materially and adversely affect the defendant participant's ability to continue its business and to pay or satisfy its debts generally as and when they come due. Such an adjustment shall be in an amount that in the judgment of the Administrator is reasonably necessary to prevent such material and adverse effect on the defendant participant's ability to continue its business and to pay or satisfy its debts generally as and when they come due.

(B) Factors to consider.--In determining whether to make an adjustment under subparagraph (A) and the amount thereof, the Administrator shall consider--

(i) the financial situation of the defendant participant and its affiliated group as shown in historical audited financial statements, including income statement, balance sheet, and statement of cash flow, for the 3 fiscal years ending immediately before the application and projected financial statements for the 3 fiscal years following the application;

(ii) an analysis of capital spending and fixed charge coverage on a historical basis for the 3 fiscal years immediately preceding a defendant participant's application and for the 3 fiscal years following the application;

(iii) any payments or transfers of property made, or obligations incurred, within the preceding 6 years by the defendant participant to or for the benefit of any insider as defined under section 101(31) of title 11, United States Code, or any affiliate as defined under section 101(2) of title 11, United States Code;

(iv) any prior extraordinary transactions within the preceding 6 years involving the defendant participant, including payments of extraordinary salaries, bonuses, or dividends;

(v) the defendant participant's ability to satisfy its payment obligation to the Fund by borrowing or financing with equity capital, or through issuance of securities of the defendant participant or its affiliated group to the Fund;

(vi) the defendant participant's ability to delay discretionary capital spending; and

(vii) any other factor that the Administrator considers relevant.

(C) Term.--A financial hardship adjustment under this paragraph shall have a term of 5 years unless the Administrator determines at the time the adjustment is made that a shorter or longer period is appropriate in the light of the financial condition of the defendant participant and its affiliated group and other relevant factors, provided that a financial hardship adjustment under this paragraph shall terminate automatically in the event that the defendant participant holding the adjustment files a petition under title 11, United States Code.

(D) Renewal.--A defendant participant may renew a hardship adjustment upon expiration by demonstrating that it remains justified. Such renewed hardship adjustments shall have a term of 5 years unless the Administrator determines at the time of the renewed adjustment that a shorter or longer period is appropriate in light of the financial condition of the defendant participant and its affiliated group and other relevant factors. A renewed financial hardship adjustment under this paragraph shall terminate automatically in the event that the defendant participant holding the adjustment files a petition under title 11, United States Code.

(E) Procedure.--

(i) In general.--The Administrator shall prescribe the information to be submitted in applications for adjustments under this paragraph.

(ii) Financial information.--All audited financial information required under this paragraph shall be as reported by the defendant participant in its annual report filed with the Securities and Exchange Commission in accordance with the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.). Any defendant participant that does not file reports with the Securities and Exchange Commission or which does not have audited financial statements shall submit financial statements prepared in accordance with generally accepted accounting principles. The chairman, chief executive officer, and chief financial officer of the defendant participant shall certify under penalty of law the completeness and accuracy of the financial statements provided under this subparagraph.

(iii) Certification.--The chairman, chief executive officer, and chief financial officer of the defendant participant shall certify that any projected information and analyses submitted to the Administrator were made in good faith and are reasonable and attainable.

(3) Inequity adjustments.--

(A) In general.--A defendant participant--

(i) may qualify for an adjustment based on inequity by demonstrating that the amount of its payment obligation under the statutory allocation is exceptionally inequitable--

(I) when measured against the amount of the likely cost to the defendant participant net of insurance of its future liability in the tort system in the absence of the Fund;

(II) when measured against the likely cost of past and potential future claims in the absence of this Act;

(III) when compared to the median payment rate for all defendant participants in the same tier; or

(IV) when measured against the percentage of the prior asbestos expenditures of the defendant that were incurred with respect to claims that neither resulted in an adverse judgment against the defendant, nor were the subject of a settlement that required a payment to a plaintiff by or on behalf of that defendant;

(ii) shall qualify for a 2-tier main tier and a 2-tier subtier adjustment reducing the defendant participant's payment obligation based on inequity by demonstrating that not less than 95 percent of such person's prior asbestos expenditures arose from claims related to the manufacture and sale of railroad locomotives and related products, so long as such person's manufacture and sale of railroad locomotives and related products is temporally and causally remote, and for purposes of this clause, a person's manufacture and sale of railroad locomotives and related products shall be deemed to be temporally and causally remote if the asbestos claims historically and generally filed against such person relate to the manufacture and sale of railroad locomotives and related products by an entity dissolved more than 25 years before the date of enactment of this Act;

(iii) shall be granted a 2-tier adjustment reducing the defendant participant's payment obligation based on inequity by demonstrating that not less than 95 percent of such participant's prior asbestos expenditures arose from asbestos claims based on successor liability arising from a merger to which the participant or its predecessor was a party that occurred at least 30 years before the date of enactment of this Act, and that such prior asbestos expenditures exceed the inflation-adjusted value of the assets of the company from which such liability was derived in such merger, and upon such demonstration the Administrator shall grant such adjustment for the life of the Fund and amounts paid by such defendant participant prior to such adjustment in excess of its adjusted payment obligation under this clause shall be credited against next succeeding required payment obligations; and

(iv) may, subject to the discretion of the Administrator, be exempt from any payment obligation if such defendant participant establishes with the Administrator that--

(I) such participant has satisfied all past claims; and

(II) there is no reasonable likelihood in the absence of this Act of any future claims with costs for which the defendant participant might be responsible.

(B) Guidelines.--

(i) In general.--In determining which defendant participants may receive inequity adjustments, the Administrator shall give preference in the following order:

(I) Defendant participants that have significant insurance coverage applicable to asbestos claims, such that on the date of enactment of this Act, 80 percent or more of their available primary insurance limits for asbestos claims remains available.

(II) Defendant participants for which, under the guidance in section 404(a)(2)(E), 75 percent of the prior asbestos expenditures of such defendant participants were caused by or arose from premise liability claims.

(III) Defendant participants that can demonstrate that their prior asbestos expenditures are inflated due to an unusually large, anomalous verdict and that such verdict has caused such defendants to be in a higher tier.

(IV) Any other factor determined reasonable by the Administrator to have caused a serious inequity.

(ii) Consideration.--In determining whether a defendant participant has significant insurance coverage applicable to asbestos claims such that on the date of enactment of this Act, 80 percent or more of their available primary insurance limits for asbestos claims remains available, the Administrator shall inquire and consider--

(I) the defendant participant's expected future liability in the tort system and the adequacy of insurance available measured against future liability; and

(II) whether the insurance coverage is uncontested, or based on a final judgment or settlement.

(C) Payment rate.--For purposes of subparagraph (A), the payment rate of a defendant participant is the payment amount of the defendant participant as a percentage of such defendant participant's gross revenues for the year ending December 31, 2002.

(D) Term.--Subject to the annual availability of funds in the defendant inequity adjustment account established under subsection (j), an inequity adjustment under this subsection shall have a term of 3 years.

(E) Renewal.--A defendant participant may renew an inequity adjustment every 3 years by demonstrating that the adjustment remains justified.

(F) Reinstatement.--

(i) In general.--Following the termination of an inequity adjustment under subparagraph (A), and during the funding period prescribed under subsection (a), the Administrator shall annually determine whether there has been a material change in conditions which would support a finding that the amount of the defendant participant's payment under the statutory allocation was not inequitable. Based on this determination, the Administrator may, consistent with the policies and legislative intent underlying this Act, reinstate any or all of the payment obligations of the defendant participant as if the inequity adjustment had not been granted for that 3-year period.

(ii) Terms and conditions.--In the event of a reinstatement under clause (i), the Administrator may require the defendant participant to pay any part or all of amounts not paid due to the inequity adjustment on such terms and conditions as established by the Administrator.

(4) Tier ii adjustments for well-insured defendant participants.--

(A) Definitions.--In this paragraph--

(i) the term ``adjusted cash flow from operating activities'' means audited cash flows from operating activities as set forth in the Financial Accounting Standards Board Statement of Financial Accounting Standards No. 95 in effect on the date of enactment of this Act, adjusted for amounts--

(I) increased by cash paid for interest and taxes to the extent that such amounts are included in cash flows from operating activities;

(II) increased by payments made for asbestos indemnity, defense costs, and any payments required under this Act, to the extent that such amounts are included in cash flows from operating activities;

(III) increased by nonrecurring and unusual cash charges, including restructuring charges and other non-operating costs, to the extent that such amounts are included in cash flows from operating activities;

(IV) decreased by cash distributions to minority interests to the extent that such amounts are included in cash flows from investing activities and cash flows from financing activities;

(V) increased by cash proceeds on sales of assets net of related secured debt, affiliates, subsidiaries, and investments to the extent that such amounts are included in cash flows from investing and cash flows from financing activities;

(VI) increased by cash distributions from nonconsolidated affiliates and investments to the extent that such amounts are included in cash flows from investing activities and cash flows from financing activities;

(VII) increased by net cash flow used by, and decreased by net cash flow gained from, working capital items to the extent such amounts are not already adjusted under this subparagraph and are included in cash flows from operating activities;

(VIII) increased by net cash flow used by, and decreased by net cash flow gained from, other nonworking capital assets and liabilities, to the extent such amounts are not already adjusted under this subparagraph and are included in cash flows from operating activities;

(IX) decreased by reimbursements or cash proceeds received from asbestos insurance policies for related expenses, to the extent that such amounts are included in cash flows from operating activities; and

(X) decreased by other nonoperating cash income; and

(ii) the term ``working capital'' means current assets

(excluding cash and short-term investments) less current liabilities (excluding short-term debt).

(B) Election of alternative adjustment.--Except for defendant participants that consent to be assigned to Tier II under section 204(i)(7)(A), a defendant participant assigned to subtier 3, 4, or 5 of Tier II may elect the adjustment under this paragraph, which shall apply instead of an adjustment under paragraph (3).

(C) Adjustment.--Subject to subparagraphs (D) and (E), the annual payment obligation, taking into consideration the limitation under subsection (a)(2), of any defendant participant that elects the adjustment under this paragraph shall be adjusted so as not to exceed the greater of $500,000 or 5 percent of that defendant participant's adjusted cash flow from operating activities for the most recent fiscal year ending on or before December 31, 2002, or for the most recent fiscal year.

(D) Limitation.--The aggregate total of adjustments under this paragraph in any year may not exceed $100,000,000. If the aggregate amount of adjustments authorized under this paragraph exceeds $100,000,000, the adjustment to which each defendant participant electing such an adjustment shall be reduced pro rata until the aggregate of all adjustments equals $100,000,000.

(E) Surcharges.--Defendant participants receiving an adjustment under this paragraph shall also be subject to the guaranteed payment surcharge under subsection (m) and the bankruptcy trust surcharge under section 222(c). Such surcharges shall be based on the full amount of any adjustment to which the defendant participant would be entitled under subparagraph (C) without regard to the limitation under subparagraph (D).

(5) Limitation on adjustments.--The aggregate total of inequity adjustments under paragraph (3) in effect in any given year shall not exceed $200,000,000, except to the extent that additional monies are available for such adjustments as a result of carryover of prior years' funds under subsection (j)(3) or as a result of monies being made available in that year under subsection (k)(1)(A).

(6) Rulemaking and advisory panels.--

(A) Appointment.--The Administrator may appoint a Financial Hardship Adjustment Panel and an Inequity Adjustment Panel to advise the Administrator in carrying out this subsection.

(B) Membership.--The membership of the panels appointed under subparagraph (A) may overlap.

(A) shall coordinate their deliberations and advice.

(D) Rules.--The Administrator may adopt rules consistent with this Act to make the determination of hardship and inequity adjustments more efficient and predictable.

(e) Limitation on Liability.--The liability of each defendant participant to pay to the Fund shall be limited to the payment obligations under this Act, and, except as provided in subsection (f) and section 203(b)(2)(D), no defendant participant shall have any liability for the payment obligations of any other defendant participant.

(f) Consolidation of Payments.--

(1) In general.--For purposes of determining the payment levels of defendant participants, any affiliated group including 1 or more defendant participants may irrevocably elect, as part of the submissions to be made under paragraphs

(1) and (3) of subsection (i), to report on a consolidated basis all of the information necessary to determine the payment level under this subtitle and pay to the Fund on a consolidated basis.

(2) Election.--If an affiliated group elects consolidation as provided in this subsection--

(A) for purposes of this Act other than this subsection, the affiliated group shall be treated as if it were a single participant, including with respect to the assessment of a single annual payment under this subtitle for the entire affiliated group;

(B) the ultimate parent of the affiliated group shall prepare and submit each submission to be made under subsection (i) on behalf of the entire affiliated group and shall be solely liable, as between the Administrator and the affiliated group only, for the payment of the annual amount due from the affiliated group under this subtitle, except that, if the ultimate parent does not pay when due any payment obligation for the affiliated group, the Administrator shall have the right to seek payment of all or any portion of the entire amount due (as well as any other amount for which the affiliated group may be liable under sections 223 and 224) from any member of the affiliated group;

(C) all members of the affiliated group shall be identified in the submission under subsection (i) and shall certify compliance with this subsection and the Administrator's regulations implementing this subsection; and

(D) the obligations under this subtitle shall not change even if, after the date of enactment of this Act, the beneficial ownership interest between any members of the affiliated group shall change.

(3) Cause of action.--Notwithstanding section 221(e), this Act shall not preclude actions among persons within an affiliated group with respect to the payment obligations under this Act.

(g) Determination of Prior Asbestos Expenditures.--

(1) In general.--For purposes of determining a defendant participant's prior asbestos expenditures, the Administrator shall prescribe such rules as may be necessary or appropriate to assure that payments by indemnitors before December 31, 2002, shall be counted as part of the indemnitor's prior asbestos expenditures, rather than the indemnitee's prior asbestos expenditures, in accordance with this subsection.

(2) Indemnifiable costs.--If an indemnitor has paid or reimbursed to an indemnitee any indemnifiable cost or otherwise made a payment on behalf of or for the benefit of an indemnitee to a third party for an indemnifiable cost before December 31, 2002, the amount of such indemnifiable cost shall be solely for the account of the indemnitor for purposes under this Act.

(3) Insurance payments.--When computing the prior asbestos expenditures with respect to an asbestos claim, any amount paid or reimbursed by insurance shall be solely for the account of the indemnitor, even if the indemnitor would have no direct right to the benefit of the insurance, if--

(A) such insurance has been paid or reimbursed to the indemnitor or the indemnitee, or paid on behalf of or for the benefit of the indemnitee; and

(B) the indemnitor has either, with respect to such asbestos claim or any similar asbestos claim, paid or reimbursed to its indemnitee any indemnifiable cost or paid to any third party on behalf of or for the benefit of the indemnitee any indemnifiable cost.

(4) Treatment of certain expenditures.--Notwithstanding any other provision of this Act, where--

(A) an indemnitor entered into a stock purchase agreement in 1988 that involved the sale of the stock of businesses that produced friction and other products; and

(B) the stock purchase agreement provided that the indemnitor indemnified the indemnitee and its affiliates for losses arising from various matters, including asbestos claims--

(i) asserted before the date of the agreement; and

(ii) filed after the date of the agreement and prior to the 10-year anniversary of the stock sale,

then the prior asbestos expenditures arising from the asbestos claims described in clauses (i) and (ii) shall not be for the account of either the indemnitor or indemnitee.

(h) Minimum Annual Payments.--

(1) In general.--The aggregate annual payments of defendant participants to the Fund shall be at least $3,000,000,000 for each calendar year in the first 30 years of the Fund, or until such shorter time as the condition set forth in subsection (a)(2) is attained.

(2) Guaranteed payment account.--To the extent payments in accordance with sections 202 and 203 (as modified by subsections (b), (d), (f), (g), and (m) of this section) fail in any year to raise at least $3,000,000,000, after applicable reductions or adjustments have been taken according to subsections (d) and (m), the balance needed to meet this required minimum aggregate annual payment shall be obtained from the defendant guaranteed payment account established under subsection (k).

(3) Guaranteed payment surcharge.--To the extent the procedure set forth in paragraph (2) is insufficient to satisfy the required minimum aggregate annual payment, after applicable reductions or adjustments have been taken according to subsections (d) and (m), the Administrator shall unless the Administrator implements a funding holiday under section 205(b), assess a guaranteed payment surcharge under subsection (l).

(i) Procedures for Making Payments.--

(1) Initial year: tiers ii-vi.--

(A) In general.--Not later than 90 days after enactment of this Act, each defendant participant that is included in Tiers II, III, IV, V, or VI shall file with the Administrator--

(i) a statement of whether the defendant participant irrevocably elects to report on a consolidated basis under subsection (f);

(ii) a good-faith estimate of its prior asbestos expenditures;

(iii) a statement of its 2002 revenues, determined in accordance with section 203(a)(2);

(iv) payment in the amount specified in section 203 for the lowest subtier of the tier within which the defendant participant falls, except that if the defendant participant, or the affiliated group including the defendant participant, had 2002 revenues exceeding $3,000,000,000, it or its affiliated group shall pay the amount specified for Subtier 3 of Tiers II, III, or IV or Subtier 2 of Tiers V or VI, depending on the applicable Tier; and

(v) a signature page personally verifying the truth of the statements and estimates described under this subparagraph, as required under section 404 of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7201 et seq.).

(B) Relief.--

(i) In general.--The Administrator shall establish procedures to grant a defendant participant relief from its initial payment obligation if the participant shows that--

(I) the participant is likely to qualify for a financial hardship adjustment; and

(II) failure to provide interim relief would cause severe irreparable harm.

(ii) Judicial relief.--The Administrator's refusal to grant relief under clause (i) is subject to immediate judicial review under section 303.

(2) Initial year: tier i.--Not later than 60 days after enactment of this Act, each debtor shall file with the Administrator--

(A) a statement identifying the bankruptcy case(s) associated with the debtor;

(B) a statement whether its prior asbestos expenditures exceed $1,000,000;

(C) a statement whether it has material continuing business operations and, if not, whether it holds cash or other assets that have been allocated or earmarked for asbestos settlements;

(D) in the case of debtors falling within Subtier 1 of Tier I--

(i) a statement of the debtor's 2002 revenues, determined in accordance with section 203(a)(2); and

(ii) a payment under section 203(b)(2)(B);

(E) in the case of debtors falling within Subtier 2 of Tier I, an assignment of its assets under section 203(b)(3)(B);

(F) in the case of debtors falling within Subtier 3 of Tier I, a payment under section 203(b)(4)(B), and a statement of how such payment was calculated; and

(G) a signature page personally verifying the truth of the statements and estimates described under this paragraph, as required under section 404 of the Sarbanes-Oxley Act of 2002

(15 U.S.C. 7201 et seq.).

(3) Initial year: tier vii.--Not later than 90 days after enactment of this Act, each defendant participant in Tier VII shall file with the Administrator--

(A) a good faith estimate of all payments of the type described in section 203(h)(1) (as modified by section 203(h)(6));

(B) a statement of revenues calculated in accordance with sections 203(a)(2) and 203(h); and

(4) Notice to participants.--Not later than 240 days after enactment of this Act, the Administrator shall--

(A) directly notify all reasonably identifiable defendant participants of the requirement to submit information necessary to calculate the amount of any required payment to the Fund; and

(B) publish in the Federal Register a notice--

(i) setting forth the criteria in this Act, and as prescribed by the Administrator in accordance with this Act, for paying under this subtitle as a defendant participant and requiring any person who may be a defendant participant to submit such information; and

(ii) that includes a list of all defendant participants notified by the Administrator under subparagraph (A), and provides for 30 days for the submission by the public of comments or information regarding the completeness and accuracy of the list of identified defendant participants.

(5) Response required.--

(A) In general.--Any person who receives notice under paragraph (4)(A), and any other person meeting the criteria specified in the notice published under paragraph (4)(B), shall provide the Administrator with an address to send any notice from the Administrator in accordance with this Act and all the information required by the Administrator in accordance with this subsection no later than the earlier of--

(i) 30 days after the receipt of direct notice; or

(ii) 30 days after the publication of notice in the Federal Register.

(B) Certification.--The response submitted under subparagraph (A) shall be signed by a responsible corporate officer, general partner, proprietor, or individual of similar authority, who shall certify under penalty of law the completeness and accuracy of the information submitted.

(C) Consent to audit authority.--The response submitted under subparagraph (A) shall include, on behalf of the defendant participant or affiliated group, a consent to the Administrator's audit authority under section 221(d).

(6) Notice of initial determination.--

(A) In general.--

(i) Notice to individual.--Not later than 60 days after receiving a response under paragraph (5), the Administrator shall send the person a notice of initial determination identifying the tier and subtier, if any, into which the person falls and the annual payment obligation, if any, to the Fund, which determination shall be based on the information received from the person under this subsection and any other pertinent information available to the Administrator and identified to the defendant participant.

(ii) Public notice.--Not later than 7 days after sending the notification of initial determination to defendant participants, the Administrator shall publish in the Federal Register a notice listing the defendant participants that have been sent such notification, and the initial determination identifying the tier and subtier assignment and annual payment obligation of each identified participant.

(B) No response; incomplete response.--If no response in accordance with paragraph (5) is received from a defendant participant, or if the response is incomplete, the initial determination shall be based on the best information available to the Administrator.

(C) Payments.--Within 30 days of receiving a notice of initial determination requiring payment, the defendant participant shall pay the Administrator the amount required by the notice, after deducting any previous payment made by the participant under this subsection. If the amount that the defendant participant is required to pay is less than any previous payment made by the participant under this subsection, the Administrator shall credit any excess payment against the future payment obligations of that defendant participant. The pendency of a petition for rehearing under paragraph (10) shall not stay the obligation of the participant to make the payment specified in the Administrator's notice.

(7) Exemptions for information required.--

(A) Prior asbestos expenditures.--In lieu of submitting information related to prior asbestos expenditures as may be required for purposes of this subtitle, a nondebtor defendant participant may consent to be assigned to Tier II.

(B) Revenues.--In lieu of submitting information related to revenues as may be required for purposes of this subtitle, a nondebtor defendant participant may consent to be assigned to Subtier 1 of the defendant participant's applicable tier.

(8) New information.--

(A) Existing participant.--The Administrator shall adopt procedures for requiring additional payment, or refunding amounts already paid, based on new information received.

(B) Additional participant.--If the Administrator, at any time, receives information that an additional person may qualify as a defendant participant, the Administrator shall require such person to submit information necessary to determine whether that person is required to make payments, and in what amount, under this subtitle and shall make any determination or take any other act consistent with this Act based on such information or any other information available to the Administrator with respect to such person.

(9) Subpoenas.--The Administrator may request the Attorney General to subpoena persons to compel testimony, records, and other information relevant to its responsibilities under this section. The Attorney General may enforce such subpoena in appropriate proceedings in the United States district court for the district in which the person to whom the subpoena was addressed resides, was served, or transacts business.

(10) Rehearing.--A defendant participant has a right to obtain rehearing of the Administrator's determination under this subsection of the applicable tier or subtier of the Administrator's determination under subsection (d) of a financial hardship or inequity adjustment, and of the Administrator's determination under subsection (m) of a distributor's adjustment, if the request for rehearing is filed within 30 days after the defendant participant's receipt of notice from the Administrator of the determination. A defendant participant may not file an action under section 303 unless the defendant participant requests a rehearing under this paragraph. The Administrator shall publish a notice in the Federal Register of any change in a defendant participant's tier or subtier assignment or payment obligation as a result of a rehearing.

(j) Defendant Inequity Adjustment Account.--

(1) In general.--To the extent the total payments by defendant participants in any given year exceed the minimum aggregate annual payments required under subsection (h), excess monies up to a maximum of $200,000,000 in any such year shall be placed in a defendant inequity adjustment account established within the Fund by the Administrator.

(2) Use of account monies.--Monies from the defendant inequity adjustment account shall be preserved and administered like the remainder of the Fund, but shall be reserved and may be used only--

(A) to make up for any relief granted to a defendant participant for demonstrated inequity under subsection (d) or to reimburse any defendant participant granted such relief after its payment of the amount otherwise due; and

(B) if the condition set forth in subsection (a)(2) is met, for any purpose that the Fund may serve under this Act.

(3) Carryover of unused funds.--To the extent the Administrator does not, in any given year, use all of the funds allocated to the account under paragraph (1) for adjustments granted under subsection (d), remaining funds in the account shall be carried forward for use by the Administrator for adjustments in subsequent years.

(k) Defendant Guaranteed Payment Account.--

(1) In general.--Subject to subsections (h) and (j), if there are excess monies paid by defendant participants in any given year, including any bankruptcy trust credits that may be due under section 222(d), such monies--

(A) at the discretion of the Administrator, may be used to provide additional adjustments under subsection (d), up to a maximum aggregate of $50,000,000 in such year; and

(B) to the extent not used under subparagraph (A), shall be placed in a defendant guaranteed payment account established within the Fund by the Administrator.

(2) Use of account monies.--Monies from the defendant guaranteed payment account shall be preserved and administered like the remainder of the Fund, but shall be reserved and may be used only--

(A) to ensure the minimum aggregate annual payment required under subsection (h), after applicable reductions or adjustments have been taken according to subsections (d) and

(m) is reached each year; and

(B) if the condition set forth in subsection (a)(2) is met, for any purpose that the Fund may serve under this Act.

(l) Guaranteed Payment Surcharge.--

(1) In general.--To the extent there are insufficient monies in the defendant guaranteed payment account established in subsection (k) to attain the minimum aggregate annual payment required under subsection (h) in any given year, the Administrator shall, unless the Administrator implements a funding holiday under section 205(b), impose on each defendant participant a surcharge as necessary to raise the balance required to attain the minimum aggregate annual payment required under subsection (h) as provided in this subsection. Any such surcharge shall be imposed on a pro rata basis, in accordance with each defendant participant's relative annual liability under sections 202 and 203 (as modified by subsections (b), (d), (f), (g), and (m) of this section).

(2) Limitation.--

(A) Definition.--In this paragraph, the term ``economically distressed industry'' means an industry, defined by a primary 5-digit NAICS code, wherein 2 or more defendant participants are in Subtier 1 of Tier II under sections 202 and 203, and at least \2/3\ of such Tier II defendant participants suffered net operating losses in their United States manufacturing business in 2005.

(B) In general.--In no case shall the Administrator--

(i) impose a surcharge under this subsection on any defendant participant included in Subtier 3 of Tier V or VI as described under section 203; or

(ii) notwithstanding paragraph (1), impose in any year a surcharge under this subsection on any defendant participant in an economically distressed industry in excess of 15 percent of the amount set forth for Subtier 1 of Tier II defendant participants under section 203(c)(2)(A).

(C) Reallocation.--Any amount not imposed under subparagraph (B) shall be reallocated on a pro rata basis, in accordance with each defendant participant's (other than a defendant participant described under subparagraph (B) relative annual liability under sections 202 and 203 (as modified by subsections (b), (d), (f), and (g) of this section).

(3) Certification.--

(A) In general.--Before imposing a guaranteed payment surcharge under this subsection, the Administrator shall certify that he or she has used all reasonable efforts to collect mandatory payments for all defendant participants, including by using the authority in subsection (i)(9) of this section and section 223.

(B) Notice and comment.--Before making a final certification under subparagraph (C), the Administrator shall publish a notice in the Federal Register of a proposed certification and provide in such notice for a public comment period of 30 days.

(i) In general.--The Administrator shall publish a notice of the final certification in the Federal Register after consideration of all comments submitted under subparagraph (B).

(ii) Written notice.--Not later than 30 days after publishing any final certification under clause (i), the Administrator shall provide each defendant participant with written notice of that defendant participant's payment, including the amount of any surcharge.

(m) Adjustments for Distributors.--

(1) Definition.--In this subsection, the term

``distributor'' means a person--

(A) whose prior asbestos expenditures arise exclusively from the sale of products manufactured by others;

(B) who did not prior to December 31, 2002, sell raw asbestos or a product containing more than 95 percent asbestos by weight;

(i) the manufacture, installation, repair, reconditioning, maintaining, servicing, constructing, or remanufacturing of any product;

(ii) the control of the design, specification, or manufacture of any product; or

(iii) the sale or resale of any product under, as part of, or under the auspices of, its own brand, trademark, or service mark; and

(D) who is not subject to assignment under section 202 to Tier I, II, III or VII.

(2) Tier reassignment for distributors.--

(A) In general.--Notwithstanding section 202, the Administrator shall assign a distributor to a Tier for purposes of this title under the procedures set forth in this paragraph.

(B) Designation.--After a final determination by the Administrator under section 204(i), any person who is, or any affiliated group in which every member is, a distributor may apply to the Administrator for adjustment of its Tier assignment under this subsection. Such application shall be prepared in accordance with such procedures as the Administrator shall promulgate by rule. Once the Administrator designates a person or affiliated group as a distributor under this subsection, such designation and the adjustment of tier assignment under this subsection are final.

(C) Payments.--Any person or affiliated group that seeks adjustment of its Tier assignment under this subsection shall pay all amounts required of it under this title until a final determination by the Administrator is made under this subsection. Such payments may not be stayed pending any appeal. The Administrator shall grant any person or affiliated group a refund or credit of any payments made if such adjustment results in a lower payment obligation.

(D) Adjustment.--Subject to paragraph (3), any person or affiliated group that the Administrator has designated as a distributor under this subsection shall be given an adjustment of Tier assignment as follows:

(i) A distributor that but for this subsection would be assigned to Tier IV shall be deemed assigned to Tier V.

(ii) A distributor that but for this subsection would be assigned to Tier V shall be deemed assigned to Tier VI.

(iii) A distributor that but for this subsection would be assigned to Tier VI shall be deemed assigned to no Tier and shall have no obligation to make any payment to the Fund under this Act.

(E) Exclusive to inequity adjustment.--Any person or affiliated group designated by the Administrator as a distributor under this subsection shall not be eligible for an inequity adjustment under subsection 204(d).

(3) Limitation on adjustments.--The aggregate total of distributor adjustments under this subsection in effect in any given year shall not exceed $50,000,000. If the aggregate total of distributors adjustments under this subsection would otherwise exceed $50,000,000, then each distributor's adjustment shall be reduced pro rata until the aggregate of all adjustments equals $50,000,000.

(4) Rehearing.--A defendant participant has a right to obtain a rehearing of the Administrator's determination on an adjustment under this subsection under the procedures prescribed in subsection (i)(10).

SEC. 205. STEPDOWNS AND FUNDING HOLIDAYS.

(a) Stepdowns.--

(1) In general.--

(A) Reduction.--Subject to paragraph (2), the minimum aggregate annual funding obligation under section 204(h) shall be reduced by 10 percent of the initial minimum aggregate funding obligation at the end of the 10th, 15th, 20th, and 25th years after the date of enactment of this Act. Except as provided under subparagraph (B), the reductions under this paragraph shall be applied on an equal pro rata basis to the funding obligations of all defendant participants.

(B) Calculation.--The reductions under this subsection shall not apply to defendant participants in Tier I, Subtiers 2 and 3, and class action trusts. For defendant participants whose payment obligation has been limited under section 204(a)(2) or who have received a financial hardship adjustment under section 204(d)(2), aggregate potential reductions under this subsection shall be calculated on the basis of the defendant participant's tier and subtier without regard to such limitation or adjustment. If the aggregate potential reduction under this subsection exceeds the reduction in the defendant participant's payment obligation due to the limitation under section 204(a)(2) and the financial hardship adjustment under section 204(d)(2), then the defendant participant's payment obligation shall be further reduced by the difference between the potential reduction provided under this subsection and the reductions that the defendant participant has already received due to the application of the limitation provided in section 204(a)(2) and the financial hardship adjustment provided under section 204(d)(2). If the reduction in the defendant participant's payment obligation due to the limitation provided in section 204(a)(2) and any financial hardship adjustment provided under section 204(d)(2) exceeds the amount of the reduction provided in this subsection, then the defendant participant's payment obligation shall not be further reduced under this paragraph.

(2) Limitation.--The Administrator shall suspend, cancel, reduce, or delay any reduction under paragraph (1) if at any time the Administrator finds, in accordance with subsection

(c), that such action is necessary and appropriate to ensure that the assets of the Fund and expected future payments remain sufficient to satisfy the Fund's anticipated obligations.

(b) Funding Holidays.--

(1) In general.--If the Administrator determines, at any time after 10 years following the date of enactment of this Act, that the assets of the Fund at the time of such determination and expected future payments, taking into consideration any reductions under subsection (a), are sufficient to satisfy the Fund's anticipated obligations without the need for all, or any portion of, that year's payment otherwise required under this subtitle, the Administrator shall reduce or waive all or any part of the payments required from defendant participants for that year.

(2) Annual review.--The Administrator shall undertake the review required by this subsection and make the necessary determination under paragraph (1) every year.

(3) Limitations on funding holidays.--

(A) In general.--Except as provided under subparagraph (B), any reduction or waiver of the defendant participants' funding obligations shall--

(i) be made only to the extent the Administrator determines that the Fund will still be able to satisfy all of its anticipated obligations; and

(ii) be applied on an equal pro rata basis to the funding obligations of all defendant participants, except with respect to defendant participants in Subtiers 2 and 3 of Tier I and class action trusts, for that year.

(B) Calculation.--The reductions or waivers provided under this subsection shall not apply to defendant participants in Tier I, Subtiers 2 and 3, and class action trusts. For defendant participants whose payment obligation has been limited under section 204(a)(2) or who have received a financial hardship adjustment under section 204(d)(2), aggregate potential reductions under this subsection shall be calculated on the basis of the defendant participant's tier and subtier without regard to such limitation or adjustment. If the aggregate potential reductions or waivers under this subsection exceed the reduction in the defendant participant's payment obligation due to the limitation under section 204(a)(2) and the financial hardship adjustment under section 204(d)(2), then the defendant participant's payment obligation shall be further reduced by the difference between the potential reductions or waivers provided under this subsection and the reductions that the defendant participant has already received due to the application of the limitation provided in section 204(a)(2) and the financial hardship adjustment provided under section 204(d)(2). If the reduction in the defendant participant's payment obligation due to the limitation provided in section 204(a)(2) and any of the financial hardship adjustment provided under section 204(d)(2) exceeds the amount of the reductions or waivers provided in this subsection, then the defendant participant's payment obligation shall not be further reduced under this paragraph.

(4) New information.--If at any time the Administrator determines that a reduction or waiver under this section may cause the assets of the Fund and expected future payments to decrease to a level at which the Fund may not be able to satisfy all of its anticipated obligations, the Administrator shall revoke all or any part of such reduction or waiver to the extent necessary to ensure that the Fund's obligations are met. Such revocations shall be applied on an equal pro rata basis to the funding obligations of all defendant participants, except defendant participants in Subtiers 2 and 3 of Tier I and class action trusts, for that year.

(1) In general.--Before suspending, canceling, reducing, or delaying any reduction under subsection (a) or granting or revoking a reduction or waiver under subsection (b), the Administrator shall certify that the requirements of this section are satisfied.

(2) Notice and comment.--Before making a final certification under this subsection, the Administrator shall publish a notice in the Federal Register of a proposed certification and a statement of the basis therefor and provide in such notice for a public comment period of 30 days.

(3) Final certification.--

(A) In general.--The Administrator shall publish a notice of the final certification in the Federal Register after consideration of all comments submitted under paragraph (2).

(B) Written notice.--Not later than 30 days after publishing any final certification under subparagraph (A), the Administrator shall provide each defendant participant with written notice of that defendant's funding obligation for that year. SEC. 206. ACCOUNTING TREATMENT.

Defendant participants payment obligations to the Fund shall be subject to discounting under the applicable accounting guidelines for generally accepted accounting purposes and statutory accounting purposes for each defendant participant. This section shall in no way reduce the amount of monetary payments to the Fund by defendant participants as required under section 202(a)(2).

Subtitle B--Asbestos Insurers Commission

SEC. 210. DEFINITION.

In this subtitle, the term ``captive insurance company'' means a company--

(1) whose entire beneficial interest is owned on the date of enactment of this Act, directly or indirectly, by a defendant participant or by the ultimate parent or the affiliated group of a defendant participant;

(2) whose primary commercial business during the period from calendar years 1940 through 1986 was to provide insurance to its ultimate parent or affiliated group, or any portion of the affiliated group or a combination thereof; and

(3) that was incorporated or operating no later than December 31, 2003.

SEC. 211. ESTABLISHMENT OF ASBESTOS INSURERS COMMISSION.

(a) Establishment.--There is established the Asbestos Insurers Commission (referred to in this subtitle as the

``Commission'') to carry out the duties described in section 212.

(b) Membership.--

(1) Appointment.--The Commission shall be composed of 5 members who shall be appointed by the President, by and with the advice and consent of the Senate.

(2) Qualifications.--

(A) Expertise.--Members of the Commission shall have sufficient expertise to fulfill their responsibilities under this subtitle.

(B) Conflict of interest.--

(i) In general.--No member of the Commission appointed under paragraph (1) may be an employee or immediate family member of an employee of an insurer participant. No member of the Commission shall be a shareholder of any insurer participant. No member of the Commission shall be a former officer or director, or a former employee or former shareholder of any insurer participant who was such an employee, shareholder, officer, or director at any time during the 2-year period ending on the date of the appointment, unless that is fully disclosed before consideration in the Senate of the nomination for appointment to the Commission.

(ii) Definition.--In clause (i), the term ``shareholder'' shall not include a broadly based mutual fund that includes the stocks of insurer participants as a portion of its overall holdings.

(C) Federal employment.--A member of the Commission may not be an officer or employee of the Federal Government, except by reason of membership on the Commission.

(3) Period of appointment.--Members shall be appointed for the life of the Commission.

(4) Vacancies.--Any vacancy in the Commission shall be filled in the same manner as the original appointment.

(5) Chairman.--The President shall select a Chairman from among the members of the Commission.

(1) Initial meeting.--Not later than 30 days after the date on which all members of the Commission have been appointed, the Commission shall hold its first meeting.

(2) Subsequent meetings.--The Commission shall meet at the call of the Chairman, as necessary to accomplish the duties under section 212.

(3) Quorum.--No business may be conducted or hearings held without the participation of a majority of the members of the Commission.

SEC. 212. DUTIES OF ASBESTOS INSURERS COMMISSION.

(a) Determination of Insurer Payment Obligations.--

(1) In general.--

(A) Definitions.--For the purposes of this Act, the terms

``insurer'' and ``insurer participant'' shall, unless stated otherwise, include direct insurers and reinsurers, as well as any run-off entity established, in whole or in part, to review and pay asbestos claims.

(B) Procedures for determining insurer payments.--

(i) Amount of payments.--The Commission shall determine the amount that each insurer participant shall be required to pay into the Fund under the procedures described in this section. The Commission shall make the determination by first promulgating a rule establishing a methodology for allocation of payments among insurer participants and then applying such methodology to determine the individual payment for each insurer participant. The methodology shall be uniform for all insurer participants.

(ii) Reserve study required.--The Commission shall conduct a reserve study (the ``Reserve Study'') to determine the appropriate reserve allocation of each insurer participant and may request information from each insurer participant, defendant participant, the Securities and Exchange Commission or any State regulatory agency for the purpose of conducting the Reserve Study. The Reserve Study shall calculate each insurer's exposure to current and future asbestos claims in the asbestos litigation environment before the date of enactment of this Act. Such calculation shall be derived from the following elements:

(I) An estimation of each defendant participant's current and future exposure to expense and loss costs in the asbestos litigation environment before the date of enactment of this Act (``Ultimate Expense and Loss'').

(II) The application of a uniform set of assumptions regarding the application of insurance and reinsurance to Ultimate Expense and Loss and an analysis of each insurer participant's unresolved or unexhausted insurance or reinsurance coverage applicable to such Ultimate Expense and Loss for each defendant participant;

(III) A projection of each insurer's exposure to claims by entities that had not yet become defendants as of the date of enactment of this Act, but might reasonably have been anticipated to become defendants in the future if the asbestos litigation environment before the date of enactment of this Act had continued. Not later than 60 days after the initial meeting of the Commission, the Commission shall commence a rulemaking proceeding under section 213(a) to propose and adopt a methodology for conducting the Reserve Study and allocating payments among insurer participants on the basis of the Reserve Study. Such methodology shall be consistent with this subparagraph.

(iii) Permitted extrapolation of ultimate expense and loss for peripheral defendant participants.--The Commission may establish an appropriate methodology to extrapolate Ultimate Expense and Loss for Tier VI defendant participants for the purposes of the Reserve Study. Considerations for such methodology shall include the nature of that Tier VI defendant participant's asbestos liability, the number of pending and historic asbestos claims against the Tier VI defendant participant, and the jurisdictions in which such Tier VI defendant participant had been sued for asbestos liability.

(iv) Rule of construction.--Nothing in this subparagraph shall affect the initial payment requirement in section 212(e)(1).

(C) Scope.--Every insurer, reinsurer, and runoff entity with asbestos-related obligations in the United States shall be subject to the Commission's and Administrator's authority under this Act, including allocation determinations, and shall be required to fulfill its payment obligation without regard as to whether it is licensed in the United States. Every insurer participant not licensed or domiciled in the United States shall, upon the first payment to the Fund, submit a written consent to the Commission's and Administrator's authority under this Act, and to the jurisdiction of the courts of the United States for purposes of enforcing this Act, in a form determined by the Administrator. Any insurer participant refusing to provide a written consent shall be subject to fines and penalties as provided in section 223.

(D) Issuers of finite risk policies.--

(i) In general.--The issuer of any policy of retrospective reinsurance purchased by an insurer participant or its affiliate after 1990 that provides for a risk or loss transfer to insure for asbestos losses and other losses (both known and unknown), including those policies commonly referred to as ``finite risk'', ``aggregate stop loss'',

``aggregate excess of loss'', or ``loss portfolio transfer'' policies, shall be obligated to make payments required under this Act directly to the Fund on behalf of the insurer participant who is the beneficiary of such policy, subject to the underlying retention and the limits of liability applicable to such policy.

(ii) Payments.--Payments to the Fund required under this Act shall be treated as loss payments for asbestos bodily injury (as if such payments were incurred as liabilities imposed in the tort system) and shall not be subject to exclusion under policies described under clause (i) as a liability with respect to tax or assessment. Within 90 days after the scheduled date to make an annual payment to the Fund, the insurer participant shall, at its discretion, direct the reinsurer issuing such policy to pay all or a portion of the annual payment directly to the Fund up to the full applicable limits of liability under the policy. The reinsurer issuing such policy shall be obligated to make such payments directly to the Fund and shall be subject to the enforcement provisions under section 223. The insurer participant shall remain obligated to make payment to the Fund of that portion of the annual payment not directed to the issuer of such reinsurance policy.

(2) Amount of payments.--

(A) Aggregate payment obligation.--The total payment required of all insurer participants over the life of the Fund shall be equal to $46,025,000,000, less any bankruptcy trust credits under section 222(d).

(B) Accounting standards.--In determining the payment obligations of participants that are not licensed or domiciled in the United States or that are runoff entities, the Commission shall use accounting standards required for United States licensed direct insurers.

(C) Captive insurance companies.--No payment to the Fund shall be required from a captive insurance company, unless and only to the extent a captive insurance company, on the date of enactment of this Act, insures the asbestos liability, directly or indirectly, of (and that arises out of the manufacture, sale, distribution or installation of materials or products by, or other conduct of) a person or persons other than and unaffiliated with its ultimate parent or affiliated group or pool in which the ultimate parent participates or participated, or unaffiliated with a person that was its ultimate parent or a member of its affiliated group or pool at the time the relevant insurance or reinsurance was issued by the captive insurance company.

(D) Several liability.--Unless otherwise provided under this Act, each insurer participant's obligation to make payments to the Fund is several. Unless otherwise provided under this Act, there is no joint liability, and the future insolvency by any insurer participant shall not affect the payment required of any other insurer participant.

(3) Payment of criteria.--

(A) Inclusion in insurer participant category.--

(i) In general.--Insurers that have paid, or been assessed by a legal judgment or settlement, at least $1,000,000 in defense and indemnity costs before the date of enactment of this Act in response to claims for compensation for asbestos injuries arising from a policy of liability insurance or contract of liability reinsurance or retrocessional reinsurance shall be insurer participants in the Fund. Other insurers shall be exempt from mandatory payments.

(ii) Inapplicability of section 202.--Since insurers may be subject in certain jurisdictions to direct action suits, and it is not the intent of this Act to impose upon an insurer, due to its operation as an insurer, payment obligations to the Fund in situations where the insurer is the subject of a direct action, no insurer subject to mandatory payments under this section shall also be liable for payments to the Fund as a defendant participant under section 202.

(B) Insurer participant allocation methodology.--

(i) In general.--The Commission shall establish the payment obligations of individual insurer participants to reflect, on an equitable basis, the relative tort system liability of the participating insurers in the absence of this Act, considering and weighting, as appropriate (but exclusive of workers' compensation), such factors as--

(I) historic premium for lines of insurance associated with asbestos exposure over relevant periods of time;

(II) recent loss experience for asbestos liability;

(III) amounts reserved for asbestos liability;

(IV) the likely cost to each insurer participant of its future liabilities under applicable insurance policies; and

(V) any other factor the Commission may determine is relevant and appropriate.

(ii) Determination of reserves.--The Commission may establish procedures and standards for determination of the asbestos reserves of insurer participants. The reserves of a United States licensed reinsurer that is wholly owned by, or under common control of, a United States licensed direct insurer shall be included as part of the direct insurer's reserves when the reinsurer's financial results are included as part of the direct insurer's United States operations, as reflected in footnote 33 of its filings with the National Association of Insurance Commissioners or in published financial statements prepared in accordance with generally accepted accounting principles.

(C) Payment schedule.--The aggregate annual amount of payments by insurer participants over the life of the Fund shall be as follows:

(i) For years 1 and 2, $2,700,000,000 annually.

(ii) For years 3 through 5, $5,075,000,000 annually.

(iii) For years 6 through 27, $1,147,000,000 annually.

(iv) For year 28, $166,000,000.

(D) Certain runoff entities.--A runoff entity shall include any direct insurer or reinsurer whose asbestos liability reserves have been transferred, directly or indirectly, to the runoff entity and on whose behalf the runoff entity handles or adjusts and, where appropriate, pays asbestos claims.

(E) Financial hardship and exceptional circumstance adjustments.--

(i) In general.--Under the procedures established in subsection (b), an insurer participant may seek adjustment of the amount of its payments based on exceptional circumstances or severe financial hardship.

(ii) Financial adjustments.--An insurer participant may qualify for an adjustment based on severe financial hardship by demonstrating that payment of the amounts required by the Commission's methodology would jeopardize the solvency of such participant.

(iii) Exceptional circumstance adjustment.--An insurer participant may qualify for an adjustment based on exceptional circumstances by demonstrating--

(I) that the amount of its payments under the Commission's allocation methodology is exceptionally inequitable when measured against the amount of the likely cost to the participant of its future liability in the tort system in the absence of the Fund;

(II) an offset credit as described in subparagraphs (A) and

(III) other exceptional circumstances.

The Commission may determine whether to grant an adjustment and the size of any such adjustment, but except as provided under paragraph (1)(B), subsection (f)(3), and section 405(f), any such adjustment shall not affect the aggregate payment obligations of insurer participants specified in paragraph (2)(A) and subparagraph (C) of this paragraph.

(iv) Time period of adjustment.--Except for adjustments for offset credits, adjustments granted under this subsection shall have a term not to exceed 3 years. An insurer participant may renew its adjustment by demonstrating to the Administrator that it remains justified.

(F) Funding holidays.--

(i) In general.--If the Administrator determines, at any time after 10 years following the date of enactment of this Act, that the assets of the Fund at the time of such determination and expected future payments are sufficient to satisfy the Fund's anticipated obligations without the need for all, or any portion of, that year's payment otherwise required under this subtitle, the Administrator shall reduce or waive all or any part of the payments required from insurer participants for that year.

(ii) Annual review.--The Administrator shall undertake the review required by this subsection and make the necessary determination under clause (i) every year.

(iii) Limitations of funding holidays.--Any reduction or waiver of the insurer participants' funding obligations shall--

(I) be made only to the extent the Administrator determines that the Fund will still be able to satisfy all of its anticipated obligations; and

(II) be applied on an equal pro rata basis to the funding obligations of all insurer participants for that year.

(iv) New information.--If at any time the Administrator determines that a reduction or waiver under this section may cause the assets of the Fund and expected future payments to decrease to a level at which the Fund may not be able to satisfy all of its anticipated obligations, the Administrator shall revoke all or any part of such reduction or waiver to the extent necessary to ensure that the Fund's obligations are met. Such revocations shall be applied on an equal pro rata basis to the funding obligations of all insurer participants for that year.

(b) Procedure for Notifying Insurer Participants of Individual Payment Obligations.--

(1) Notice to participants.--Not later than 30 days after promulgation of the final rule establishing an allocation methodology under subsection (a)(1), the Commission shall--

(A) directly notify all reasonably identifiable insurer participants of the requirement to submit information necessary to calculate the amount of any required payment to the Fund under the allocation methodology; and

(B) publish in the Federal Register a notice--

(i) requiring any person who may be an insurer participant

(as determined by criteria outlined in the notice) to submit such information; and

(ii) that includes a list of all insurer participants notified by the Commission under subparagraph (A), and provides for 30 days for the submission of comments or information regarding the completeness and accuracy of the list of identified insurer participants.

(2) Response required by individual insurer participants.--

(A) In general.--Any person who receives notice under paragraph (1)(A), and any other person meeting the criteria specified in the notice published under paragraph (1)(B), shall respond by providing the Commission with all the information requested in the notice under a schedule or by a date established by the Commission.

(3) Notice to insurer participants of initial payment determination.--

(A) In general.--

(i) Notice to insurers.--Not later than 120 days after receipt of the information required by paragraph (2), the Commission shall send each insurer participant a notice of initial determination requiring payments to the Fund, which shall be based on the information received from the participant in response to the Commission's request for information. An insurer participant's payments shall be payable over the schedule established in subsection

(a)(3)(C), in annual amounts proportionate to the aggregate annual amount of payments for all insurer participants for the applicable year.

(ii) Public notice.--Not later than 7 days after sending the notification of initial determination to insurer participants, the Commission shall publish in the Federal Register a notice listing the insurer participants that have been sent such notification, and the initial determination on the payment obligation of each identified participant.

(B) No response; incomplete response.--If no response is received from an insurer participant, or if the response is incomplete, the initial determination requiring a payment from the insurer participant shall be based on the best information available to the Commission.

(4) Commission review, revision, and finalization of initial payment determinations.--

(A) Comments from insurer participants.--Not later than 30 days after receiving a notice of initial determination from the Commission, an insurer participant may provide the Commission with additional information to support adjustments to the required payments to reflect severe financial hardship or exceptional circumstances, including the provision of an offset credit for an insurer participant for the amount of any asbestos-related payments it made or was legally obligated to make, including payments released from an escrow, as the result of a bankruptcy judicially confirmed after May 22, 2003, but before the date of enactment of this Act.

(B) Additional participants.--If, before the final determination of the Commission, the Commission receives information that an additional person may qualify as an insurer participant, the Commission shall require such person to submit information necessary to determine whether payments from that person should be required, in accordance with the requirements of this subsection.

(C) Revision procedures.--The Commission shall adopt procedures for revising initial payments based on information received under subparagraphs (A) and (B), including a provision requiring an offset credit for an insurer participant for the amount of any asbestos-related payments it made or was legally obligated to make, including payments released from an escrow, as the result of a bankruptcy confirmed after May 22, 2003, but before the date of enactment of this Act.

(5) Examinations and subpoenas.--

(A) Examinations.--The Commission may conduct examinations of the books and records of insurer participants to determine the completeness and accuracy of information submitted, or required to be submitted, to the Commission for purposes of determining participant payments.

(B) Subpoenas.--The Commission may request the Attorney General to subpoena persons to compel testimony, records, and other information relevant to its responsibilities under this section. The Attorney General may enforce such subpoena in appropriate proceedings in the United States district court for the district in which the person to whom the subpoena was addressed resides, was served, or transacts business.

(6) Escrow payments.--Without regard to an insurer participant's payment obligation under this section, any escrow or similar account established before the date of enactment of this Act by an insurer participant in connection with an asbestos trust fund that has not been judicially confirmed by final order by the date of enactment of this Act shall be the property of the insurer participant and returned to that insurer participant.

(7) Notice to insurer participants of final payment determinations.--Not later than 60 days after the notice of initial determination is sent to the insurer participants, the Commission shall send each insurer participant a notice of final determination.

(1) In general.--Not later than 30 days after the Commission proposes its rule establishing an allocation methodology under subsection (a)(1), direct insurer participants licensed or domiciled in the United States, other direct insurer participants, reinsurer participants licensed or domiciled in the United States, or other reinsurer participants, may submit an allocation agreement, approved by all of the participants in the applicable group, to the Commission.

(2) Allocation agreement.--To the extent the participants in any such applicable group voluntarily agree upon an allocation arrangement, any such allocation agreement shall only govern the allocation of payments within that group and shall not determine the aggregate amount due from that group.

(3) Certification.--The Commission shall determine whether an allocation agreement submitted under subparagraph (A) meets the requirements of this subtitle and, if so, shall certify the agreement as establishing the allocation methodology governing the individual payment obligations of the participants who are parties to the agreement. The authority of the Commission under this subtitle shall, with respect to participants who are parties to a certified allocation agreement, terminate on the day after the Commission certifies such agreement. Under subsection (f), the Administrator shall assume responsibility, if necessary, for calculating the individual payment obligations of participants who are parties to the certified agreement.

(d) Commission Report.--

(1) Recipients.--Until the work of the Commission has been completed and the Commission terminated, the Commission shall submit an annual report, containing the information described under paragraph (2), to--

(A) the Committee on the Judiciary of the Senate;

(B) the Committee on the Judiciary of the House of Representatives; and

(2) Contents.--The report under paragraph (1) shall state the amount that each insurer participant is required to pay to the Fund, including the payment schedule for such payments.

(e) Interim Payments.--

(1) Amount of interim payment.--Within 90 days after the date of enactment of this Act, insurer participants shall make an aggregate payment to the Fund not to exceed 50 percent of the aggregate funding obligation specified under subsection (a)(3)(C) for year 1.

(2) Reserve information.--Within 30 days after the date of enactment of this Act, each insurer participant shall submit to the Administrator a certified statement of its net held reserves for asbestos liabilities as of December 31, 2004.

(3) Allocation of interim payment.--The Administrator shall allocate the interim payment among the individual insurer participants on an equitable basis using the net held asbestos reserve information provided by insurer participants under subsection (a)(3)(B). Within 60 days after the date of enactment of this Act, the Administrator shall publish in the Federal Register the name of each insurer participant, and the amount of the insurer participant's allocated share of the interim payment. The use of net held asbestos reserves as the basis to determine an interim allocation shall not be binding on the Administrator in the determination of an appropriate final allocation methodology under this section. All payments required under this paragraph shall be credited against the participant's ultimate payment obligation to the Fund established by the Commission. If an interim payment exceeds the ultimate payment, the Fund shall pay interest on the amount of the overpayment at a rate determined by the Administrator. If the ultimate payment exceeds the interim payment, the participant shall pay interest on the amount of the underpayment at the same rate. Any participant may seek an exemption from or reduction in any payment required under this subsection under the financial hardship and exceptional circumstance standards established under subsection

(a)(3)(E).

(4) Appeal of interim payment decisions.--A decision by the Administrator to establish an interim payment obligation shall be considered final agency action and reviewable under section 303, except that the reviewing court may not stay an interim payment during the pendency of the appeal.

(f) Transfer of Authority From the Commission to the Administrator.--

(1) In general.--Upon termination of the Commission under section 215, the Administrator shall assume all the responsibilities and authority of the Commission, except that the Administrator shall not have the power to modify the allocation methodology established by the Commission or by certified agreement or to promulgate a rule establishing any such methodology.

(2) Financial hardship and exceptional circumstance adjustments.--Upon termination of the Commission under section 215, the Administrator shall have the authority, upon application by any insurer participant, to make adjustments to annual payments upon the same grounds as provided in subsection (a)(3)(D). Adjustments granted under this subsection shall have a term not to exceed 3 years. An insurer participant may renew its adjustment by demonstrating that it remains justified. Upon the grant of any adjustment, the Administrator shall increase the payments, consistent with subsection (a)(1)(B), required of all other insurer participants so that there is no reduction in the aggregate payment required of all insurer participants for the applicable years. The increase in an insurer participant's required payment shall be in proportion to such participant's share of the aggregate payment obligation of all insurer participants.

(3) Credits for shortfall assessments.--If insurer participants are required during the first 5 years of the life of the Fund to make up any shortfall in required insurer payments under subsection (a)(1)(B), then, beginning in year 6, the Administrator shall grant each insurer participant a credit against its annual required payments during the applicable years that in the aggregate equal the amount of shortfall assessments paid by such insurer participant during the first 5 years of the life of the Fund. The credit shall be prorated over the same number of years as the number of years during which the insurer participant paid a shortfall assessment. Insurer participants which did not pay all required payments to the Fund during the first 5 years of the life of the Fund shall not be eligible for a credit. The Administrator shall not grant a credit for shortfall assessments imposed under section 405(f).

(4) Financial security requirements.--Whenever an insurer participant's A.M. Best's claims payment rating or Standard and Poor's financial strength rating falls below A-, and until such time as either the insurer participant's A.M. Best's Rating or Standard and Poor's rating is equal to or greater than A-, the Administrator shall have the authority to require that the participating insurer either--

(A) pay the present value of its remaining Fund payments at a discount rate determined by the Administrator; or

(B) provide an evergreen letter of credit or financial guarantee for future payments issued by an institution with an A.M. Best's claims payment rating or Standard & Poor's financial strength rating of at least A+.

(g) Accounting Treatment.--Insurer participants' payment obligations to the Fund shall be subject to discounting under the applicable accounting guidelines for generally accepted accounting purposes and statutory accounting purposes for each insurer participant. This subsection shall in no way reduce the amount of monetary payments to the Fund by insurer participants as required under subsection (a).

(h) Judicial Review.--The Commission's rule establishing an allocation methodology, its final determinations of payment obligations and other final action shall be judicially reviewable as provided in title III.

SEC. 213. POWERS OF ASBESTOS INSURERS COMMISSION.

(a) Rulemaking.--The Commission shall promulgate such rules and regulations as necessary to implement its authority under this Act, including regulations governing an allocation methodology. Such rules and regulations shall be promulgated after providing interested parties with the opportunity for notice and comment.

(b) Hearings.--The Commission may hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence as the Commission considers advisable to carry out this Act. The Commission shall also hold a hearing on any proposed regulation establishing an allocation methodology, before the Commission's adoption of a final regulation.

(c) Information From Federal and State Agencies.--The Commission may secure directly from any Federal or State department or agency such information as the Commission considers necessary to carry out this Act. Upon request of the Chairman of the Commission, the head of such department or agency shall furnish such information to the Commission.

(d) Postal Services.--The Commission may use the United States mails in the same manner and under the same conditions as other departments and agencies of the Federal Government.

(e) Gifts.--The Commission may not accept, use, or dispose of gifts or donations of services or property.

(f) Expert Advice.--In carrying out its responsibilities, the Commission may enter into such contracts and agreements as the Commission determines necessary to obtain expert advice and analysis.

SEC. 214. PERSONNEL MATTERS.

(a) Compensation of Members.--Each member of the Commission shall be compensated at a rate equal to the daily equivalent of the annual rate of basic pay prescribed for level IV of the Executive Schedule under section 5315 of title 5, United States Code, for each day (including travel time) during which such member is engaged in the performance of the duties of the Commission.

(b) Travel Expenses.--The members of the Commission shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code, while away from their homes or regular places of business in the performance of services for the Commission.

(1) In general.--The Chairman of the Commission may, without regard to the civil service laws and regulations, appoint and terminate an executive director and such other additional personnel as may be necessary to enable the Commission to perform its duties. The employment of an executive director shall be subject to confirmation by the Commission.

(2) Compensation.--The Chairman of the Commission may fix the compensation of the executive director and other personnel without regard to chapter 51 and subchapter III of chapter 53 of title 5, United States Code, relating to classification of positions and General Schedule pay rates, except that the rate of pay for the executive director and other personnel may not exceed the rate payable for level V of the Executive Schedule under section 5316 of such title.

(d) Detail of Government Employees.--Any Federal Government employee may be detailed to the Commission without reimbursement, and such detail shall be without interruption or loss of civil service status or privilege.

(e) Procurement of Temporary and Intermittent Services.--The Chairman of the Commission may procure temporary and intermittent services under section 3109(b) of title 5, United States Code, at rates for individuals which do not exceed the daily equivalent of the annual rate of basic pay prescribed for level V of the Executive Schedule under section 5316 of such title.

SEC. 215. TERMINATION OF ASBESTOS INSURERS COMMISSION.

The Commission shall terminate 90 days after the last date on which the Commission makes a final determination of contribution under section 212(b) or 90 days after the last appeal of any final action by the Commission is exhausted, whichever occurs later.

SEC. 216. EXPENSES AND COSTS OF COMMISSION.

All expenses of the Commission shall be paid from the Fund.

Subtitle C--Asbestos Injury Claims Resolution Fund

SEC. 221. ESTABLISHMENT OF ASBESTOS INJURY CLAIMS RESOLUTION

FUND.

(a) Establishment.--There is established in the Office of Asbestos Disease Compensation the Asbestos Injury Claims Resolution Fund, which shall be available to pay--

(1) claims for awards for an eligible disease or condition determined under title I;

(2) claims for reimbursement for medical monitoring determined under title I;

(3) principal and interest on borrowings under subsection

(b);

(4) the remaining obligations to the asbestos trust of a debtor and the class action trust under section 405(g)(8); and

(5) administrative expenses to carry out the provisions of this Act.

(b) Borrowing Authority.--

(1) In general.--The Administrator is authorized to borrow from time to time amounts as set forth in this subsection, for purposes of enhancing liquidity available to the Fund for carrying out the obligations of the Fund under this Act. The Administrator may authorize borrowing in such form, over such term, with such necessary disclosure to its lenders as will most efficiently enhance the Fund's liquidity.

(2) Federal financing bank.--In addition to the general authority in paragraph (1), the Administrator may borrow from the Federal Financing Bank in accordance with section 6 of the Federal Financing Bank Act of 1973 (12 U.S.C. 2285), as needed for performance of the Administrator's duties under this Act for the first 5 years.

(3) Borrowing capacity.--The maximum amount that may be borrowed under this subsection at any given time is the amount that, taking into account all payment obligations related to all previous amounts borrowed in accordance with this subsection and all committed obligations of the Fund at the time of borrowing, can be repaid in full (with interest) in a timely fashion from--

(A) the available assets of the Fund as of the time of borrowing; and

(B) all amounts expected to be paid by participants during the subsequent 10 years.

(4) Repayment obligations.--Repayment of monies borrowed by the Administrator under this subsection shall be repaid in full by the Fund contributors and is limited solely to amounts available, present or future, in the Fund.

(1) In general.--Within the Fund, the Administrator shall establish the following accounts:

(A) A Mesothelioma Account, which shall be used solely to make payments to claimants eligible for an award under the criteria of Level IX.

(B) A Lung Cancer Account, which shall be used solely to make payments to claimants eligible for an award under the criteria of Level VIII.

(C) A Severe Asbestosis Account, which shall be used solely to make payments to claimants eligible for an award under the criteria of Level V.

(D) A Moderate Asbestosis Account, which shall be used solely to make payments to claimants eligible for an award under the criteria of Level IV.

(2) Allocation.--The Administrator shall allocate to each of the 4 accounts established under paragraph (1) a portion of payments made to the Fund adequate to compensate all anticipated claimants for each account. Within 60 days after the date of enactment of this Act, and periodically during the life of the Fund, the Administrator shall determine an appropriate amount to allocate to each account after consulting appropriate epidemiological and statistical studies.

(d) Audit Authority.--

(1) In general.--For the purpose of ascertaining the correctness of any information provided or payments made to the Fund, or determining whether a person who has not made a payment to the Fund was required to do so, or determining the liability of any person for a payment to the Fund, or collecting any such liability, or inquiring into any offense connected with the administration or enforcement of this title, the Administrator is authorized--

(A) to examine any books, papers, records, or other data which may be relevant or material to such inquiry;

(B) to summon the person liable for a payment under this title, or officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable or any other person the Administrator may deem proper, to appear before the Administrator at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and

(2) False, fraudulent, or fictitious statements or practices.--If the Administrator determines that materially false, fraudulent, or fictitious statements or practices have been submitted or engaged in by persons submitting information to the Administrator or to the Asbestos Insurers Commission or any other person who provides evidence in support of such submissions for purposes of determining payment obligations under this Act, the Administrator may impose a civil penalty not to exceed $10,000 on any person found to have submitted or engaged in a materially false, fraudulent, or fictitious statement or practice under this Act. The Administrator shall promulgate appropriate regulations to implement this paragraph.

(e) Identity of Certain Defendant Participants; Transparency.--

(1) Submission of information.--Not later than 60 days after the date of enactment of this Act, any person who, acting in good faith, has knowledge that such person or such person's affiliated group has prior asbestos expenditures of

$1,000,000 or greater, shall submit to the Administrator--

(A) either the name of such person, or such person's ultimate parent; and

(B) the likely tier to which such person or affiliated group may be assigned under this Act.

(2) Publication.--Not later than 20 days after the end of the 60-day period referred to in paragraph (1), the Administrator or Interim Administrator, if the Administrator is not yet appointed, shall publish in the Federal Register a list of submissions required by this subsection, including the name of such persons or ultimate parents and the likely tier to which such persons or affiliated groups may be assigned. After publication of such list, any person who, acting in good faith, has knowledge that any other person has prior asbestos expenditures of $1,000,000 or greater may submit to the Administrator or Interim Administrator information on the identity of that person and the person's prior asbestos expenditures.

(f) No Private Right of Action.--Except as provided in sections 203(b)(2)(D)(ii) and 204(f)(3), there shall be no private right of action under any Federal or State law against any participant based on a claim of compliance or noncompliance with this Act or the involvement of any participant in the enactment of this Act.

SEC. 222. MANAGEMENT OF THE FUND.

(a) In General.--Amounts in the Fund shall be held for the exclusive purpose of providing benefits to asbestos claimants and their beneficiaries and to otherwise defray the reasonable expenses of administering the Fund.

(b) Investments.--

(1) In general.--Amounts in the Fund shall be administered and invested with the care, skill, prudence, and diligence, under the circumstances prevailing at the time of such investment, that a prudent person acting in a like capacity and manner would use.

(2) Strategy.--The Administrator shall invest amounts in the Fund in a manner that enables the Fund to make current and future distributions to or for the benefit of asbestos claimants. In pursuing an investment strategy under this subparagraph, the Administrator shall consider, to the extent relevant to an investment decision or action--

(A) the size of the Fund;

(B) the nature and estimated duration of the Fund;

(D) general economic conditions at the time of the investment;

(E) the possible effect of inflation or deflation on Fund assets;

(F) the role that each investment or course of action plays with respect to the overall assets of the Fund;

(G) the expected amount to be earned (including both income and appreciation of capital) through investment of amounts in the Fund; and

(H) the needs of asbestos claimants for current and future distributions authorized under this Act.

(1) In general.--Notwithstanding any other provision of this Act, the Administrator shall have the authority to impose a pro rata surcharge on all participants under this subsection to ensure the liquidity of the Fund, if--

(A) the declared assets from 1 or more bankruptcy trusts established under a plan of reorganization confirmed and substantially consummated on or before July 31, 2004, are not available to the Fund because a final judgment that has been entered by a court and is no longer subject to any appeal or review has enjoined the transfer of assets required under section 524(j)(2) of title 11, United States Code (as amended by section 402(f) of this Act); and

(B) borrowing is insufficient to assure the Fund's ability to meet its obligations under this Act such that the required borrowed amount is likely to increase the risk of termination of this Act under section 405 based on reasonable claims projections.

(2) Allocation.--Any surcharge imposed under this subsection shall be imposed over a period of 5 years on a pro rata basis upon all participants, in accordance with the relative aggregate funding obligations under sections 202(a)(2) and 212(a)(2)(A).

(3) Certification.--

(A) In general.--Before imposing a surcharge under this subsection, the Administrator shall publish a notice in the Federal Register and provide in such notice for a public comment period of 30 days.

(B) Contents of notice.--The notice required under subparagraph (A) shall include--

(i) information explaining the circumstances that make a surcharge necessary and a certification that the requirements under paragraph (1) are met;

(ii) the amount of the declared assets from any trust established under a plan of reorganization confirmed and substantially consummated on or before July 31, 2004, that was not made, or is no longer, available to the Fund;

(iii) the total aggregate amount of the necessary surcharge; and

(iv) the surcharge amount for each tier and subtier of defendant participants and for each insurer participant.

(C) Final notice.--The Administrator shall publish a final notice in the Federal Register and provide each participant with written notice of that participant's schedule of payments under this subsection. In no event shall any required surcharge under this subsection be due before 60 days after the Administrator publishes the final notice in the Federal Register and provides each participant with written notice of its schedule of payments.

(4) Maximum amount.--In no event shall the total aggregate surcharge imposed by the Administrator exceed the lesser of--

(A) the total aggregate amount of the declared assets of the trusts established under a plan of reorganization confirmed and substantially consummated prior to July 31, 2004, that are no longer available to the Fund; or

(B) $4,000,000,000.

(5) Declared assets.--

(A) In general.--In this subsection, the term ``declared assets'' means--

(i) the amount of assets transferred by any trust established under a plan of reorganization confirmed and substantially consummated on or before July 31, 2004, to the Fund that is required to be returned to that trust under the final judgment described in paragraph (1)(A); or

(ii) if no assets were transferred by the trust to the Fund, the amount of assets the Administrator determines would have been available for transfer to the Fund from that trust under section 402(f).

(B) Determination.--In making a determination under subparagraph (A)(ii), the Administrator may rely on any information reasonably available, and may request, and use subpoena authority of the Administrator if necessary to obtain, relevant information from any such trust or its trustees.

(d) Bankruptcy Trust Credits.--

(1) In general.--Notwithstanding any other provision of this Act, but subject to paragraph (2) of this subsection, the Administrator shall provide a credit toward the aggregate payment obligations under sections 202(a)(2) and 212(a)(2)(A) for assets received by the Fund from any bankruptcy trust established under a plan of reorganization confirmed and substantially consummated after July 31, 2004.

(2) Allocation of credits.--The Administrator shall allocate, for each such bankruptcy trust, the credits for such assets between the defendant and insurer aggregate payment obligations as follows:

(A) Defendant participants.--The aggregate amount that all persons other than insurers contributing to the bankruptcy trust would have been required to pay as Tier I defendants under section 203(b) if the plan of reorganization under which the bankruptcy trust was established had not been confirmed and substantially consummated and the proceeding under chapter 11 of title 11, United States Code, that resulted in the establishment of the bankruptcy trust had remained pending as of the date of enactment of this Act.

(B) Insurer participants.--The aggregate amount of all credits to which insurers are entitled to under section 202(c)(4)(A) of the Act.

SEC. 223. ENFORCEMENT OF PAYMENT OBLIGATIONS.

(a) Default.--If any participant fails to make any payment in the amount of and according to the schedule under this Act or as prescribed by the Administrator, after demand and a 30-day opportunity to cure the default, there shall be a lien in favor of the United States for the amount of the delinquent payment (including interest) upon all property and rights to property, whether real or personal, belonging to such participant.

(b) Bankruptcy.--In the case of a bankruptcy or insolvency proceeding, the lien imposed under subsection (a) shall be treated in the same manner as a lien for taxes due and owing to the United States for purposes of the provisions of title 11, United States Code, or section 3713(a) of title 31, United States Code. The United States Bankruptcy Court shall have jurisdiction over any issue or controversy regarding lien priority and lien perfection arising in a bankruptcy case due to a lien imposed under subsection (a).

(1) In general.--In any case in which there has been a refusal or failure to pay any liability imposed under this Act, including a refusal or failure to provide the information required under section 204 needed to determine liability, the Administrator may bring a civil action in any appropriate United States District Court, or any other appropriate lawsuit or proceeding outside of the United States--

(A) to enforce the liability and any lien of the United States imposed under this section;

(B) to subject any property of the participant, including any property in which the participant has any right, title, or interest to the payment of such liability;

(D) to enforce a subpoena issued under section 204(i)(9) to compel the production of documents necessary to determine liability.

(2) Additional penalties.--In any action under paragraph

(1) in which the refusal or failure to pay was willful, the Administrator may seek recovery--

(A) of punitive damages;

(B) of the costs of any civil action under this subsection, including reasonable fees incurred for collection, expert witnesses, and attorney's fees; and

(d) Enforcement Authority as to Insurer Participants.--

(1) In general.--In addition to or in lieu of the enforcement remedies described in subsection (c), the Administrator may seek to recover amounts in satisfaction of a payment not timely paid by an insurer participant under the procedures under this subsection.

(2) Subrogation.--To the extent required to establish personal jurisdiction over nonpaying insurer participants, the Administrator shall be deemed to be subrogated to the contractual rights of participants to seek recovery from nonpaying insuring participants that are domiciled outside the United States under the policies of liability insurance or contracts of liability reinsurance or retrocessional reinsurance applicable to asbestos claims, and the Administrator may bring an action or an arbitration against the nonpaying insurer participants under the provisions of such policies and contracts, provided that--

(A) any amounts collected under this subsection shall not increase the amount of deemed erosion allocated to any policy or contract under section 404, or otherwise reduce coverage available to a participant; and

(B) subrogation under this subsection shall have no effect on the validity of the insurance policies or reinsurance, and any contrary State law is expressly preempted.

(3) Recoverability of contribution.--For purposes of this subsection--

(A) all contributions to the Fund required of a participant shall be deemed to be sums legally required to be paid for bodily injury resulting from exposure to asbestos;

(B) all contributions to the Fund required of any participant shall be deemed to be a single loss arising from a single occurrence under each contract to which the Administrator is subrogated; and

(C) with respect to reinsurance contracts, all contributions to the Fund required of a participant shall be deemed to be payments to a single claimant for a single loss.

(4) No credit or offset.--In any action brought under this subsection, the nonpaying insurer or reinsurer shall be entitled to no credit or offset for amounts collectible or potentially collectible from any participant nor shall such defaulting participant have any right to collect any sums payable under this section from any participant.

(5) Cooperation.--Insureds and cedents shall cooperate with the Administrator's reasonable requests for assistance in any such proceeding. The positions taken or statements made by the Administrator in any such proceeding shall not be binding on or attributed to the insureds or cedents in any other proceeding. The outcome of such a proceeding shall not have a preclusive effect on the insureds or cedents in any other proceeding and shall not be admissible against any subrogee under this section. The Administrator shall have the authority to settle or compromise any claims against a nonpaying insurer participant under this subsection.

(e) Bar on United States Business.--If any direct insurer or reinsurer refuses to pay any contribution required by this Act, then, in addition to any other penalties imposed by this Act, the Administrator shall issue an order barring such entity and its affiliates from insuring risks located within the United States or otherwise doing business within the United States unless and until it complies. If any direct insurer or reinsurer refuses to furnish any information requested by the Administrator, the Administrator may issue an order barring such entity and its affiliates from insuring risks located within the United States or otherwise doing business within the United States unless and until it complies. Insurer participants or their affiliates seeking to obtain a license from any State to write any type of insurance shall be barred from obtaining any such license until payment of all contributions required as of the date of license application.

(f) Credit for Reinsurance.--If the Administrator determines that an insurer participant that is a reinsurer is in default in paying any required contribution or otherwise not in compliance with this Act, the Administrator may issue an order barring any direct insurer participant from receiving credit for reinsurance purchased from the defaulting reinsurer after the date of the Administrator's determination of default. Any State law governing credit for reinsurance to the contrary is preempted.

(g) Defense Limitation.--In any proceeding under this section, the participant shall be barred from bringing any challenge to any determination of the Administrator or the Asbestos Insurers Commission regarding its liability under this Act, or to the constitutionality of this Act or any provision thereof, if such challenge could have been made during the review provided under section 204(i)(10), or in a judicial review proceeding under section 303.

(h) Deposit of Funds.--

(1) In general.--Any funds collected under subsection

(c)(2) (A) or (C) shall be--

(A) deposited in the Fund; and

(B) used only to pay--

(i) claims for awards for an eligible disease or condition determined under title I; or

(ii) claims for reimbursement for medical monitoring determined under title I.

(2) No effect on other liabilities.--The imposition of a fine under subsection (c)(2)(C) shall have no effect on--

(A) the assessment of contributions under subtitles A and B; or

(B) any other provision of this Act.

(i) Property of the Estate.--Section 541(b) of title 11, United States Code, is amended--

(1) in paragraph (4)(B)(ii), by striking ``or'' at the end;

(2) in paragraph (5), by striking ``prohibition.'' and inserting ``prohibition; or''; and

(3) by inserting after paragraph (5) and before the last undesignated sentence the following:

``(6) the value of any pending claim against or the amount of an award granted from the Asbestos Injury Claims Resolution Fund established under the Fairness in Asbestos Injury Resolution Act of 2006.''.

(j) Transactions.--

(1) Notice of transaction.--Any participant that has engaged in any transaction or series of transactions under which a significant portion of such participant's assets, properties, or business was, directly or indirectly, transferred by any means (including by sale, dividend, contribution to a subsidiary or split-off) to 1 or more persons other than the participant shall provide written notice to the Administrator of such transaction (or series of transactions).

(2) Timing of notice and related actions.--

(A) In general.--Any notice that a participant is required to give under paragraph (1) shall be given not later than 30 days after the date of consummation of the transaction or the first transaction to occur in a proposed series of transactions.

(B) Other notifications.--

(i) In general.--Not later than the date in any year by which a participant is required to make its contribution to the Fund, the participant shall deliver to the Administrator a written certification stating that--

(I) the participant has complied during the period since the last such certification or the date of enactment of this Act with the notice requirements under this subsection; or

(II) the participant was not required to provide any notice under this subsection during such period.

(ii) Summary.--The Administrator shall include in the annual report required to be submitted to Congress under section 405 a summary of all such notices (after removing all confidential identifying information) received during the most recent fiscal year.

(C) Notice completion.--The Administrator shall not consider any notice given under paragraph (1) as given until such time as the Administrator receives substantially all the information required by this subsection.

(3) Contents of notice.--

(A) In general.--The Administrator shall determine by rule or regulation the information to be included in the notice required under this subsection, which shall include such information as may be necessary to enable the Administrator to determine whether--

(i) the person or persons to whom the assets, properties, or business were transferred in the transaction (or series of transactions) should be considered to be the successor in interest of the participant for purposes of this Act; or

(ii) the transaction (or series of transactions) is subject to avoidance by a trustee under section 544(b) or 548 of title 11, United States Code, as if, but whether or not, the participant is subject to a case under title 11, United States Code.

(B) Statements.--The notice shall also include--

(i) a statement by the participant as to whether the participant believes any person has become a successor in interest to the participant for purposes of this Act and, if so, the identity of that person; and

(ii) a statement by the participant as to whether that person has acknowledged that it has become a successor in interest for purposes of this Act.

(4) Definition.--In this subsection, the term ``significant portion of the assets, properties, or business of a participant'' means assets (including tangible or intangible assets, securities, and cash), properties or business of such participant (or its affiliated group, to the extent that the participant has elected to be part of an affiliated group under section 204(f)) that, together with any other asset, property, or business transferred by such participant in any of the previous completed 5 fiscal years of such participant

(or, as appropriate, its affiliated group), and as determined in accordance with United States generally accepted accounting principles as in effect from time to time--

(A) generated at least 40 percent of the revenues of such participant (or its affiliated group);

(B) constituted at least 40 percent of the assets of such participant (or its affiliated group);

(D) generated at least 40 percent of the net income or loss of such participant (or its affiliated group),

as measured during any of such 5 previous fiscal years.

(5) Right of action.--

(A) In general.--Notwithstanding section 221(f), if the Administrator or any participant believes that a participant has engaged, directly or indirectly, in, or is the subject of, a transaction (or series of transactions)--

(i) involving a person or persons who, as a result of such transaction (or series of transactions), may have or may become the successor in interest or successors in interest of such participant, where the status as a successor in interest has not been stated and acknowledged by the participant and such person; or

(ii) that may be subject to avoidance by a trustee under section 544(b) or 548 of title 11, United States Code, as if, but whether or not, the participant is a subject to a case under title 11, United States Code,

then the Administrator or such participant may, as a deemed creditor under applicable law, bring a civil action in an appropriate forum against the participant or any other person who is either a party to the transaction (or series of transactions) or the recipient of any asset, property, or business of the participant.

(B) Relief allowed.--In any action commenced under this subsection, the Administrator or a participant, as applicable, may seek--

(i) with respect to a transaction (or series of transactions) referenced in clause (i) of subparagraph (A), a declaratory judgment regarding whether such person has become the successor in interest of such participant; or

(ii) with respect to a transaction (or series of transactions) referenced in clause (ii) of subparagraph (A) a temporary restraining order or a preliminary or permanent injunction such other relief regarding such transaction (or series of transactions) as the court determines to be necessary to ensure that performance of a participant's payment obligations under this Act is not materially impaired by reason of such transaction (or series of transactions).

(C) Applicability.--If the Administrator or a participant wishes to challenge a statement made by a participant that a person has not become a successor in interest for purposes of this Act, then this paragraph shall be the exclusive means by which the determination of whether such person became a successor in interest of the participant shall be made. This paragraph shall not preempt any other rights of any person under applicable Federal or State law.

(D) Venue.--Any action under this paragraph shall be exclusively brought in any appropriate United States district court or, to the extent necessary to obtain complete relief, any other appropriate forum outside of the United States.

(6) Rules and regulations.--The Administrator may promulgate regulations to effectuate the intent of this subsection, including regulations relating to the form, timing, and content of notices.

SEC. 224. INTEREST ON UNDERPAYMENT OR NONPAYMENT.

If any amount of payment obligation under this title is not paid on or before the last date prescribed for payment, the liable party shall pay interest on such amount at the Federal short-term rate determined under section 6621(b) of the Internal Revenue Code of 1986, plus 5 percentage points, for the period from such last date to the date paid.

SEC. 225. EDUCATION, CONSULTATION, SCREENING, AND MONITORING.

(a) In General.--The Administrator shall establish a program for the education, consultation, medical screening, and medical monitoring of persons with exposure to asbestos. The program shall be funded by the Fund.

(b) Outreach and Education.--

(1) In general.--Not later than 1 year after the date of enactment of this Act, the Administrator shall establish an outreach and education program, including a website designed to provide information about asbestos-related medical conditions to members of populations at risk of developing such conditions.

(2) Information.--The information provided under paragraph

(1) shall include information about--

(A) the signs and symptoms of asbestos-related medical conditions;

(B) the value of appropriate medical screening programs; and

(3) Contracts.--Preference in any contract under this subsection shall be given to providers that are existing nonprofit organizations with a history and experience of providing occupational health outreach and educational programs for individuals exposed to asbestos.

(1) Establishment of program.--Not sooner than 18 months or later than 24 months after the Administrator certifies that the Fund is fully operational and processing claims at a reasonable rate, the Administrator shall adopt guidelines establishing a medical screening program for individuals at high risk of asbestos-related disease resulting from an asbestos-related disease. In promulgating such guidelines, the Administrator shall consider the views of the Advisory Committee on Asbestos Disease Compensation, the Medical Advisory Committee, and the public.

(2) Eligibility criteria.--

(A) In general.--The guidelines promulgated under this subsection shall establish criteria for participation in the medical screening program.

(B) Considerations.--In promulgating eligibility criteria the Administrator shall take into consideration all factors relevant to the individual's effective cumulative exposure to asbestos, including--

(i) any industry in which the individual worked;

(ii) the individual's occupation and work setting;

(iii) the historical period in which exposure took place;

(iv) the duration of the exposure;

(v) the intensity and duration of nonoccupational exposures;

(vi) the intensity and duration of exposure to risk levels of naturally occurring asbestos as defined by the Environmental Protection Agency; and

(vii) any other factors that the Administrator determines relevant.

(3) Protocols.--The guidelines developed under this subsection shall establish protocols for medical screening, which shall include--

(A) administration of a health evaluation and work history questionnaire;

(B) an evaluation of smoking history;

(D) a chest x-ray read by a certified B-reader as defined under section 121(a)(4); and

(E) pulmonary function testing as defined under section 121(a)(13).

(4) Frequency.--The Administrator shall establish the frequency with which medical screening shall be provided or be made available to eligible individuals, which shall be not less than every 5 years.

(5) Provision of services.--The Administrator shall provide medical screening to eligible individuals directly or by contract with another agency of the Federal Government, with State or local governments, or with private providers of medical services. The Administrator shall establish strict qualifications for the providers of such services, and shall periodically audit the providers of services under this subsection, to ensure their integrity, high degree of competence, and compliance with all applicable technical and professional standards. No provider of medical screening services may have earned more than 15 percent of their income from the provision of services of any kind in connection with asbestos litigation in any of the 3 years preceding the date of enactment of this Act. All contracts with providers of medical screening services under this subsection shall contain provisions for reimbursement of screening services at a reasonable rate and termination of such contracts for cause if the Administrator determines that the service provider fails to meet the qualifications established under this subsection.

(6) Limitation of compensation for services.--The compensation required to be paid to a provider of medical screening services for such services furnished to an eligible individual shall be limited to the amount that would be reimbursed at the time of the furnishing of such services under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.) for similar services if such services are covered under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.).

(7) Funding; periodic review.--

(A) Funding.--The Administrator shall make such funds available from the Fund to implement this section, with a minimum of $20,000,000 but not more than $30,000,000 each year in each of the 5 years following the effective date of the medical screening program. Notwithstanding the preceding sentence, the Administrator shall suspend the operation of the program or reduce its funding level if necessary to preserve the solvency of the Fund and to prevent the sunset of the overall program under section 405(g).

(B) Review.--The Administrator may reduce the amount of funding below $20,000,000 each year if the program is fully implemented. The Administrator's first annual report under section 405 following the close of the 4th year of operation of the medical screening program shall include an analysis of the usage of the program, its cost and effectiveness, its medical value, and the need to continue that program for an additional 5-year period. The Administrator shall also recommend to Congress any improvements that may be required to make the program more effective, efficient, and economical, and shall recommend a funding level for the program for the 5 years following the period of initial funding referred to under subparagraph (A).

(d) Limitation.--In no event shall the total amount allocated to the medical screening program established under this subsection over the lifetime of the Fund exceed

$600,000,000.

(e) Medical Monitoring Program and Protocols.--

(1) In general.--The Administrator shall establish procedures for a medical monitoring program for persons exposed to asbestos who have been approved for level I compensation under section 131.

(2) Procedures.--The procedures for medical monitoring shall include--

(A) specific medical tests to be provided to eligible individuals and the periodicity of those tests, which shall initially be provided every 3 years and include--

(i) administration of a health evaluation and work history questionnaire;

(ii) physical examinations, including blood pressure measurement, chest examination, and examination for clubbing;

(iii) AP and lateral chest x-ray; and

(iv) spirometry performed according to ATS standards;

(B) qualifications of medical providers who are to provide the tests required under subparagraph (A); and

(C) administrative provisions for reimbursement from the Fund of the costs of monitoring eligible claimants, including the costs associated with the visits of the claimants to physicians in connection with medical monitoring, and with the costs of performing and analyzing the tests.

(3) Preferences.--

(A) In general.--In administering the monitoring program under this subsection, preference shall be given to medical and program providers with--

(i) a demonstrated capacity for identifying, contacting, and evaluating populations of workers or others previously exposed to asbestos; and

(ii) experience in establishing networks of medical providers to conduct medical screening and medical monitoring examinations.

(B) Provision of lists.--Claimants that are eligible to participate in the medical monitoring program shall be provided with a list of approved providers in their geographic area at the time such claimants become eligible to receive medical monitoring.

(f) Contracts.--The Administrator may enter into contracts with qualified program providers that would permit the program providers to undertake large-scale medical screening and medical monitoring programs by means of subcontracts with a network of medical providers, or other health providers.

(g) Review.--Not later than 5 years after the date of enactment of this Act, and every 5 years thereafter, the Administrator shall review, and if necessary update, the protocols and procedures established under this section.

SEC. 226. NATIONAL MESOTHELIOMA RESEARCH AND TREATMENT

PROGRAM.

(a) In General.--There is established the National Mesothelioma Research and Treatment Program (referred to in this section as the ``Program'') to investigate and advance the detection, prevention, treatment, and cure of malignant mesothelioma.

(b) Mesothelioma Centers.--

(1) In general.--The Administrator shall make available

$1,500,000 from the Fund, and the Director of the National Institutes of Health shall make available $1,000,000 from amounts available to the Director, for each of fiscal years 2006 through 2015, for the establishment of each of 10 mesothelioma disease research and treatment centers.

(2) Requirements.--The Director of the National Institutes of Health, in consultation with the Medical Advisory Committee, shall conduct a competitive peer review process to select sites for the centers described in paragraph (1). The Director shall ensure that sites selected under this paragraph are--

(A) geographically distributed throughout the United States with special consideration given to areas of high incidence of mesothelioma disease;

(B) closely associated with Department of Veterans Affairs medical centers, in order to provide research benefits and care to veterans who have suffered excessively from mesothelioma;

(C) engaged in exemplary laboratory and clinical mesothelioma research, including clinical trials, to provide mechanisms for effective therapeutic treatments, as well as detection and prevention, particularly in areas of palliation of disease symptoms and pain management;

(D) participants in the National Mesothelioma Registry and Tissue Bank under subsection (c) and the annual International Mesothelioma Symposium under subsection (d)(2)(E);

(E) with respect to research and treatment efforts, coordinated with other centers and institutions involved in exemplary mesothelioma research and treatment;

(F) able to facilitate transportation and lodging for mesothelioma patients, so as to enable patients to participate in the newest developing treatment protocols, and to enable the centers to recruit patients in numbers sufficient to conduct necessary clinical trials; and

(G) nonprofit hospitals, universities, or medical or research institutions incorporated or organized in the United States.

(1) Establishment.--The Administrator shall make available

$1,000,000 from the Fund, and the Director of the National Institutes of Health shall make available $1,000,000 from amounts available to the Director, for each of fiscal years 2006 through 2015 for the establishment, maintenance, and operation of a National Mesothelioma Registry to collect data regarding symptoms, pathology, evaluation, treatment, outcomes, and quality of life and a Tissue Bank to include the pre- and post-treatment blood (serum and blood cells) specimens as well as tissue specimens from biopsies and surgery. Not less than $500,000 of the amount made available under the preceding sentence in each fiscal year shall be allocated for the collection and maintenance of tissue specimens.

(2) Requirements.--The Director of the National Institutes of Health, with the advice and consent of the Medical Advisory Committee, shall conduct a competitive peer review process to select a site to administer the Registry and Tissue Bank described in paragraph (1). The Director shall ensure that the site selected under this paragraph--

(A) is available to all mesothelioma patients and qualifying physicians throughout the United States;

(B) is subject to all applicable medical and patient privacy laws and regulations;

(D) provides data and tissue samples to qualifying researchers and physicians who apply for such data in order to further the understanding, prevention, screening, diagnosis, or treatment of malignant mesothelioma.

(d) Center for Mesothelioma Education.--

(1) Establishment.--The Administrator shall make available

$1,000,000 from the Fund, and the Director of the National Institutes of Health shall make available $1,000,000 from amounts available to the Director, for each of fiscal years 2006 through 2015 for the establishment, with the advice and consent of the Medical Advisory Committee, of a Center for Mesothelioma Education (referred to in this section as the

``Center'') to--

(A) promote mesothelioma awareness and education;

(B) assist mesothelioma patients and their family members in obtaining necessary information; and

(2) Activities.--The Center shall--

(A) educate the public about the new initiatives contained in this section through a National Mesothelioma Awareness Campaign;

(B) develop and maintain a Mesothelioma Educational Resource Center (referred to in this section as the

``MERCI''), that is accessible via the Internet, to provide mesothelioma patients, family members, and front-line physicians with comprehensive, current information on mesothelioma and its treatment, as well as on the existence of, and general claim procedures for the Asbestos Injury Claims Resolution Fund;

(C) through the MERCI and otherwise, educate mesothelioma patients, family members, and front-line physicians about, and encourage such individuals to participate in, the centers established under subsection (b), the Registry and the Tissue Bank;

(D) complement the research efforts of the centers established under subsection (b) by awarding competitive, peer-reviewed grants for the training of clinical specialist fellows in mesothelioma, and for highly innovative, experimental or pre-clinical research; and

(E) conduct an annual International Mesothelioma Symposium.

(3) Requirements.--The Center shall--

(A) be a nonprofit corporation under section 501(c)(3) of the Internal Revenue Code of 1986;

(B) be a separate entity from and not an affiliate of any hospital, university, or medical or research institution; and

(C) demonstrate a history of program spending that is devoted specifically to the mission of extending the survival of current and future mesothelioma patients, including a history of soliciting, peer reviewing through a competitive process, and funding research grant applications relating to the detection, prevention, treatment, and cure of mesothelioma.

(4) Contracts for oversight.--The Director of the National Institutes of Health may enter into contracts with the Center for the selection and oversight of the centers established under subsection (b), or selection of the director of the Registry and the Tissue Bank under subsection (c) and oversight of the Registry and the Tissue Bank.

(e) Report and Recommendations.--Not later than September 30, 2015, The Director of the National Institutes of Health shall, after opportunity for public comment and review, publish and provide to Congress a report and recommendations on the results achieved and information gained through the Program, including--

(1) information on the status of mesothelioma as a national health issue, including--

(A) annual United States incidence and death rate information and whether such rates are increasing or decreasing;

(B) the average prognosis; and

(2) promising advances in mesothelioma treatment and research which could be further developed if the Program is reauthorized; and

(3) a summary of advances in mesothelioma treatment made in the 10-year period prior to the report and whether those advances would justify continuation of the Program and whether it should be reauthorized for an additional 10 years.

(f) Severability.--If any provision of this Act, or amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this Act (including this section), the amendments made by this Act, and the application of the provisions of such to any person or circumstance shall not be affected thereby.

(g) Regulations.--The Director of the National Institutes of Health shall promulgate regulations to provide for the implementation of this section.

TITLE III--JUDICIAL REVIEW

SEC. 301. JUDICIAL REVIEW OF RULES AND REGULATIONS.

(a) Exclusive Jurisdiction.--The United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction over any action to review rules or regulations promulgated by the Administrator or the Asbestos Insurers Commission under this Act.

(b) Period for Filing Petition.--A petition for review under this section shall be filed not later than 60 days after the date notice of such promulgation appears in the Federal Register.

(c) Expedited Procedures.--The United States Court of Appeals for the District of Columbia shall provide for expedited procedures for reviews under this section.

SEC. 302. JUDICIAL REVIEW OF AWARD DECISIONS.

(a) In General.--Any claimant adversely affected or aggrieved by a final decision of the Administrator awarding or denying compensation under title I may petition for judicial review of such decision. Any petition for review under this section shall be filed within 90 days of the issuance of a final decision of the Administrator.

(b) Exclusive Jurisdiction.--A petition for review may only be filed in the United States Court of Appeals for the circuit in which the claimant resides at the time of the issuance of the final order.

(c) Standard of Review.--The court shall uphold the decision of the Administrator unless the court determines, upon review of the record as a whole, that the decision is not supported by substantial evidence, is contrary to law, or is not in accordance with procedure required by law.

(d) Expedited Procedures.--The United States Court of Appeals shall provide for expedited procedures for reviews under this section.

SEC. 303. JUDICIAL REVIEW OF PARTICIPANTS' ASSESSMENTS.

(a) Exclusive Jurisdiction.--The United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction over any action to review a final determination by the Administrator or the Asbestos Insurers Commission regarding the liability of any person to make a payment to the Fund, including a notice of applicable subtier assignment under section 204(i), a notice of financial hardship or inequity determination under section 204(d), a notice of a distributor's adjustment under section 204(m), and a notice of insurer participant obligation under section 212(b).

(b) Period for Filing Action.--A petition for review under subsection (a) shall be filed not later than 60 days after a final determination by the Administrator or the Commission giving rise to the action. Any defendant participant who receives a notice of its applicable subtier under section 204(i), a notice of financial hardship or inequity determination under section 204(d), or a notice of a distributor's adjustment under section 204(m), shall commence any action within 30 days after a decision on rehearing under section 204(i)(10), and any insurer participant who receives a notice of a payment obligation under section 212(b) shall commence any action within 30 days after receiving such notice. The court shall give such action expedited consideration.

SEC. 304. OTHER JUDICIAL CHALLENGES.

(a) Exclusive Jurisdiction.--The United States District Court for the District of Columbia shall have exclusive jurisdiction over any action for declaratory or injunctive relief challenging any provision of this Act. An action under this section shall be filed not later than 60 days after the date of enactment of this Act or 60 days after the final action by the Administrator or the Commission giving rise to the action, whichever is later.

(b) Direct Appeal.--A final decision in the action shall be reviewable on appeal directly to the Supreme Court of the United States. Such appeal shall be taken by the filing of a notice of appeal within 30 days, and the filing of a jurisdictional statement within 60 days, of the entry of the final decision.

(c) Expedited Procedures.--It shall be the duty of the United States District Court for the District of Columbia and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of the action and appeal.

SEC. 305. STAYS, EXCLUSIVITY, AND CONSTITUTIONAL REVIEW.

(a) No Stays.--

(1) Payments.--No court may issue a stay of payment by any party into the Fund pending its final judgment.

(2) Legal challenges.--No court may issue a stay or injunction pending final judicial action, including the exhaustion of all appeals, on a legal challenge to this Act or any portion of this Act.

(b) Exclusivity of Review.--An action of the Administrator or the Asbestos Insurers Commission for which review could have been obtained under section 301, 302, or 303 shall not be subject to judicial review in any other proceeding.

(1) In general.--The United States District Court for the District of Columbia shall have exclusive jurisdiction over any action challenging the constitutionality of any provision or application of this Act. The following rules shall apply:

(A) The action shall be filed in the United States District Court for the District of Columbia and shall be heard by a 3-judge court convened under section 2284 of title 28, United States Code.

(B) A final decision in the action shall be reviewable only by appeal directly to the Supreme Court of the United States. Such appeal shall be taken by the filing of a notice of appeal within 10 days, and the filing of a jurisdictional statement within 30 days, after the entry of the final decision.

(C) It shall be the duty of the United States District Court for the District of Columbia and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of the action and appeal.

(2) Repayment to asbestos trust and class action trust.--If the transfer of the assets of any asbestos trust of a debtor or any class action trust (or this Act as a whole) is held to be unconstitutional or otherwise unlawful, the Fund shall transfer the remaining balance of such assets (determined under section 405(f)(1)(A)(iii)) back to the appropriate asbestos trust or class action trust within 90 days after final judicial action on the legal challenge, including the exhaustion of all appeals.

TITLE IV--MISCELLANEOUS PROVISIONS

SEC. 401. FALSE INFORMATION.

(a) In General.--Chapter 63 of title 18, United States Code, is amended by adding at the end the following:

``Sec. 1351. Fraud and false statements in connection with participation in Asbestos Injury Claims Resolution Fund

``(a) Fraud Relating to Asbestos Injury Claims Resolution Fund.--Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice to defraud the Office of Asbestos Disease Compensation or the Asbestos Insurers Commission under title II of the Fairness in Asbestos Injury Resolution Act of 2006 shall be fined under this title or imprisoned not more than 20 years, or both.

``(b) False Statement Relating to Asbestos Injury Claims Resolution Fund.--

``(1) In general.--It shall be unlawful for any person, in any matter involving the Office of Asbestos Disease Compensation or the Asbestos Insurers Commission, to knowingly and willfully--

``(A) falsify, conceal, or cover up by any trick, scheme, or device a material fact;

``(B) make any materially false, fictitious, or fraudulent statement or representation; or

``(C) make or use any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry, in connection with the award of a claim or the determination of a participant's payment obligation under title I or II of the Fairness in Asbestos Injury Resolution Act of 2006.

``(2) Penalty.--A person who violates this subsection shall be fined under this title or imprisoned not more than 10 years, or both.''.

(b) Technical and Conforming Amendment.--The table of sections for chapter 63 of title 18, United States Code, is amended by adding at the end the following:

``1351. Fraud and false statements in connection with participation in

Asbestos Injury Claims Resolution Fund.''.

SEC. 402. EFFECT ON BANKRUPTCY LAWS.

(a) No Automatic Stay.--Section 362(b) of title 11, United States Code, is amended--

(1) in paragraph (17), by striking ``or'' at the end;

(2) in paragraph (18), by striking the period at the end and inserting ``; or''; and

(3) by inserting after paragraph (18) the following:

``(19) under subsection (a) of this section of the enforcement of any payment obligations under section 204 of the Fairness in Asbestos Injury Resolution Act of 2006, against a debtor, or the property of the estate of a debtor, that is a participant (as that term is defined in section 3 of that Act).''.

(b) Assumption of Executory Contract.--Section 365 of title 11, United States Code, is amended by adding at the end the following:

``(p) If a debtor is a participant (as that term is defined in section 3 of the Fairness in Asbestos Injury Resolution Act of 2006), the trustee shall be deemed to have assumed all executory contracts entered into by the participant under section 204 of that Act. The trustee may not reject any such executory contract.''.

(c) Allowed Administrative Expenses.--Section 503 of title 11, United States Code, is amended by adding at the end the following:

``(c)(1) Claims or expenses of the United States, the Attorney General, or the Administrator (as that term is defined in section 3 of the Fairness in Asbestos Injury Resolution Act of 2006) based upon the asbestos payment obligations of a debtor that is a Participant (as that term is defined in section 3 of that Act), shall be paid as an allowed administrative expense. The debtor shall not be entitled to either notice or a hearing with respect to such claims.

``(2) For purposes of paragraph (1), the term `asbestos payment obligation' means any payment obligation under title II of the Fairness in Asbestos Injury Resolution Act of 2006.''.

(d) No Discharge.--Section 523 of title 11, United States Code, is amended by adding at the end the following:

``(f) A discharge under section 727, 1141, 1228, or 1328 of this title does not discharge any debtor that is a participant (as that term is defined in section 3 of the Fairness in Asbestos Injury Resolution Act of 2006) of the debtor's payment obligations assessed against the participant under title II of that Act.''.

(e) Payment.--Section 524 of title 11, United States Code, is amended by adding at the end the following:

``(i) Participant Debtors.--

``(1) In general.--Paragraphs (2) and (3) shall apply to a debtor who--

``(A) is a participant that has made prior asbestos expenditures (as such terms are defined in the Fairness in Asbestos Injury Resolution Act of 2006); and

``(B) is subject to a case under this title that is pending--

``(i) on the date of enactment of the Fairness in Asbestos Injury Resolution Act of 2006; or

``(ii) at any time during the 1-year period preceding the date of enactment of that Act.

``(2) Tier i debtors.--A debtor that has been assigned to Tier I under section 202 of the Fairness in Asbestos Injury Resolution Act of 2006, shall make payments in accordance with sections 202 and 203 of that Act.

``(3) Treatment of payment obligations.--All payment obligations of a debtor under sections 202 and 203 of the Fairness in Asbestos Injury Resolution Act of 2006 shall--

``(A) constitute costs and expenses of administration of a case under section 503 of this title;

``(B) notwithstanding any case pending under this title, be payable in accordance with section 202 of that Act;

``(C) not be stayed;

``(D) not be affected as to enforcement or collection by any stay or injunction of any court; and

``(E) not be impaired or discharged in any current or future case under this title.''.

(f) Treatment of Trusts.--Section 524 of title 11, United States Code, as amended by this Act, is amended by adding at the end the following:

``(j) Asbestos Trusts.--

``(1) In general.--A trust shall assign a portion of the corpus of the trust to the Asbestos Injury Claims Resolution Fund (referred to in this subsection as the `Fund') as established under the Fairness in Asbestos Injury Resolution Act of 2006 if the trust qualifies as a `trust' under section 201 of that Act.

``(2) Transfer of trust assets.--

``(A) In general.--

``(i) Except as provided under clause (ii) of this subparagraph and subparagraphs (B), (C), and (E), the assets in any trust established to provide compensation for asbestos claims (as defined in section 3 of the Fairness in Asbestos Injury Resolution Act of 2006) shall be transferred to the Fund not later than 90 days after the date of enactment of the Fairness in Asbestos Injury Resolution Act of 2006 or 30 days following funding of a trust established under a reorganization plan subject to section 202(c) of that Act. Except as provided under subparagraph (B), the Administrator of the Fund shall accept such assets and utilize them for any purposes of the Fund under section 221 of such Act, including the payment of claims for awards under such Act to beneficiaries of the trust from which the assets were transferred.

``(ii) Notwithstanding clause (i), and except as provided under subparagraphs (B), (C), and (E), any trust established to provide compensation for asbestos claims (as defined in section 3 of the Fairness in Asbestos Injury Resolution Act of 2006), other than a trust established under a reorganization plan subject to section 202(c) of that Act, shall transfer the assets in such trust to the Fund as follows:

``(I) In the case of a trust established on or before December 31, 2005, such trust shall transfer 90 percent of the assets in such trust to the Fund not later than 90 days after the date of enactment of the Fairness in Asbestos Injury Resolution Act of 2006.

``(II) In the case of a trust established after December 31, 2005, such trust shall transfer 88 percent of the assets in such trust to the Fund not later than 90 days after the date of enactment of the Fairness in Asbestos Injury Resolution Act of 2006.

``(iii) Not later than 90 days after the date on which the Administrator of the Office of Asbestos Disease Compensation

(referred to in this section as the `Administrator') certifies in accordance with section 106(f)(3)(E)(ii) of the Fairness in Asbestos Injury Resolution Act of 2006 that the Fund is fully operational and paying all valid asbestos claims at a reasonable rate, any trust transferring assets under clause (ii) shall transfer all remaining assets in such trust to the Fund. The transfer required by this clause shall not include any trust assets needed to pay--

``(I) previously incurred expenses; or

``(II) claims determined to be eligible for compensation under clause (vi).

``(iv) Except as provided under subparagraph (B), the Administrator of the Fund shall accept any assets transferred under clauses (ii) or (iii) and utilize them for any purposes for the Fund under section 221 of the Fairness in Asbestos Injury Resolution Act of 2006, including the payment of claims for awards under such Act to beneficiaries of the trust from which the assets were transferred.

``(v) Notwithstanding any other provision of Federal or State law, no liability of any kind may be imposed on a trustee of a trust for transferring assets to the Fund in accordance with clause (i).

``(vi) Any trust transferring assets under clause (ii) shall be subject to the following requirements:

``(I) The trust may continue to process asbestos claims, make eligibility determinations, and pay claims in a manner consistent with this clause if a claimant--

``(aa) provides to the trust a copy of a binding election submitted to Administrator waiving the right to secure compensation under section 106(f)(2) of the Fairness in Asbestos Injury Resolution Act of 2006, unless the claimant is permitted under section 106(f)(2)(B) of such Act to seek a judgment or order for monetary damages from a Federal or State court;

``(bb) meets the requirements for compensation under the distribution plan for the trust as of the date of enactment of the Fairness in Asbestos Injury Resolution Act of 2006;

``(cc) for any condition satisfies the medical criteria under the distribution plan for the trust that is most nearly equivalent to the medical criteria described in paragraph

(2), (3), (4), (5), (7), (8), or (9) of section 121(d) of the Fairness in Asbestos Injury Resolution Act of 2006, except that, notwithstanding any provision of the distribution plan of the trust to the contrary, the trust shall not accept the results of a DLCO test (as such test is defined in section 121(a) of the Fairness in Asbestos Injury Resolution Act of 2006) for the purpose of demonstrating respiratory impairment; and

``(dd) for any of the cancers listed in section 121(d)(6) of the Fairness in Asbestos Injury Resolution Act of 2006 does not seek, and the trust does not pay, any compensation until such time as the Institute of Medicine finds that there is a causal relationship between asbestos exposure and such cancer, in which case such claims may be paid if such claims otherwise qualify for compensation under the distribution plan of the trust as of the date of enactment of the Fairness in Asbestos Injury Resolution Act of 2006.

``(II) The trust shall not accept medical evidence from any physician, medical facility, or laboratory whose evidence would be not be accepted as evidence--

``(aa) under the Manville Trust as of the date of enactment of the Fairness in Asbestos Injury Resolution Act of 2006; or

``(bb) by the Administrator under section 115(a)(2) of such Act.

``(III) The trust shall not amend its scheduled payment amount or payment percentage as in effect on the date of enactment of the Fairness in Asbestos Injury Resolution Act of 2006.

``(IV) The trust shall not amend its eligibility criteria after the date of enactment of the Fairness in Asbestos Injury Resolution Act of 2006, except to conform any criteria in any category under the distribution plan of the trust with related criteria in a related category under section 121 of the Fairness in Asbestos Injury Resolution Act of 2006.

``(V) The trust shall notify the Administrator of the Fund of any claim determined to be eligible for compensation after the date of enactment of the Fairness in Asbestos Injury Resolution Act of 2006, and the amount of any such compensation awarded to the claimant of such claim. The notification required by this subclause shall be made in such form as the Administrator shall require, and not later than 15 days after the date the determination is made.

``(VI) The trust shall not pay any claim without a certification by a claimant, subject to the penalties described in the Fairness in Asbestos Injury Resolution Act of 2006, stating the amount of collateral source compensation that such claimant has received, or is entitled to receive, under section 134 of the Fairness in Asbestos Injury Resolution Act of 2006. In the event that collateral source compensation exceeds the amount that the claimant would be paid (excluding any adjustments under section 131(b) (3) and

(4) of the Act) for such condition under the Act most similar to the claimant's claim with the trust, such trust shall not make any payment to the claimant.

``(VII) Upon finding that the trust has breached any condition or conditions of this clause, the Administrator shall require the immediate payment of remaining trust assets into the Fund in accordance with section 402(f) of the Fairness in Asbestos Injury Resolution Act of 2006. The Administrator shall be entitled to an injunction against further payments of nonliquidated claims from the assets of the trust during the pendency of any dispute regarding the findings of noncompliance by the Administrator. The court in which any action to enforce the obligations of the trust is pending shall afford the action expedited consideration.

``(B) Authority to refuse assets.--The Administrator of the Fund may refuse to accept any asset that the Administrator determines may create liability for the Fund in excess of the value of the asset.

``(C) Allocation of trust assets.--If a trust under subparagraph (A) has beneficiaries with claims that are not asbestos claims, the assets transferred to the Fund under subparagraph (A) shall not include assets allocable to such beneficiaries. The trustees of any such trust shall determine the amount of such trust assets to be reserved for the continuing operation of the trust in processing and paying claims that are not asbestos claims. The trustees shall demonstrate to the satisfaction of the Administrator, or by clear and convincing evidence in a proceeding brought before the United States District Court for the District of Columbia in accordance with paragraph (4), that the amount reserved is properly allocable to claims other than asbestos claims.

``(D) Sale of fund assets.--The investment requirements under section 222 of the Fairness in Asbestos Injury Resolution Act of 2006 shall not be construed to require the Administrator of the Fund to sell assets transferred to the Fund under subparagraph (A).

``(E) Liquidated claims.--Except as specifically provided in this subparagraph, all asbestos claims against a trust are superseded and preempted as of the date of enactment of the Fairness in Asbestos Injury Resolution Act of 2006, and a trust shall not make any payment relating to asbestos claims after that date. If, in the ordinary course and the normal and usual administration of the trust consistent with past practices, a trust had before the date of enactment of the Fairness in Asbestos Injury Resolution Act of 2006, made all determinations necessary to entitle an individual claimant to a noncontingent cash payment from the trust, the trust shall

(i) make any lump-sum cash payment due to that claimant, and

(ii) make or provide for all remaining noncontingent payments on any award being paid or scheduled to be paid on an installment basis, in each case only to the same extent that the trust would have made such cash payments in the ordinary course and consistent with past practices before enactment of that Act. A trust shall not make any payment in respect of any alleged contingent right to recover any greater amount than the trust had already paid, or had completed all determinations necessary to pay, to a claimant in cash in accordance with its ordinary distribution procedures in effect as of June 1, 2003.

``(3) Injunction.--

``(A) In general.--Any injunction issued as part of the formation of a trust described in paragraph (1) shall remain in full force and effect, except that any provision of such an injunction channeling asbestos claims to such a trust for resolution shall have no force and effect. No court, Federal or State, may enjoin the transfer of assets by a trust to the Fund in accordance with this subsection pending resolution of any litigation challenging such transfer or the validity of this subsection or of any provision of the Fairness in Asbestos Injury Resolution Act of 2006, and an interlocutory order denying such relief shall not be subject to immediate appeal under section 1291(a) of title 28.

``(B) Availability of fund assets.--Notwithstanding any other provision of law, once such a transfer has been made, the assets of the Fund shall be available to satisfy any final judgment entered in such an action and such transfer shall no longer be subject to any appeal or review--

``(i) declaring that the transfer effected a taking of a right or property for which an individual is constitutionally entitled to just compensation; or

``(ii) requiring the transfer back to a trust of any or all assets transferred by that trust to the Fund.

``(4) Jurisdiction.--Solely for purposes of implementing this subsection, personal jurisdiction over every covered trust, the trustees thereof, and any other necessary party, and exclusive subject matter jurisdiction over every question arising out of or related to this subsection, shall be vested in the United States District Court for the District of Columbia. Notwithstanding any other provision of law, including section 1127 of this title, that court may make any order necessary and appropriate to facilitate prompt compliance with this subsection, including assuming jurisdiction over and modifying, to the extent necessary, any applicable confirmation order or other order with continuing and prospective application to a covered trust. The court may also resolve any related challenge to the constitutionality of this subsection or of its application to any trust, trustee, or individual claimant. The Administrator of the Fund may bring an action seeking such an order or modification, under the standards of rule 60(b) of the Federal Rules of Civil Procedure or otherwise, and shall be entitled to intervene as of right in any action brought by any other party seeking interpretation, application, or invalidation of this subsection. Any order denying relief that would facilitate prompt compliance with the transfer provisions of this subsection shall be subject to immediate appeal under section 304 of the Fairness in Asbestos Injury Resolution Act of 2006.''.

(g) No Avoidance of Transfer.--Section 546 of title 11, United States Code, is amended by adding at the end the following:

``(h) Notwithstanding the rights and powers of a trustee under sections 544, 545, 547, 548, 549, and 550 of this title, if a debtor is a participant (as that term is defined in section 3 of the Fairness in Asbestos Injury Resolution Act of 2006), the trustee may not avoid a transfer made by the debtor under its payment obligations under section 202 or 203 of that Act.''.

(h) Confirmation of Plan.--Section 1129(a) of title 11, United States Code, is amended by adding at the end the following:

``(14) If the debtor is a participant (as that term is defined in section 3 of the Fairness in Asbestos Injury Resolution Act of 2006), the plan provides for the continuation after its effective date of payment of all payment obligations under title II of that Act.''.

(i) Effect on Insurance Receivership Proceedings.--

(1) Lien.--In an insurance receivership proceeding involving a direct insurer, reinsurer or runoff participant, there shall be a lien in favor of the Fund for the amount of any assessment and any such lien shall be given priority over all other claims against the participant in receivership, except for the expenses of administration of the receivership and the perfected claims of the secured creditors. Any State law that provides for priorities inconsistent with this provision is preempted by this Act.

(2) Payment of assessment.--Payment of any assessment required by this Act shall not be subject to any automatic or judicially entered stay in any insurance receivership proceeding. This Act shall preempt any State law requiring that payments by a direct insurer, reinsurer or runoff participant in an insurance receivership proceeding be approved by a court, receiver or other person. Payments of assessments by any direct insurer or reinsurer participant under this Act shall not be subject to the avoidance powers of a receiver or a court in or relating to an insurance receivership proceeding.

(j) Standing in Bankruptcy Proceedings.--The Administrator shall have standing in any bankruptcy case involving a debtor participant. No bankruptcy court may require the Administrator to return property seized to satisfy obligations to the Fund.

SEC. 403. EFFECT ON OTHER LAWS AND EXISTING CLAIMS.

(a) Effect on Federal and State Law.--The provisions of this Act shall supersede any Federal or State law insofar as such law may relate to any asbestos claim, including any claim described under subsection (e)(2).

(b) Effect on Silica Claims.--

(1) In general.--

(A) Rule of construction.--Nothing in this Act shall be construed to preempt, bar, or otherwise preclude any personal injury claim attributable to exposure to silica as to which the plaintiff--

(i) pleads with particularity and establishes by a preponderance of evidence either that--

(I) no claim has been asserted or filed by or with respect to the exposed person in any forum for any asbestos-related condition and the exposed person (or another claiming on behalf of or through the exposed person) is not eligible for any monetary award under this Act; or

(II)(aa) the exposed person suffers or has suffered a functional impairment that was caused by exposure to silica; and

(bb) asbestos exposure was not a substantial contributing factor to such functional impairment; and

(ii) satisfies the requirements of paragraph (2) .

(B) Preemption.--Claims attributable to exposure to silica that fail to meet the requirements of subparagraph (A) shall be preempted by this Act.

(2) Required evidence.--

(A) In general.--In any claim to which paragraph (1) applies, the initial pleading (or, for claims pending on the date of enactment of this Act, an amended pleading to be filed within 60 days after such date, but not later than 60 days before trial, shall plead with particularity the elements of subparagraph (A)(i)(I) or (II) and shall be accompanied by the information described under subparagraph

(B)(i) through (iv).

(B) Pleadings.--If the claim pleads the elements of paragraph (1)(A)(i)(II) and by the information described under clauses (i) through (iv) of this subparagraph if the claim pleads the elements of paragraph (1)(A)(i)(I)--

(i) admissible evidence, including at a minimum, a B-reader's report, the underlying x-ray film and such other evidence showing that the claim may be maintained and is not preempted under paragraph (1);

(ii) notice of any previous lawsuit or claim for benefits in which the exposed person, or another claiming on behalf of or through the injured person, asserted an injury or disability based wholly or in part on exposure to asbestos;

(iii) if known by the plaintiff after reasonable inquiry by the plaintiff or his representative, the history of the exposed person's exposure, if any, to asbestos; and

(iv) copies of all medical and laboratory reports pertaining to the exposed person that refer to asbestos or asbestos exposure.

(3) Statute of limitations.--In general, the statute of limitations for a silica claim shall be governed by applicable State law, except that in any case under this subsection, the statute of limitations shall only start to run when the plaintiff becomes impaired.

(1) In general.--Except as provided under paragraph (3) and section 106(f), any agreement, understanding, or undertaking by any person or affiliated group with respect to the treatment of any asbestos claim, including a claim described under subsection (e)(2), that requires future performance by any party, insurer of such party, settlement administrator, or escrow agent shall be superseded in its entirety by this Act.

(2) No force or effect.--Except as provided under paragraph

(3), any such agreement, understanding, or undertaking by any such person or affiliated group shall be of no force or effect, and no person shall have any rights or claims with respect to any such agreement, understanding, or undertaking.

(3) Exception.--

(A) In general.--Except as provided in section 202(f), nothing in this Act shall abrogate a binding and legally enforceable written settlement agreement between any defendant participant or its insurer and a specific named plaintiff with respect to the settlement of an asbestos claim of the plaintiff if--

(i) before the date of enactment of this Act, the settlement agreement was executed by--

(I) the authorized legal representative acting on behalf of the settling defendant or insurer, the settling defendant or the settling insurer; and

(II)(aa) the specific individual plaintiff, or the individual's immediate relatives; or

(bb) an authorized legal representative acting on behalf of the plaintiff where the plaintiff is incapacitated and the settlement agreement is signed by that authorized legal representative;

(ii) the settlement agreement contains an express obligation by the settling defendant or settling insurer to make a future direct monetary payment or payments in a fixed amount or amounts to the individual plaintiff; and

(iii) within 30 days after the date of enactment of this Act, or such shorter time period specified in the settlement agreement, the plaintiff has fulfilled all conditions to payment under the settlement agreement.

(B) Bankruptcy-related agreements.--The exception set forth in this paragraph shall not apply to any bankruptcy-related agreement.

(C) Collateral source.--Any settlement payment under this section is a collateral source if the plaintiff seeks recovery from the Fund.

(D) Abrogation.--Nothing in subparagraph (A) shall abrogate a settlement agreement otherwise satisfying the requirements of that subparagraph if such settlement agreement expressly anticipates the enactment of this Act and provides for the effects of this Act.

(E) Health care insurance or expenses settlements.--Nothing in this Act shall abrogate or terminate an otherwise fully enforceable settlement agreement which was executed before the date of enactment of this Act directly by the settling defendant or the settling insurer and a specific named plaintiff to pay the health care insurance or health care expenses of the plaintiff.

(d) Exclusive Remedy.--

(1) In general.--Except as provided under paragraph (2) and section 106(f) of this Act and section 524(j)(3) of title 11, United States Code, as amended by this Act, the remedies provided under this Act shall be the exclusive remedy for any asbestos claim, including any claim described in subsection

(e)(2), under any Federal or State law.

(2) Civil actions at trial.--

(A) In general.--This Act shall not apply to any asbestos claim that--

(i) is a civil action filed in a Federal or State court

(not including a filing in a bankruptcy court);

(ii) is not part of a consolidation of actions or a class action; and

(iii) on the date of enactment of this Act--

(I) in the case of a civil action which includes a jury trial, is before the jury after its impaneling and commencement of presentation of evidence, but before its deliberations;

(II) in the case of a civil action which includes a trial in which a judge is the trier of fact, is at the presentation of evidence at trial; or

(III) a verdict, final order, or final judgment has been entered by a trial court.

(B) Nonapplicability.--This Act shall not apply to a civil action described under subparagraph (A) throughout the final disposition of the action.

(e) Bar on Asbestos Claims.--

(1) In general.--No asbestos claim (including any claim described in paragraph (2)) may be pursued, and no pending asbestos claim may be maintained, in any Federal or State court, except as provided under subsection (d)(2) and section 106(f) of this Act and section 524(j)(3) of title 11, United States Code, as amended by this Act.

(2) Certain specified claims.--

(A) In general.--Subject to section 404 (d) and (e)(3) of this Act, no claim may be brought or pursued in any Federal or State court or insurance receivership proceeding--

(i) relating to any default, confessed or stipulated judgment on an asbestos claim if the judgment debtor expressly agreed, in writing or otherwise, not to contest the entry of judgment against it and the plaintiff expressly agreed, in writing or otherwise, to seek satisfaction of the judgment only against insurers or in bankruptcy;

(ii) relating to the defense, investigation, handling, litigation, settlement, or payment of any asbestos claim by any participant, including claims for bad faith or unfair or deceptive claims handling or breach of any duties of good faith; or

(iii) arising out of or relating to the asbestos-related injury of any individual and--

(I) asserting any conspiracy, concert of action, aiding or abetting, act, conduct, statement, misstatement, undertaking, publication, omission, or failure to detect, speak, disclose, publish, or warn relating to the presence or health effects of asbestos or the use, sale, distribution, manufacture, production, development, inspection, advertising, marketing, or installation of asbestos; or

(II) asserting any conspiracy, act, conduct, statement, omission, or failure to detect, disclose, or warn relating to the presence or health effects of asbestos or the use, sale, distribution, manufacture, production, development, inspection, advertising, marketing, or installation of asbestos, asserted as or in a direct action against an insurer or reinsurer based upon any theory, statutory, contract, tort, or otherwise; or

(iv) by any third party, and premised on any theory, allegation, or cause of action, for reimbursement of healthcare costs allegedly associated with the use of or exposure to asbestos, whether such claim is asserted directly, indirectly or derivatively.

(B) Exceptions.--Subparagraph (A) (ii) and (iii) shall not apply to claims against participants by persons--

(i) with whom the participant is in privity of contract;

(ii) who have received an assignment of insurance rights not otherwise voided by this Act; or

(iii) who are beneficiaries covered by the express terms of a contract with that participant.

(3) Preemption.--Any action asserting an asbestos claim

(including a claim described in paragraph (2)) in any Federal or State court is preempted by this Act, except as provided under subsection (d)(2) and section 106(f).

(4) Dismissal.--

(A) In general.--Except as provided under subsection

(d)(2), no judgment other than a judgment for dismissal may be entered in any action asserting an asbestos claim

(including any claim described in paragraph (2)) in any Federal or State court on or after the date of enactment of this Act.

(B) Dismissal on motion.--A court may dismiss any action asserting an asbestos claim (including any claim described in paragraph (2)) on--

(i) motion by any party to such action; or

(ii) its own motion.

(C) Denial of motion.--If a court denies a motion to dismiss under subparagraph (B)(i), it shall stay further proceedings in any such action until final disposition of any appeal taken under this Act.

(D) Exception for pending claims in court.--

(i) In general.--Except as provided under subsection (d)(2) and clause (ii) of this subparagraph, an action asserting an asbestos claim that is pending on the date of enactment of this Act in any Federal or State court may not be dismissed under subparagraph (A), but any stay shall continue in effect, if the plaintiff (or the personal representative of the plaintiff, if the plaintiff is deceased or incompetent) in such action has filed a claim, or is still entitled under section 113(b) to file a claim, with the Fund with respect to the disease, condition, or injury forming the basis of such action.

(ii) Dismissal allowed if claim is adjudicated.--An action exempt from dismissal under clause (i) shall be dismissed if--

(I) the plaintiff's claim under the Fund has been finally adjudicated, and--

(aa) the award, if any, to the plaintiff from the Fund has been paid in whole or in part; or

(bb) the plaintiff has been determined to be eligible for medical monitoring;

(II) the plaintiff's claim under the Fund has been finally adjudicated and the claimant is not entitled to receive a monetary award or medical monitoring under subtitle D of title I;

(III) the plaintiff's claim has been resolved and paid in full under section 106(f);

(IV) after the Administrator certifies to Congress that the Fund has become operational and paying all valid asbestos claims at a reasonable rate, the plaintiff's claim is pending in any venue other than a venue described under section 405(h)(3); or

(V) before the Administrator certifies to Congress that the Fund has become operational and paying all valid asbestos claims at a reasonable rate, the plaintiff's claim--

(aa) is subject to section 106(f)(3); and

(bb) would not be permitted to proceed in the venue in which that claim is pending under such paragraph.

(E) Notice.--A claimant shall provide notice to the Administrator of any pending action involving an asbestos claim in any Federal or State court in which such claimant is a plaintiff. The Administrator shall send notice to the appropriate Federal or State court of any adjudication of any claim with the Fund filed by a plaintiff in an action that has been stayed under subparagraph (D)(i).

(F) Rule of construction.--Nothing in this paragraph shall be construed to limit dismissal, at any time, of a claim pending in Federal or State court for reasons independent of the enactment of this Act.

(5) Removal.--

(A) In general.--If an action in any State court under paragraph (3) is preempted, barred, or otherwise precluded under this Act, and not dismissed, or if an order entered after the date of enactment of this Act purporting to enter judgment or deny review is not rescinded and replaced with an order of dismissal within 30 days after the filing of a motion by any party to the action advising the court of the provisions of this Act, any party may remove the case to the district court of the United States for the district in which such action is pending.

(B) Time limits.--For actions originally filed after the date of enactment of this Act, the notice of removal shall be filed within the time limits specified in section 1441(b) of title 28, United States Code.

(C) Procedures.--The procedures for removal and proceedings after removal shall be in accordance with sections 1446 through 1450 of title 28, United States Code, except as may be necessary to accommodate removal of any actions pending

(including on appeal) on the date of enactment of this Act.

(D) Review of remand orders.--

(i) In general.--Section 1447 of title 28, United States Code, shall apply to any removal of a case under this section, except that notwithstanding subsection (d) of that section, a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand an action to the State court from which it was removed if application is made to the court of appeals not less than 7 days after entry of the order.

(ii) Time period for judgment.--If the court of appeals accepts an appeal under clause (i), the court shall complete all action on such appeal, including rendering judgment, not later than 60 days after the date on which such appeal was filed, unless an extension is granted under clause (iii).

(iii) Extension of time period.--The court of appeals may grant an extension of the 60-day period described in clause

(ii) if--

(I) all parties to the proceeding agree to such extension, for any period of time; or

(II) such extension is for good cause shown and in the interests of justice, for a period not to exceed 10 days.

(iv) Denial of appeal.--If a final judgment on the appeal under clause (i) is not issued before the end of the period described in clause (ii), including any extension under clause (iii), the appeal shall be denied.

(E) Jurisdiction.--The jurisdiction of the district court shall be limited to--

(i) determining whether removal was proper; and

(ii) determining, based on the evidentiary record, whether the claim presented is preempted, barred, or otherwise precluded under this Act.

(6) Credits.--

(A) In general.--If, notwithstanding the express intent of Congress stated in this section, any court finally determines for any reason that an asbestos claim, including a claim described under paragraph (2), is not barred under this subsection and is not subject to the exclusive remedy or preemption provisions of this section, then any participant required to satisfy a final judgment executed with respect to any such claim may elect to receive a credit against any assessment owed to the Fund equal to the amount of the payment made with respect to such executed judgment.

(B) Requirements.--The Administrator shall require participants seeking credit under this paragraph to demonstrate that the participant--

(i) timely pursued all available remedies, including remedies available under this paragraph to obtain dismissal of the claim; and

(ii) notified the Administrator at least 20 days before the expiration of any period within which to appeal the denial of a motion to dismiss based on this section.

(C) Information.--The Administrator may require a participant seeking credit under this paragraph to furnish such further information as is necessary and appropriate to establish eligibility for, and the amount of, the credit.

(D) Intervention.--The Administrator may intervene in any action in which a credit may be due under this paragraph.

SEC. 404. EFFECT ON INSURANCE AND REINSURANCE CONTRACTS.

(a) Erosion of Insurance Coverage Limits.--

(1) Definitions.--In this section, the following definitions shall apply:

(A) Deemed erosion amount.--The term ``deemed erosion amount'' means the amount of erosion deemed to occur at enactment under paragraph (2).

(B) Early sunset.--The term ``early sunset'' means an event causing termination of the program under section 405(g) which relieves the insurer participants of paying some portion of the aggregate payment level of $46,025,000,000 required under section 212(a)(2)(A).

(C) Earned erosion amount.--The term ``earned erosion amount'' means, in the event of any early sunset under section 405(g), the percentage, as set forth in the following schedule, depending on the year in which the defendant participants' funding obligations end, of those amounts which, at the time of the early sunset, a defendant participant has paid to the fund and remains obligated to pay into the fund.

Year After Enactment In Which Defendant Participant's Funding

Obligation Ends: Applicable 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 ....

(D) Remaining aggregate products limits.--The term

``remaining aggregate products limits'' means aggregate limits that apply to insurance coverage granted under the

``products hazard'', ``completed operations hazard'', or

``Products--Completed Operations Liability'' in any comprehensive general liability policy issued between calendar years 1940 and 1986 to cover injury which occurs in any State, as reduced by--

(i) any existing impairment of such aggregate limits as of the date of enactment of this Act; and

(ii) the resolution of claims for reimbursement or coverage of liability or paid or incurred loss for which notice was provided to the insurer before the date of enactment of this Act.

(E) Scheduled payment amounts.--The term ``scheduled payment amounts'' means the future payment obligation to the Fund under this Act from a defendant participant in the amount established under sections 203 and 204.

(F) Unearned erosion amount.--The term ``unearned erosion amount'' means, in the event of any early sunset under section 405(g), the difference between the deemed erosion amount and the earned erosion amount.

(2) Quantum and timing of erosion.--

(A) Erosion upon enactment.--The collective payment obligations to the Fund of the insurer and reinsurer participants as assessed by the Administrator shall be deemed as of the date of enactment of this Act to erode remaining aggregate products limits available to a defendant participant only in an amount of 38.1 percent of each defendant participant's scheduled payment amount.

(B) No assertion of claim.--No insurer or reinsurer may assert any claim against a defendant participant or captive insurer for insurance, reinsurance, payment of a deductible, or retrospective premium adjustment arising out of that insurer's or reinsurer's payments to the Fund or the erosion deemed to occur under this section.

(C) Policies without certain limits or with exclusion.--Except as provided under subparagraph (E), nothing in this section shall require or permit the erosion of any insurance policy or limit that does not contain an aggregate products limit, or that contains an asbestos exclusion.

(D) Treatment of consolidation election.--If an affiliated group elects consolidation as provided in section 204(f), the total erosion of limits for the affiliated group under paragraph (2)(A) shall not exceed 38.1 percent of the scheduled payment amount of the single payment obligation for the entire affiliated group. The total erosion of limits for any individual defendant participant in the affiliated group shall not exceed its individual share of 38.1 percent of the affiliated group's scheduled payment amount, as measured by the individual defendant participant's percentage share of the affiliated group's prior asbestos expenditures.

(E) Rule of construction.--Notwithstanding any other provision of this section, nothing in this Act shall be deemed to erode remaining aggregate products limits of a defendant participant that can demonstrate by a preponderance of the evidence that 75 percent of its prior asbestos expenditures were made in defense or satisfaction of asbestos claims alleging bodily injury arising exclusively from the exposure to asbestos at premises owned, rented, or controlled by the defendant participant (a ``premises defendant''). In calculating such percentage, where expenditures were made in defense or satisfaction of asbestos claims alleging bodily injury due to exposure to the defendant participant's products and to asbestos at premises owned, rented, or controlled by the defendant participant, half of such expenditures shall be deemed to be for such premises exposures. If a defendant participant establishes itself as a premises defendant, 75 percent of the payments by such defendant participant shall erode coverage limits, if any, applicable to premises liabilities under applicable law.

(3) Method of erosion.--

(A) Allocation.--The amount of erosion allocated to each defendant participant shall be allocated among periods in which policies with remaining aggregate product limits are available to that defendant participant pro rata by policy period, in ascending order by attachment point.

(B) Other erosion methods.--

(i) In general.--Notwithstanding subparagraph (A), the method of erosion of any remaining aggregate products limits which are subject to--

(I) a coverage-in-place or settlement agreement between a defendant participant and 1 or more insurance participants as of the date of enactment; or

(II) a final and nonappealable judgment as of the date of enactment or resulting from a claim for coverage or reimbursement pending as of such date, shall be as specified in such agreement or judgment with regard to erosion applicable to such insurance participants' policies.

(ii) Remaining limits.--To the extent that a final nonappealable judgment or settlement agreement to which an insurer participant and a defendant participant are parties in effect as of the date of enactment of this Act extinguished a defendant participant's right to seek coverage for asbestos claims under an insurer participant's policies, any remaining limits in such policies shall not be considered to be remaining aggregate products limits under subsection

(a)(1)(A).

(4) Restoration of aggregate products limits upon early sunset.--

(A) Restoration.--In the event of an early sunset, any unearned erosion amount will be deemed restored as aggregate products limits available to a defendant participant as of the date of enactment.

(B) Method of restoration.--The unearned erosion amount will be deemed restored to each defendant participant's policies in such a manner that the last limits that were deemed eroded at enactment under this subsection are deemed to be the first limits restored upon early sunset.

(C) Tolling of coverage claims.--In the event of an early sunset, the applicable statute of limitations and contractual provisions for the filing of claims under any insurance policy with restored aggregate products limits shall be deemed tolled after the date of enactment through the date 6 months after the date of early sunset.

(5) Payments by defendant participant.--Payments made by a defendant participant shall be deemed to erode, exhaust, or otherwise satisfy applicable self-insured retentions, deductibles, retrospectively rated premiums, and limits issued by nonparticipating insolvent or captive insurance companies. Reduction of remaining aggregate limits under this subsection shall not limit the right of a defendant participant to collect from any insurer not a participant.

(6) Effect on other insurance claims.--Other than as specified in this subsection, this Act does not alter, change, modify, or affect insurance for claims other than asbestos claims.

(b) Dispute Resolution Procedure.--

(1) Arbitration.--The parties to a dispute regarding the erosion of insurance coverage limits under this section may agree in writing to settle such dispute by arbitration. Any such provision or agreement shall be valid, irrevocable, and enforceable, except for any grounds that exist at law or in equity for revocation of a contract.

(2) Title 9, united states code.--Arbitration of such disputes, awards by arbitrators, and confirmation of awards shall be governed by title 9, United States Code, to the extent such title is not inconsistent with this section. In any such arbitration proceeding, the erosion principles provided for under this section shall be binding on the arbitrator, unless the parties agree to the contrary.

(3) Final and binding award.--An award by an arbitrator shall be final and binding between the parties to the arbitration, but shall have no force or effect on any other person. The parties to an arbitration may agree that in the event a policy which is the subject matter of an award is subsequently determined to be eroded in a manner different from the manner determined by the arbitration in a judgment rendered by a court of competent jurisdiction from which no appeal can or has been taken, such arbitration award may be modified by any court of competent jurisdiction upon application by any party to the arbitration. Any such modification shall govern the rights and obligations between such parties after the date of such modification.

(1) In general.--No insurance company or reinsurance company that is not a participant, other than a captive insurer, shall be entitled to claim that payments to the Fund erode, exhaust, or otherwise limit the nonparticipant's insurance or reinsurance obligations.

(2) Other claims.--Nothing in this Act shall preclude a participant from pursuing any claim for insurance or reinsurance from any person that is not a participant other than a captive insurer.

(d) Finite Risk Policies Not Affected.--

(1) In general.--Notwithstanding any other provision of this Act, except subject to section 212(a)(1)(D), this Act shall not alter, affect or impair any rights or obligations of--

(A) any party to an insurance contract that expressly provides coverage for governmental charges or assessments imposed to replace insurance or reinsurance liabilities in effect on the date of enactment of this Act; or

(B) subject to paragraph (2), any person with respect to any insurance purchased by a participant after December 31, 1990, that expressly (but not necessarily exclusively) provides coverage for asbestos liabilities, including those policies commonly referred to as ``finite risk'' policies.

(2) Limitation.--No person may assert that any amounts paid to the Fund in accordance with this Act are covered by any policy described under paragraph (1)(B) purchased by a defendant participant, unless such policy specifically provides coverage for required payments to a Federal trust fund established by a Federal statute to resolve asbestos injury claims.

(e) Effect on Certain Insurance and Reinsurance Claims.--

(1) No coverage for fund assessments.--Subject to section 212(a)(1)(D), no participant or captive insurer may pursue an insurance or reinsurance claim against another participant or captive insurer for payments to the Fund required under this Act, except under a written agreement specifically providing insurance, reinsurance, or other reimbursement for required payments to a Federal trust fund established by a Federal statute to resolve asbestos injury claims or, where applicable, under finite risk policies under subsection (d).

(2) Certain insurance assignments voided.--Any assignment of any rights to insurance coverage for asbestos claims to any person who has asserted an asbestos claim before the date of enactment of this Act, or to any trust, person, or other entity not part of an affiliated group as defined in section 201(1) of this Act established or appointed for the purpose of paying asbestos claims which were asserted before such date of enactment, or by any Tier I defendant participant, before any sunset of this Act, shall be null and void. This subsection shall not void or affect in any way any assignments of rights to insurance coverage other than to asbestos claimants or to trusts, persons, or other entities not part of an affiliated group as defined in section 201(1) of this Act established or appointed for the purpose of paying asbestos claims, or by Tier I defendant participants.

(3) Insurance claims preserved.--Notwithstanding any other provision of this Act, this Act shall not alter, affect, or impair any rights or obligations of any person with respect to any insurance or reinsurance for amounts that any person pays, has paid, or becomes legally obligated to pay in respect of asbestos or other claims, including claims filed, pursued, or revived under section 405(h), except to the extent that--

(A) such claims are preempted, barred, or superseded by section 403;

(B) any such rights or obligations of such person with respect to insurance or reinsurance are prohibited by paragraph (1) or (2) of subsection (e); or

(C) the limits of insurance otherwise available to such participant in respect of asbestos claims are deemed to be eroded under subsection (a).

SEC. 405. ANNUAL REPORT OF THE ADMINISTRATOR AND SUNSET OF

THE ACT.

(a) In General.--The Administrator shall submit an annual report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on the operation of the Asbestos Injury Claims Resolution Fund within 6 months after the close of each fiscal year.

(b) Contents of Report.--The annual report submitted under this subsection shall include an analysis of--

(1) the claims experience of the program during the most recent fiscal year, including--

(A) the number of claims made to the Office and a description of the types of medical diagnoses and asbestos exposures underlying those claims;

(B) the number of claims denied by the Office and a description of the types of medical diagnoses and asbestos exposures underlying those claims, and a general description of the reasons for their denial;

(D) a summary of the awards made from the Fund, including the amount of the awards; and

(E) for each disease level, a statement of the percentage of asbestos claimants who filed claims during the prior calendar year and were determined to be eligible to receive compensation under this Act, who have received the compensation to which such claimants are entitled according to section 131;

(2) the administrative performance of the program, including--

(A) the performance of the program in meeting the time limits prescribed by law and an analysis of the reasons for any systemic delays;

(B) any backlogs of claims that may exist and an explanation of the reasons for such backlogs;

(D) any other significant factors bearing on the efficiency of the program;

(3) the financial condition of the Fund, including--

(A) statements of the Fund's revenues, expenses, assets, and liabilities;

(B) the identity of all participants, the funding allocations of each participant, and the total amounts of all payments to the Fund;

(C) a list of all financial hardship or inequity adjustments applied for during the fiscal year, and the adjustments that were made during the fiscal year;

(D) a statement of the investments of the Fund; and

(E) a statement of the borrowings of the Fund;

(4) the financial prospects of the Fund, including--

(A) an estimate of the number and types of claims, the amount of awards, and the participant payment obligations for the next fiscal year;

(B) an analysis of the financial condition of the Fund, including an estimation of the Fund's ability to pay claims for the subsequent 5 years in full and over the predicted lifetime of the program as and when required, an evaluation of the Fund's ability to retire its existing debt and assume additional debt, and an evaluation of the Fund's ability to satisfy other obligations under the program; and

(C) a report on any changes in projections made in earlier annual reports or sunset analyses regarding the Fund's ability to meet its financial obligations;

(5) a summary of any legal actions brought or penalties imposed under section 223, any referrals made to law enforcement authorities under section 408 (a) and (b), and any contributions to the Fund collected under section 408(e);

(6) any recommendations from the Advisory Committee on Asbestos Disease Compensation and the Medical Advisory Committee of the Fund to improve the diagnostic, exposure, and medical criteria so as to pay those claimants who suffer from diseases or conditions for which exposure to asbestos was a substantial contributing factor;

(7) a summary of the results of audits conducted under section 115; and

(8) a summary of prosecutions under section 1348 of title 18, United States Code (as added by this Act).

(c) Certification.--The Administrator shall certify in the annual report required under subsection (a) whether, in the best judgment of the Administrator, the Fund will have sufficient resources for the fiscal year in which the report is issued to make all required payments--

(1) with respect to all claims determined eligible for compensation that have been filed and that the Administrator projects will be filed with the Office for the fiscal year; and

(2) to satisfy the Fund's debt repayment obligation, administrative costs, and other financial obligations.

(d) Claims Analysis and Verification of Unanticipated Claims.--

(1) In general.--If the Administrator concludes, on the basis of the annual report submitted under this section, that--

(A) the average number of claims that qualify for compensation under a claim level or designation exceeds 125 percent of the number of claims expected to qualify for compensation under that claim level or designation in the most recent Congressional Budget Office estimate of asbestos-injury claims for any 3-year period, the Administrator shall conduct a review of a statistically significant sample of claims qualifying for compensation under the appropriate claim level or designation; or

(B) the average number of claims that qualify for compensation under a claim level or designation is less than 75 percent of the number of claims expected to qualify for compensation under that claim level or designation in the most recent Congressional Budget Office estimate of asbestos-injury claims for any 3-year period, the Administrator shall conduct a review of a statistically significant sample of claims deemed ineligible for compensation under the appropriate claim level or designation.

(2) Determinations.--The Administrator shall examine the best available medical evidence and any recommendation made under subsection (b)(5) in order to determine which 1 or more of the following is true:

(A) Without a significant number of exceptions, all of the claimants who qualified for compensation under the claim level or designation suffer from an injury or disease for which exposure to asbestos was a substantial contributing factor.

(B) A significant number of claimants who qualified for compensation under the claim level or designation do not suffer from an injury or disease for which exposure to asbestos was a substantial contributing factor.

(C) A significant number of claimants who were denied compensation under the claim level of designation did suffer from an injury or disease for which exposure to asbestos was a substantial contributing factor.

(D) The Congressional Budget Office projections underestimated or overestimated the actual number of persons who suffer from an injury or disease for which exposure to asbestos was a substantial contributing factor.

(3) Recommendations concerning claims criteria.--If the Administrator determines that a significant number of the claimants who qualified for compensation under the claim level under review do not suffer from an injury or disease for which exposure to asbestos was a substantial contributing factor, or that a significant number of the claimants who were denied compensation under the claim level under review suffered from an injury or disease for which exposure to asbestos was a substantial contributing factor, the Administrator shall recommend to Congress, under subsection

(f), changes to the compensation criteria in order to ensure that the Fund provides compensation for injury or disease for which exposure to asbestos was a substantial contributing factor, but does not provide compensation to claimants who do not suffer from an injury or disease for which asbestos exposure was a substantial contributing factor.

(e) Recommendations of Administrator and Advisory Committee.--

(1) Referral.--If the Administrator recommends changes to this Act under subsection (d), the recommendations and accompanying analysis shall be referred to the Advisory Committee on Asbestos Disease Compensation established under section 102 (in this subsection referred to as the ``Advisory Committee'').

(2) Advisory committee recommendations.--The Advisory Committee shall hold expedited public hearings on the alternatives and recommendations of the Administrator and make its own recommendations for reform of the program under titles I and II.

(3) Transmittal to congress.--Not later than 90 days after receiving the recommendations of the Administrator, the Advisory Committee shall transmit the recommendations of the Administrator and the recommendations of the Advisory Committee to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives.

(f) Shortfall Analysis.--

(1) In general.--

(A) Analysis.--If the Administrator concludes, at any time, that the Fund may not be able to pay claims as such claims become due at any time within the next 5 years and to satisfy its other obligations, the Administrator shall prepare an analysis of the reasons for the situation, an estimation of when the Fund will no longer be able to pay claims as such claims become due, a description of the range of reasonable alternatives for responding to the situation, 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 section 121 that the Administrator believes may be necessary to protect the Fund. The Administrator shall submit such analysis to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives. Any recommendations made by the Administrator for changes to the program shall, in addition, be referred to the Advisory Committee on Asbestos Disease Compensation established under section 102 for review.

(B) Range of alternatives.--The range of alternatives under subparagraph (A) may include--

(i) termination of the program set forth in titles I and II of this Act in its entirety;

(ii) reform of the program set forth in titles I and II of this Act (including changes in the diagnostic, exposure, or medical criteria, changes in the enforcement or application of those criteria, enhancement of enforcement authority, changes in the timing of payments, changes in contributions by defendant participants, insurer participants (or both such participants), or changes in award values); or

(iii) any measure that the Administrator considers appropriate.

(C) Insurer shortfall assessments.--Beginning in year 6 of the life of the Fund, if the Administrator determines that a shortfall in payment of the annual amounts required to be paid by insurer participants under section 212(a)(3)(C) is the substantial factor that would cause the Administrator to recommend the termination of this Act under subsection (g), then the Administrator may impose shortfall assessments on insurer participants in addition to the payments imposed under section 212, except that the Administrator shall not impose such assessments if the additional amounts would not be sufficient to permit the Administrator to avoid recommending termination of this Act. During any given year, the total of such shortfall assessments shall not exceed the amount by which, during the prior year, total payments by insurer participants fell short of the aggregate amounts required to be paid under section 212(a)(3)(C). Shortfall assessments shall be allocated among insurer participants using the methodology adopted by the Asbestos Insurers Commission under section 212(a)(1)(B).

(2) Considerations.--In formulating recommendations, the Administrator shall take into account the reasons for any shortfall, actual or projected, which may include--

(A) financial factors, including return on investments, borrowing capacity, interest rates, ability to collect contributions, and other relevant factors;

(B) the operation of the Fund generally, including administration of the claims processing, the ability of the Administrator to collect contributions from participants, potential problems of fraud, the adequacy of the criteria to rule out idiopathic mesothelioma, and inadequate flexibility to extend the timing of payments;

(C) the appropriateness of the diagnostic, exposure, and medical criteria, including the adequacy of the criteria to rule out idiopathic mesothelioma;

(D) the actual incidence of asbestos-related diseases, including mesothelioma, based on epidemiological studies and other relevant data;

(E) compensation of diseases with alternative causes; and

(F) other factors that the Administrator 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, including paying in full all claims resolved at the time the report is prepared. Any plan under this paragraph shall provide for priority in payment to the claimants with the most serious illnesses.

(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.

(g) Sunset of Act.--

(1) In general.--

(A) Termination.--Subject to paragraph (4), titles I

(except subtitle A) and II and sections 403 and 404(e)(2) shall terminate as provided under paragraph (2), if--

(i) the Administrator has begun the processing of claims; and

(ii) as part of the review conducted to prepare an annual report under this section, the Chief Financial Officer of the Department of Labor, giving due consideration to the audit conducted under subsection (h), determines that if any additional claims are resolved, the Fund will not have sufficient nontaxpayer resources and borrowing authorized under section 221 when needed to pay 100 percent of all resolved claims while also meeting all other obligations of the Fund under this Act, including the payment of--

(I) debt repayment obligations; and

(II) remaining obligations to the asbestos trust of a debtor and the class action trust.

(B) Remaining obligations.--For purposes of subparagraph

(A)(ii)(II), the remaining obligations to the asbestos trust of the debtor and the class action trust shall be determined by multiplying the amount of assets transferred to the Fund by such debtor or class action trust by the applicable percentage set forth in the following schedule depending on the year in which a termination shall take effect under paragraph (2). The applicable percentage shall be adjusted between years by quarter-annual increments.

Year After Enactment in Which

the Termination is Effective Applicable Percentage:

1........................................................100.00 ....

2.........................................................93.95 ....

3.........................................................87.98 ....

4.........................................................82.40 ....

5.........................................................76.97 ....

6.........................................................71.66 ....

7.........................................................66.50 ....

8.........................................................61.48 ....

9.........................................................56.61 ....

10........................................................52.01 ....

11........................................................47.65 ....

12........................................................43.52 ....

13........................................................39.62 ....

14........................................................35.96 ....

15........................................................32.55 ....

16........................................................29.36 ....

17........................................................26.39 ....

18........................................................23.65 ....

19........................................................21.11 ....

20........................................................18.76 ....

21........................................................16.62 ....

22........................................................14.66 ....

23........................................................12.86 ....

24........................................................11.24 ....

25.........................................................9.78 ....

26.........................................................8.48 ....

27.........................................................7.32 ....

28.........................................................6.29 ....

29.........................................................5.37 ....

30.........................................................4.55 ....

31.........................................................3.83 ....

32.........................................................3.20 ....

33.........................................................2.66 ....

34.........................................................2.18 ....

35.........................................................1.77 ....

36.........................................................1.42 ....

37.........................................................1.13 ....

38.........................................................0.89 ....

39.........................................................0.70 ....

40.........................................................0.54 ....

41.........................................................0.40 ....

42.........................................................0.29 ....

43.........................................................0.19 ....

44.........................................................0.12 ....

45.........................................................0.05 ....

46 and thereafter..........................................0.00 ....

(2) Effective date of termination.--A termination under paragraph (1) shall take effect 180 days after the date of a determination of the Administrator under paragraph (1) and shall apply to all asbestos claims that have not been resolved by the Fund as of the date of the determination.

(3) Resolved claims.--If a termination takes effect under this subsection, all resolved claims shall be paid in full by the Fund.

(4) Extinguished claims.--A claim that is extinguished under the statute of limitations provisions in section 113(b) is not revived at the time of sunset under this subsection.

(5) Continued funding.--If a termination takes effect under this subsection, 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 necessary for the Fund to pay claims that have been resolved as of the date of termination, pay the Fund's debt and obligations to the asbestos trusts and class action trust, and support the Fund's continued operation as needed to pay such claims, debt, and obligations, the Administrator may reduce such payments. Any such reductions shall be allocated among participants in approximately the same proportion as the liability under subtitles A and B of title II.

(6) Sunset claims.--

(A) Definitions.--In this paragraph--

(i) the term ``sunset claims'' means claims filed with the Fund, but not yet resolved, when this Act has terminated; and

(ii) the term ``sunset claimants'' means persons asserting sunset claims.

(B) In general.--If a termination takes effect under this subsection, the applicable statute of limitations for the filing of sunset claims under subsection (h) shall be tolled for any past or pending sunset claimants while such claimants were pursuing claims filed under this Act. For those claimants who decide to pursue a sunset claim in accordance with subsection (h), 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 accordance with subsection (h).

(7) Establishment of master asbestos trust.--

(A) Creation.--Within 120 days after the determination of the Administrator under paragraph (1), the Administrator shall create a trust to be the successor to the asbestos trusts and any class action trust, to receive funds equal to the amount determined by the Administrator to be necessary to pay the remaining aggregate obligations to the asbestos trusts and any class action trust under paragraph (1)

(A)(iii) and (B), and to use such funds for the exclusive purpose of providing benefits in accordance with the terms of this paragraph to persons who would have held valid asbestos claims against the asbestos trusts or any class action trust had this Act not been enacted and to otherwise defray the reasonable expenses of administering the master trust.

(B) Jurisdiction.--The United States District Court for the District of Columbia shall have exclusive jurisdiction, without regard to amount in controversy, over the master trust and all civil actions involving the application and construction of this subparagraph and the trust documents, including any action for the payment of benefits due under the terms of this subparagraph after exhaustion of trust remedies and any action for breach of fiduciary duty on the part of any fiduciary of the master trust.

(C) Trustees.--The district court shall appoint, upon petition by the Administrator after consultation with the Advisory Committee, 3 trustees to administer the master trust. Each trustee, and any successor to each trustee, must be independent, free of any adverse interest and have sufficient qualifications and experience to fulfill the responsibilities described in this section.

(D) Trust advisory committee.--The Administrator, in consultation with the Advisory Committee, shall appoint 3 persons to represent the interests of trust beneficiaries as members of a trust advisory committee to consult with and advise the trustees respecting the administration of the master trust and resolution of asbestos claims. At least 1 of the members of the trust advisory committee shall be selected from among individuals recommended by recognized national labor federations, and at least 1 of the members of the trust advisory committee shall be experienced in representing the interests of trust beneficiaries.

(E) Legal representative.--The district court shall appoint, upon petition by the Administrator after consultation with the Advisory Committee, a legal representative of persons who may in the future have claims against the master trust for the purpose of protecting the rights of such persons respecting the master trust and consulting with and advising the trustees respecting the administration of the master trust and resolution of asbestos claims. The legal representative shall have standing to appear and be heard as a representative of the future asbestos claimants in any civil action before the district court relating to the master trust. The legal representative shall not represent the interests of any person who has filed a claim for benefits against the master trust with respect to such claim.

(F) Trust documents.--The Administrator, in consultation with the Advisory Committee, shall create such trust documents as may be necessary to create and govern the operations of the master trust. The trust documents shall contain provisions that--

(i) address the payment of compensation to and reimbursement of necessary and reasonable expenses of the trustees, trust advisory committee members and legal representative, and appointment of successors to such persons, subject to approval by the district court in the case of successors to the trustees and legal representative; and

(ii) provide for the master trust's obligation to defend and indemnify the Administrator, trustees, members of the trust advisory committee, legal representative and their respective successors against and from legal actions and related losses to the extent that a corporation is permitted under the laws of Delaware to defend and indemnify its officers and directors.

(G) Duty of trustees.--The trustees shall administer the master trust in accordance with the terms of this subparagraph and the Trust Documents for the exclusive purpose of providing benefits to persons with valid claims against the master trust and otherwise defraying the reasonable expenses of administering the master trust, and shall manage and invest the assets of the trust with the care, skill, prudence, and diligence, under like circumstances prevailing at the time, that a prudent person acting in like capacity and manner would use.

(H) Claims resolution procedures.--The trustees, in consultation with the trust advisory committee and the legal representative, shall adopt claims resolution procedures that provide for fair and expeditious payment of benefits to all persons described in subparagraph (A). The claims resolution procedures adopted and implemented by the trustees shall contain--

(i) pro rata distributions of award amounts that are subject to adjustment, if necessary, based on periodic evaluations of the value of the master trust's assets and estimates of the numbers and values of present and future asbestos claims for benefits that may be awarded by the master trust and other mechanisms that provide reasonable assurance that the master trust will value, and be in a financial position to pay, similarly situated asbestos claims presented to it that involve similar diseases in substantially the same manner;

(ii) proof requirements, claim submission procedures, and claim evaluation and allowance procedures that provide for expeditious filing and evaluation of all asbestos claims submitted to the master trust;

(iii) provisions for priority review and payment of claimants whose circumstances require expedited evaluation and compensation;

(iv) exposure requirements for asbestos claimants to qualify for a remedy that fairly reflect the legal responsibility of at least 1 entity whose liabilities were channeled to an asbestos trust or any class action trust; and

(v) review and dispute resolution procedures for disputes regarding the master trust's disallowance or other treatment of claims for benefits.

(I) Medical criteria.--The trustees, in consultation with the trust advisory committee and the legal representative, shall adopt and maintain uniform medical criteria that fairly reflect a current state of applicable law and scientific and medical knowledge. The trustees may adopt the medical criteria of section 121.

(J) Award amounts.--The trustees, in consultation with the trust advisory committee and the legal representative, shall adopt a matrix of award amounts for disease categories that applies to all claimants who qualify for payment under the medical criteria and claims resolution procedures. The trustees may adopt the matrix of award amounts of section 131 or such other matrix that the trustees determine provides similar benefits for similar claims and fairly reflects the liability of the entities whose liabilities were channeled to the asbestos trusts and any class action trust.

(K) Payments to claimants.--The trustees shall pay each qualifying claimant a benefit equal to the product of the master trust payment percentage and the award amount to such claimant. The master trust payment percentage at any given time shall be determined by the trustees based on their periodic evaluation of the master trust's assets and projected claims as described in subparagraph (H)(i).

(L) Amendments.--The trustees, in consultation with the trust advisory committee and legal representative, may amend the trust documents, the claims resolution procedures, the medical criteria and the award matrix to the extent necessary to more effectively and efficiently carry out the purpose of the master trust. If the substantive consolidation of the asbestos trusts and any class action trust effected by this subsection is held to be unconstitutional, the trustees shall adopt amendments to the trust documents, claims resolution procedures, medical criteria and award matrix as may be necessary to bring the master trust in compliance with the Constitution, including if necessary, amendments requiring, for each such trust, separate claims resolution procedures, award amounts and accounting of assets and liabilities.

(8) Payment to master trust.--The amount determined by the Administrator to be necessary to pay the remaining aggregate obligations to the asbestos trusts and any class action trust under paragraph (1) (A)(iii) and (B) shall be transferred to the master trust within 90 days of termination under this subsection. Any individual with a valid asbestos claim against any asbestos trust or class action trust shall be entitled to seek relief on account of such claim from the master trust described in paragraph (7) in accordance with that paragraph.

(h) Nature of Claim After Sunset.--

(1) In general.--

(A) Relief.--

(i) In general.--On and after the date of termination under subsection (g), any individual with an asbestos claim who has not previously 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 (g), except that any individual who would have held a valid asbestos claim against any asbestos trust or class action trust had this Act not been enacted may obtain relief on account of such claim only from the master trust described in subsection (g)(7) in accordance with the provisions of such subsection.

(ii) Rule of construction.--This subparagraph shall not be construed as creating a new Federal cause of action.

(B) Resolved claims.--An individual who has had a claim resolved by the Fund may not pursue a court action, except that an individual who received an award for a nonmalignant disease (Levels I through V) from the Fund may assert a claim for a subsequent or progressive disease under this subsection, unless the disease was diagnosed or the claimant had discovered facts that would have led a reasonable person to obtain such a diagnosis before the date on which the previous claim against the Fund was disposed.

(C) Mesothelioma claim.--An individual who received an award for a nonmalignant or malignant disease (except mesothelioma) (Levels I through VIII) 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 which the nonmalignant or other malignant claim was disposed.

(2) Exclusive remedy.--As of the effective date of a termination of this Act under subsection (g), 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 date of enactment of this Act or of the termination 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.--

(A) In general.--Actions under paragraph (1) may be brought in--

(i) any Federal district court;

(ii) any State court in the State where the claimant resides; or

(iii) any State court in a State where the asbestos exposure occurred.

(B) Defendants not found.--If any defendant cannot be found in the State described in clause (ii) or (iii) of subparagraph (A), the claim may be pursued only against that defendant in the Federal district court or the State court located within any State in which the defendant may be found.

(D) State venue requirements.--Nothing in this paragraph shall preempt or supersede any State's law relating to venue requirements within that State which are more restrictive.

(4) Class action trusts.--Notwithstanding any other provision of this section, after the assets of any class action trust have been transferred to the Fund in accordance with section 203(b)(5), no asbestos claim may be maintained with respect to asbestos liabilities arising from the operations of a person with respect to whose liabilities for asbestos claims a class action trust has been established, whether such claim names the person or its successors or affiliates as defendants.

(5) Expert witnesses.--If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue in an action permitted under paragraph (1), a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if--

(A) the testimony is based upon sufficient facts or data;

(B) the testimony is the product of reliable principles and methods; and

(i) Audit.--Any annual report to Congress required under this section shall be reviewed and certified as fairly representing the financial condition of the Fund by an independent auditor.

SEC. 406. RULES OF CONSTRUCTION RELATING TO LIABILITY OF THE

UNITED STATES GOVERNMENT.

(a) Causes of Actions.--Except as otherwise specifically provided in this Act, nothing in this Act shall be construed as creating a cause of action against the United States Government, any entity established under this Act, or any officer or employee of the United States Government or such entity.

(b) Funding Liability.--Nothing in this Act shall be construed to--

(1) create any obligation of funding from the United States Government, including any borrowing authorized under section 221(b)(2); 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. The payment of any such medical expenses shall not be collateral source compensation as defined under section 134(a).

(b) Healthcare From Provider of Choice.--Nothing in this Act shall be construed to preclude any eligible claimant from receiving healthcare from the provider of their choice.

SEC. 408. VIOLATIONS OF ENVIRONMENTAL HEALTH AND SAFETY

REQUIREMENTS.

(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 Protection Agency under the Toxic Substances Control Act (15 U.S.C. 2601 et seq.), relating to the manufacture, importation, 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 Environmental 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 Administrator receives information concerning conduct occurring after the date of enactment of this Act that may have been a violation of standards issued by the Environmental Protection Agency under 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 Administrator of the Environmental Protection Agency and the United States attorney for possible criminal and civil penalties, including those under section 113 of the Clean Air Act (42 U.S.C. 7413), and to the appropriate State authority with jurisdiction to investigate asbestos matters.

(c) Occupational Exposure.--If the Administrator receives information concerning conduct occurring after the date of enactment of this Act that may have been a violation of standards issued by the Occupational Safety and Health Administration under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), relating to occupational exposure to asbestos, the Administrator shall refer the matter in writing within 30 days after receiving that information and refer the matter to the Secretary of Labor or the appropriate State agency with authority to enforce occupational safety and health standards, for investigation for possible civil or criminal penalties under section 17 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 666).

(d) Enhanced Criminal Penalties for Willful Violations of Occupational Standards for Asbestos.--Section 17(e) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 656(e)) is amended--

(1) by striking ``Any'' and inserting ``(1) Except as provided in paragraph (2), any''; and

(2) by adding at the end the following:

``(2) Any employer who willfully violates any standard issued under section 6 with respect to the control of occupational exposure to asbestos, shall upon conviction be punished by a fine in accordance with section 3571 of title 18, United States Code, or by imprisonment for not more than 5 years, or both, except that if the conviction is for a violation committed after a first conviction of such person, punishment shall be by a fine in accordance with section 3571 of title 18, United States Code, or by imprisonment for not more than 10 years, or both.''.

(e) Contributions to the Asbestos Trust Fund by EPA and OSHA Asbestos Violators.--

(1) In general.--The Administrator shall assess employers or other individuals determined to have violated asbestos statutes, standards, or regulations administered by the Department of Labor, the Environmental Protection Agency, and their State counterparts, for contributions to the Asbestos Injury Claims Resolution Fund (in this section referred to as the ``Fund'').

(2) Identification of violators.--Each year, the Administrator shall--

(A) in consultation with the Assistant Secretary of Labor for Occupational Safety and Health, identify all employers that, during the previous year, were subject to final orders finding that they violated standards issued by the Occupational Safety and Health Administration for control of occupational exposure to asbestos (29 C.F.R. 1910.1001, 1915.1001, and 1926.1101) or the equivalent asbestos standards issued by any State under section 18 of the Occupational Safety and Health Act (29 U.S.C. 668); and

(B) in consultation with the Administrator of the Environmental Protection Agency, identify all employers or other individuals who, during the previous year, were subject to final orders finding that they violated asbestos regulations administered by the Environmental Protection Agency (including the National Emissions Standard for Asbestos established under the Clean Air Act (42 U.S.C. 7401 et seq.), the asbestos worker protection standards established under part 763 of title 40, Code of Federal Regulations, and the regulations banning asbestos promulgated under section 501 of this Act), or equivalent State asbestos regulations.

(3) Assessment for contribution.--The Administrator shall assess each such identified employer or other individual for a contribution to the Fund for that year in an amount equal to--

(A) 2 times the amount of total penalties assessed for the first violation of occupational health and environmental statutes, standards, or regulations;

(B) 4 times the amount of total penalties for a second violation of such statutes, standards, or regulations; and

(4) Liability.--Any assessment under this subsection shall be considered a liability under this Act.

(5) Payments.--Each such employer or other individual assessed for a contribution to the Fund under this subsection shall make the required contribution to the Fund within 90 days of the date of receipt of notice from the Administrator requiring payment.

(6) Enforcement.--The Administrator is authorized to bring a civil action under section 223(c) against any employer or other individual who fails to make timely payment of contributions assessed under this section.

(f) Review of Federal Sentencing Guidelines for Environmental Crimes Related to Asbestos.--Under section 994 of title 28, United States Code, and in accordance with this section, the United States Sentencing Commission shall review and amend, as appropriate, the United States Sentencing Guidelines and related policy statements to ensure that--

(1) appropriate changes are made within the guidelines to reflect any statutory amendments that have occurred since the time that the current guideline was promulgated;

(2) the base offense level, adjustments, and specific offense characteristics contained in section 2Q1.2 of the United States Sentencing Guidelines (relating to mishandling of hazardous or toxic substances or pesticides; recordkeeping, tampering, and falsification; and unlawfully transporting hazardous materials in commerce) are increased as appropriate to ensure that future asbestos-related offenses reflect the seriousness of the offense, the harm to the community, the need for ongoing reform, and the highly regulated nature of asbestos;

(3) the base offense level, adjustments, and specific offense characteristics are sufficient to deter and punish future activity and are adequate in cases in which the relevant offense conduct--

(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 characteristics contained in section 2B1.1 of the United States Sentencing Guidelines related to fraud, deceit, and false statements, adequately take into account that asbestos was involved in the offense, and the possibility of death or serious bodily harm as a result;

(5) the guidelines that apply to organizations in chapter 8 of the United States Sentencing Guidelines are sufficient to deter and punish organizational criminal misconduct that involves the use, handling, purchase, sale, disposal, or storage of asbestos; and

(6) the guidelines that apply to organizations in chapter 8 of the United States Sentencing Guidelines are sufficient to deter and punish organizational criminal misconduct that involves fraud, deceit, or false statements against the Office of Asbestos 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 claimant 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 insurer'' means--

(A) an insurance company, healthcare service contractor, fraternal benefit organization, insurance agent, third-party administrator, insurance support organization, or other person subject to regulation under the laws related to health insurance of any State;

(B) a managed care organization; or

(C) an employee welfare benefit plan regulated 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 Retirement Income Security Act of 1974

(29 U.S.C. 1167)), and a multiple employer welfare arrangement (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 healthcare, including 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.

(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:

``(I) Participation in a medical monitoring program under the Fairness in Asbestos Injury Resolution Act of 2006.''.

(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 2006.''.

(3) Internal revenue code of 1986.--Section 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 2006.''.

TITLE V--ASBESTOS BAN

SEC. 501. PROHIBITION ON ASBESTOS CONTAINING PRODUCTS.

(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'';

and

(2) by adding at the end the following:

``Subtitle B--Ban of Asbestos Containing Products

``SEC. 221. BAN OF ASBESTOS CONTAINING PRODUCTS.

``(a) Definitions.--In this chapter:

``(1) Administrator.--The term `Administrator' means the Administrator of the Environmental Protection Agency.

``(2) Asbestos.--The term `asbestos' includes--

``(A) chrysotile;

``(B) amosite;

``(C) crocidolite;

``(D) tremolite asbestos;

``(E) winchite asbestos;

``(F) richterite asbestos;

``(G) anthophyllite asbestos;

``(H) actinolite asbestos;

``(I) asbestiform amphibole minerals; and

``(J) any of the minerals listed under subparagraphs (A) through (I) that has been chemically treated or altered, and any asbestiform variety, type, or component thereof.

``(3) Asbestos containing product.--The term `asbestos containing product' means any product (including any part) to which asbestos is deliberately or knowingly added or used because the specific properties of asbestos are necessary for product use or function. Under no circumstances shall the term `asbestos containing product' be construed to include products that contain de minimus levels of naturally occurring asbestos as defined by the Administrator not later than 1 year after the date of enactment of this chapter.

``(4) Distribute in commerce.--The term `distribute in commerce'--

``(A) has the meaning given the term in section 3 of the Toxic Substances Control Act (15 U.S.C. 2602); and

``(B) shall not include--

``(i) an action taken with respect to an asbestos containing product in connection with the end use of the asbestos containing product by a person that is an end user, or an action taken by a person who purchases or receives a product, directly or indirectly, from an end user; or

``(ii) distribution of an asbestos containing product by a person solely for the purpose of disposal of the asbestos containing product in compliance with applicable Federal, State, and local requirements.

``(b) In General.--Subject to subsection (c), the Administrator shall promulgate--

``(1) not later than 1 year after the date of enactment of this chapter, proposed regulations that--

``(A) prohibit persons from manufacturing, processing, or distributing in commerce asbestos containing products; and

``(B) provide for implementation of subsections (c) and

(d); and

``(2) not later than 2 years after the date of enactment of this chapter, final regulations that, effective 60 days after the date of promulgation, prohibit persons from manufacturing, processing, or distributing in commerce asbestos containing products.

``(c) Exemptions.--

``(1) In general.--Any person may petition the Administrator for, and the Administrator may grant, an exemption from the requirements of subsection (b), if the Administrator determines that--

``(A) the exemption would not result in an unreasonable risk of injury to public health or the environment; and

``(B) the person has made good faith efforts to develop, but has been unable to develop, a substance, or identify a mineral that does not present an unreasonable risk of injury to public health or the environment and may be substituted for an asbestos containing product.

``(2) Terms and conditions.--Except for an exception authorized under paragraph (3)(A)(i), an exemption granted under this subsection shall be in effect for such period (not to exceed 5 years) and subject to such terms and conditions as the Administrator may prescribe.

``(3) Governmental use.--

``(A) In general.--

``(i) Department of defense.--Nothing in this section or in the regulations promulgated by the Administrator under subsection (b) shall prohibit or limit the manufacture, processing, or distribution in commerce of asbestos containing products by or for the Department of Defense or the use of asbestos containing products by or for the Department of Defense if the Secretary of Defense certifies

(or recertifies within 10 years of a prior certification), and provides a copy of the certification to Congress, that--

``(I) use of asbestos containing product is necessary to the critical functions of the Department, which includes the use of the asbestos containing product in any weaponry, equipment, aircraft, vehicles, or other classes or categories of property which are owned or operated by the Armed Forces of the United States (including the Coast Guard) or by the National Guard of any State and which are uniquely military in nature;

``(II) no reasonably available and equivalent alternatives to the asbestos containing product exist for the intended purpose; and

``(III) use of the asbestos containing product will not result in a known unreasonable risk to health or the environment.

``(ii) National aeronautics and space administration.--The Administrator of the Environmental Protection Agency shall provide an exemption from the requirements of subsection (b), without review or limit on duration, if such exemption for an asbestos containing product is sought by the Administrator of the National Aeronautics and Space Administration and the Administrator of the National Aeronautics and Space Administration certifies, and provides a copy of that certification to Congress, that--

``(I) the asbestos containing product is necessary to the critical functions of the National Aeronautics and Space Administration;

``(II) no reasonable alternatives to the asbestos containing product exist for the intended purpose; and

``(III) the use of the asbestos containing product will not result in an unreasonable risk to health or the environment.

``(B) Administrative procedure act.--Any certification required under subparagraph (A) shall not be subject to chapter 5 of title 5, United States Code (commonly referred to as the `Administrative Procedure Act').

``(4) Specific exemptions.--The following are exempted:

``(A) Asbestos diaphragms for use in the manufacture of chlor-alkali and the products and derivative therefrom.

``(B) Roofing cements, coatings, and mastics utilizing asbestos that is totally encapsulated with asphalt, subject to a determination by the Administrator of the Environmental Protection Agency under paragraph (5).

``(5) Environmental protection agency review.--

``(A) Review in 18 months.--Not later than 18 months after the date of enactment of this chapter, the Administrator of the Environmental Protection Agency shall complete a review of the exemption for roofing cements, coatings, and mastics utilizing asbestos that are totally encapsulated with asphalt to determine whether--

``(i) the exemption would result in an unreasonable risk of injury to public health or the environment; and

``(ii) there are reasonable, commercial alternatives to the roofing cements, coatings, and mastics utilizing asbestos that is totally encapsulated with asphalt.

``(B) Revocation of exemption.--Upon completion of the review, the Administrator of the Environmental Protection Agency shall have the authority to revoke the exemption for the products exempted under paragraph (4)(B), if warranted.

``(d) Disposal.--

``(1) In general.--Except as provided in paragraph (2), not later than 3 years after the date of enactment of this chapter, each person that possesses an asbestos containing product that is subject to the prohibition established under this section shall dispose of the asbestos containing product, by a means that is in compliance with applicable Federal, State, and local requirements.

``(2) Exemption.--Nothing in paragraph (1)--

``(A) applies to an asbestos containing product that--

``(i) is no longer in the stream of commerce; or

``(ii) is in the possession of an end user or a person who purchases or receives an asbestos containing product directly or indirectly from an end user; or

``(B) requires that an asbestos containing product described in subparagraph (A) be removed or replaced.''.

(b) Technical and Conforming Amendments.--The table of contents in section 1 of the Toxic Substances Control Act (15 U.S.C. prec. 2601) is amended--

(1) by inserting before the item relating to section 201 the following:

``Subtitle A--General Provisions'';

and

(2) by adding at the end of the items relating to title II the following:

``Subtitle B--Ban of Asbestos Containing Products

``Sec. 221. Ban of asbestos containing products.''.

SEC. 502. NATURALLY OCCURRING ASBESTOS.

(a) Study.--

(1) In general.--Not later than 12 months after the date of enactment of this Act, the Administrator of the Environmental Protection Agency shall--

(A) conduct a study to assess the risks of exposure to naturally occurring asbestos, including the appropriateness of the existing risk assessment values for asbestos and methods of assessing exposure; and

(B) submit a report that contains a detailed statement of the findings and conclusions of such study to--

(i) the majority and minority leaders of the Senate;

(ii) the Speaker and the minority leader of the House of Representatives; and

(iii) the relevant committees of jurisdiction of the Senate and House of Representatives, including--

(I) the Environment and Public Works Committee of the Senate;

(II) the Appropriations Committee of the Senate;

(III) the Judiciary Committee of the Senate;

(IV) the Energy and Commerce Committee of the House of Representatives;

(V) the Judiciary Committee of the House of Representatives; and

(VI) the Appropriations Committee of the House of Representatives.

(2) Development requirements.--

(A) In general.--Not later than 18 months after the date of enactment of this Act, the Administrator of the Environmental Protection Agency, in consultation with appropriate Federal and State agencies and other interested parties after appropriate notice, shall establish dust management guidelines, and model State regulations that States can choose to adopt, for commercial and residential development, and road construction in areas where naturally occurring asbestos is present and considered a risk. Such dust management guidelines may at a minimum incorporate provisions consistent with the relevant California Code of Regulation

(17 C.C.R. 93105-06).

(B) Dust management guidelines.--Guidelines under this paragraph shall include--

(i) site management practices to minimize the disturbance of naturally occurring asbestos and contain asbestos mobilized from the source at the development site;

(ii) air and soil monitoring programs to assess asbestos exposure levels at the development site and to determine whether asbestos is migrating from the site; and

(iii) appropriate disposal options for asbestos-containing materials to be removed from the site during development.

(b) Testing Protocols.--

(1) In general.--Not later than 18 months after the date of enactment of this Act, the Administrator of the Environmental Protection Agency, in consultation with appropriate State agencies, shall establish comprehensive protocols for testing for the presence of naturally occurring asbestos.

(2) Protocols.--The protocols under this subsection shall address both ambient air monitoring and activity-based personal sampling and include--

(A) suggested sampling devices and guidelines to address the issues of methods comparability, sampler operation, performance specifications, and quality control and quality assurance;

(B) a national laboratory and air sampling accreditation program for all methods of analyses of air and soil for naturally occurring asbestos;

(D) protocols for collecting and analyzing aggregate and soil samples for asbestos content, including proper and consistent sample preparation practices suited to the activity likely to occur on the soils of the study area.

(c) Existing Buildings and Areas.--Not later than 1 year after the date of enactment of this Act, the Administrator of the Environmental Protection Agency shall issue public education materials, recommended best management practices and recommended remedial measures for areas containing naturally occurring asbestos including existing--

(1) schools and parks; and

(2) commercial and residential development.

(d) Mapping.--The Secretary of the Interior shall--

(1) acquire infrared mapping data for naturally occurring asbestos, prioritizing California counties experiencing rapid population growth;

(2) process that data into map images; and

(3) collaborate with the California Geological Survey and any other appropriate State agencies in producing final maps of asbestos zones.

(e) Research Grants.--The Director of the National Institutes of Health shall administer 1 or more research grants to qualified entities for studies that focus on better understanding the health risks of exposure to naturally occurring asbestos. Grants under this subsection shall be awarded through a competitive peer-reviewed, merit-based process.

(f) Task Force Participation.--Representatives of Region IX of the United States Environmental Protection Agency, and the Agency for Toxic Substances and Disease Registry of the United States Department of Health and Human Services shall participate in any task force convened by the State of California to evaluate policies and adopt guidelines for the mitigation of risks associated with naturally occurring asbestos.

(g) Matching Grants.--The Administrator of the Environmental Protection Agency is authorized to award 50 percent matching Federal grants to States and municipalities. Not later than 4 months after the date of enactment of this Act, the Administrator of the Environmental Protection Agency shall establish criteria to award such grants--

(1) for monitoring and remediation of naturally occurring asbestos--

(A) at schools, parks, and other public areas; and

(B) in serpentine aggregate roads generating significant public exposure; and

(2) for development, implementation, and enforcement of State and local dust management regulations concerning naturally occurring asbestos, provided that after the Administrator has issued model State regulations under subsection (a)(2), such State and local regulations shall be at least as protective as the model regulations to be eligible for the matching grants.

(h) Availability of Funds.--An amount of $40,000,000 from the Fund shall be made available to carry out the requirements of this section, including up to $9,000,000 for the Secretary of the Interior to carry out subsection (d), up to $4,000,000 for the Director of the National Institutes of Health to carry out subsection (e), and the remainder for the Administrator of the Environmental Protection Agency, at least $15,000,000 of which shall be used for the matching grants under subsection (g).

(i) Construction.--

(1) Guidelines and protocols.--The guidelines and protocols issued by the Administrator of the Environmental Protection Agency under the specific authorities in subsections (a),

(b), and (c) shall be construed as nonbinding best practices unless adopted as a mandatory requirement by a State or local government. Notwithstanding the preceding sentence, accreditation for testing will not be granted except in accordance with the guidelines issued under subsection

(b)(2)(B).

(2) Federal causes of action.--This section shall not be construed as creating any new Federal cause of action for civil, criminal, or punitive damages.

(3) Federal claims.--This section shall not be construed as creating any new Federal claim for injunctive or declaratory relief against a State, local, or private party.

(4) States and localities.--Nothing in this section shall limit the authority of States or localities concerning naturally occurring asbestos.

Mr. LEAHY. Mr. President, today, I join the chairman of the Judiciary Committee, Senator Specter, in introducing an amended version of S. 852, the Fairness in Asbestos Injury Resolution Act of 2006, the FAIR Act. This legislation enhances our previous trust fund bill by adopting many of the amendments filed in February by Senators on both sides of the aisle. We have incorporated amendments that further protect against fraud and make sure the sickest victims are paid as soon as possible. We added crucial provisions that make the trust fund accessible to victims who were exposed to asbestos during the attacks on the World Trade Center and Hurricanes Katrina and Rita. We clarified the bill language to ensure that inactive dormant claims cannot be revived to overwhelm the trust fund.

This legislation also contains a few additional changes that we believe respond directly to concerns raised by our colleagues during floor debate. The floor amendments incorporated in this bill include, among others, the Kyl funding amendment that will protect small and medium sized businesses. We also addressed the concerns of businesses that currently pay nothing or very little because they are well-

insured. None of these changes undermine the existing guarantee on overall private funding at $140 billion.

Also importantly, we preserved the ability of the existing bankruptcy trusts to continue paying impaired victims while the trust fund becomes operational. This will smooth the transition for victims who were exposed by companies that are currently protected from suit by bankruptcy. And finally, we clarified the statute of limitations for our Nation's war veterans so they will have better access to the trust fund.

None of the additional provisions contained in this substitute diminish the bill's key principle: That the asbestos trust fund will be comprised solely of private money. Nothing in this bill will reduce the protection of victims against insurance subrogation. I am proud to report that we have also maintained our core medical criteria so that those who have been impaired by asbestos exposure will receive compensation appropriate to their injuries.

Earlier this week, we were all saddened to learn of the passing of Judge Edward R. Becker. As many of my colleagues are keenly aware, Judge Becker worked patiently with Senators and all of the stakeholders on this legislation for almost 3 years. We engaged in an exhaustive process of committee hearings, deliberations and negotiations. Judge Becker was crucial to each step in the process. We would not have made the bipartisan progress that this legislation reflects without his tireless efforts.

Unfortunately, time is running out for this session of Congress. I know that some partisans will claim that we should refrain from reaching across the aisle during an election year but this persistent problem compels us to move forward to try and help the thousands of victims of asbestos exposure. I urge the Senate majority leader to give us sufficient floor time to debate and vote on this important legislation on its merits.

______

By Mr. ALLEN (for himself, Mr. Nelson of Nebraska, Mr. Craig, Mr.

Inhofe, Mr. Lott, Mrs. Dole, Mr. Vitter, Mr. Ensign, Mr.

Martinez, Mr. Burr, Mr. Crapo, Mr. Sununu, and Mr. Thune):

S 3275. A bill to amend title 18, United States Code, to provide a national standard in accordance with which nonresidents of a State may carry concealed firearms in the State; to the Committee on the Judiciary.

Mr. ALLEN. Mr. President, I rise today on behalf of myself, my good friend from Nebraska, Senator Nelson, and 11 other Senators--Senators Craig, Inhofe, Lott, Dole, Vitter, Ensign, Martinez, Burr, Crapo, Sununu, and Thune--to introduce legislation to amend title 18, United States Code, to provide a national standard under which nonresidents of a State may carry concealed firearms in the State. The bill is a companion bill to H.R. 4547, which Congressmen Cliff Stearns of Florida and Rick Boucher of Virginia have introduced in the House.

Our bill would allow any person with a valid concealed carry permit or license issued by a State to carry a concealed firearm in any other State if they meet certain criteria. The laws of each State that govern where concealed firearms may be carried would still apply and would be fully respected within its borders. The bill would simply require States to recognize each other's concealed carry permits and licenses, just as they recognize drivers' licenses. It would not create a Federal licensing system.

The right-to-carry movement has enjoyed great success throughout our Nation. To cite just one example, the murder rate in my Commonwealth of Virginia has plunged a dramatic 40 percent since the right-to-carry law that I signed as Governor took effect in 1995.

This is commonsense legislation. It recognizes that Congress has affirmed an individual's right to carry firearms for ``protective purposes in the Gun Control Act, 1968, and in the Firearm Owners' Protection Act, 1986. In addition, last year, when this Congress passed the Protection of Lawful Commerce in Arms Act on a strong bi-partisan vote, we preserved all law-abiding citizens' access to firearms and ammunition for all lawful purposes, including, of course, self-defense.

I urge all my colleagues to join with Senator Nelson and me in cosponsoring this bill to increase the safety of the many law-abiding Americans who have chosen to carry a firearm for protection against criminal attack.

______

By Mr. LUGAR (for himself, Mr. Biden, Mr. Hagel, Mr. Alexander, and Mr. Warner):

S. 3322. A bill to build operational readiness in civilian agencies, and for other purposes; considered and passed.

Mr. LUGAR. Mr. President, this legislation is the result of a conversation begun in 2003 between members of the Senate Foreign Relations Committee and the leadership of the State Department. Since that time, the legislation has gone through a number of evolutions and has passed the committee unanimously both as a freestanding bill and as part of the State Department authorization bill. I am asking the Senate to pass it now as a free-standing bill.

International crises are inevitable, and in most cases, U.S. national security interests will be threatened by sustained instability. The war on terrorism necessitates that we not leave nations crumbling and ungoverned. We have already seen how terrorists can exploit nations afflicted by lawlessness and desperate circumstances. They seek out such places to establish training camps, recruit new members, and tap into a global black market in weapons.

In this international atmosphere, the United States must have the right structures, personnel, and resources in place when an emergency occurs. A delay in our response of a few weeks, or even days, can mean the difference between success and failure. Clearly we need a full range of tools to prevail. Our committee's focus has been on boosting the civilian side of our stabilization and reconstruction capabilities, while encouraging improved mechanisms for civilian and military agencies to work together on these missions.

Over the years, our Government has cobbled together plans, people, and projects to respond to post-conflict situations in the Balkans, in Afghanistan, in Iraq, and elsewhere. The efforts of those engaged have been valiant, but these emergencies have been complex and time sensitive. In my judgment, our ad hoc approach has been inadequate to deal quickly and efficiently with complex emergencies. In turn, our lack of preparation for immediate stabilization contingencies has made our subsequent reconstruction efforts more difficult and expensive.

This legislation builds on legislation, S. 2127, that Senators Biden and Hagel and I introduced in early 2004 to encourage and support a well-organized, sufficiently resourced and strongly led civilian counterpart to the military in post-conflict zones. It is our view that the civilian side needs both operational capability and a significant surge capacity. This legislation gives statutory status to the State Department's Office of the Coordinator of Reconstruction and Stabilization and makes the position of Coordinator subject to the advice and consent of the Senate. The legislation authorizes the establishment of a civilian response corps with both Active-Duty and Reserve components and provides the office flexibility in personnel management, pay, and benefits to build that corps and create surge capacity in an emergency. Finally, it authorizes expenditures for a crisis response fund, for the civilian response corps, and for a substantial training, planning and operational capacity for the office.

The State Department has come a long way in recognizing the role it could and should be playing. It established the Office of the Coordinator of Reconstruction and Stabilization in July of 2004. Under the leadership of Carlos Pascual, the office conducted a government-

wide inventory of the civilian assets that might be available for stabilization and reconstruction tasks in post-conflict zones. It has undertaken the planning necessary to recruit, train, and organize a Reserve corps of civilians for rapid deployment. It also is formulating interagency contingency plans--informed by our past experiences--for countries and regions of the world where the next crisis could suddenly arise.

In December 2005, the President signed a directive putting the Secretary of State in charge of interagency stabilization and reconstruction efforts. Last month, Secretary Rice promised to dedicate 15 of the 100 new positions she is requesting for fiscal year 2007 to the Reconstruction and Stabilization Office. This will increase staff to about 95 individuals, with seconded personnel and contractors included in that count.

Despite this good progress, significant gaps in our capabilities remain. Our legislation calls for a 250-person Active-Duty corps, in addition to the Reserves, made up of both State Department and OSAID employees. Such a corps could be rapidly deployed with the military for both initial assessments and operational purposes. They would be the first civilian team on the ground in post-conflict situations, well in advance of the establishment of an embassy. This Active-Duty corps would be able to do a wide range of civilian jobs that are needed in a post-conflict or otherwise hostile environment.

Such a 250-person corps would be no larger than the typical Army company, but it would be a force multiplier. It would be equipped with the authority and training to take broad operational responsibility for stabilization missions. Establishment of such a corps is a modest investment when seen as part of the overall national security budget. Even in peace time, we maintain Active-Duty military forces of almost 1.4 million men and women who train and plan for the possibility of war. Given how critical post-conflict situations have been to American national security in the last decade, I believe it is reasonable to have a mere 250 civilians who are training for these situations and are capable of being deployed anywhere in the world, at any time they may be needed.

This legislation also calls on the heads of other executive branch agencies to establish personnel exchange programs designed to enhance stabilization and reconstruction capacity. The Departments of Agriculture, Treasury, Commerce, Health and Human Services--indeed virtually all the civilian agencies--can make unique contributions to the overall effort.

Once the Department embraced the concept of organizing and leading the civilian effort, the main roadblock became resources. So far, only about $21 million has been provided for the operations of the office, despite administration requests for substantially more funding. For 2007, the administration has requested a $75 million crisis response fund to be made available as a contingency for stabilization and reconstruction crises. Of this amount, the administration would like to spend $25 million for the organization, training, and emergency deployment of the Reserve component of the response corps. This legislation authorizes the crisis response fund and $80 million for the operations of the new State Department office and the Active-Duty corps, including training, equipment, and travel.

So far, the office has heroically stretched dollars by recruiting personnel on detail from other agencies, taking advantage of DOD-funded training, and getting the State Department to pay for the overhead of new office space from other sources. But such a hand-to-mouth existence has obvious disadvantages. Detailed personnel rarely stay long, and institutional memory becomes short. Relying on DOD funds puts the office in the passenger seat when it should have the resources to pursue uniquely civilian-

oriented goals.

In addition, the crisis response fund outlined in our legislation has not been appropriated. On the Senate side, we were able to secure $20 million for the fund in the fiscal year 2006 Foreign Operations Appropriations bill. The entire amount, however, was eliminated in the conference committee with the House.

One stopgap measure that the Congress did pass in fiscal year 2006 was the authority to transfer up to $100 million from the Pentagon to the State Department for boosting the civilian response to particular trouble spots. However, this money will not provide the resources necessary over the long term to improve the State Department's capacity to be a capable partner in responding to complex emergencies.

The foreign affairs budget is always a tougher sell to Congress than the military budget. President Bush has attempted to reverse the downward spiral in overall foreign affairs spending that took place in the 1990s. In that decade, both the executive and legislative branches rushed to cash in on the peace dividend. But President Bush has consistently requested increases for the 150 Account in his budgets. For the fiscal year 2007 budget, he requested a 10.3-percent increase over the CBO-determined baseline of fiscal year 2006.

But, if previous years are any example, the amount appropriated will fall far short of the amount requested. Last year, the President's annual request for foreign affairs was cut by $2.1 billion. The Congress cut the fiscal 2005 annual request by a similar amount. According to a Congressional Research Service report that I requested, Congress has provided $5.8 billion less than the President has requested for foreign affairs in regular and supplemental spending bills since September 11, 2001.

Today, when we are in the midst of a global struggle of information and ideas: when anti-Western riots can be set off by the publication of a cartoon; when we are in the midst of a crisis with Iran that will decide whether the nonproliferation regime of the last half century will be abandoned; when we have entered our fourth year of attempting to stabilize Iraq; and when years of effort to move the Arab-Israeli peace process are at risk--even then, we are unable to muster the necessary support for the President's budget in foreign affairs.

As all this suggests, we have a long way to go in creating the kind of robust civilian capacity that we need. Both the State Department and the Defense Department are keenly aware of the importance of this legislation. If we cannot think this through and plan better as a government, the United States may come to depend even more on our military for tasks and functions far beyond its current role. But I remain optimistic that we can build on the progress already made to create a strong and reliable civilian component that boosts our stabilization and reconstruction capabilities. Passing this legislation will demonstrate that there is a keen understanding in the Senate that we need to move forward. It will support executive branch actions already taken and encourage further progress. I urge its passage.

______

By Mr. BUNNING (for himself, Mr. Obama, Mr. Lugar, Mr. Burns, and

Mr. Pryor):

S. 3325. A bill to promote coal-to-liquid fuel activities; to the Committee on Finance.

Mr. BUNNING. Mr. President, I rise today to introduce the Coal-to-

Liquid Fuel Promotion Act of 2006. Last month, I chaired an Energy Committee hearing on this promising technology that can turn coal into diesel fuel. Working with industry and the scientific community, I have put together a comprehensive piece of legislation with the goal of providing the right combination of incentives to create a backbone of coal-to-liquids infrastructure in the United States.

The first step is for the Department of Energy to help with planning these large-scale coal-to-liquids plants. This legislation will create a loan program where the private sector can obtain a loan of up to $20 million, matched dollar-for-dollar by non-federal money, to pay for the significant costs of planning, permitting and engineering a coal-to-

liquid facility. This program will have minimal cost to the taxpayers as these loans will be repaid, within 5 years, after a planned plant is financed. The federal government will also provide loan guarantees for coal-to-liquids facilities by expanding the program authorized in the Energy Policy Act of 2005.

It is not enough to simply help engineer plants or provide a loan guarantee--there must be an economic motivation for investors to put up the $1 to $2 billion it costs to build a large-scale coal-to-liquids plant. To that end, this bill will create a separate investment tax credit for coal-to-liquids technology. It will also extend the fuel tax credit for coal-to-liquids fuels until 2020. The combination of these incentives will be the one-two punch needed to jumpstart investment in this marketplace. This package of incentives is essential to developing a domestic coal-to-liquid fuels market.

With this domestically produced fuel from coal, we can bring down gas prices and be closer to energy independence. And these two goals, which are essential to our national security, bring me to the last part of this legislation. The Department of Defense consumes large amounts of fuel--for our airplanes, ships and tanks--and nearly all of it is based on petroleum and too much of it comes from the Middle East. It is time we ensure that our military has a safe, domestic source of transportation fuel. My legislation will authorize funding for the continued testing and evaluation of coal-to-liquid fuels by the military. It includes authorization to engage in long-term contracts with producers to ensure a stable, domestic fuel for our armed forces. This bill also authorizes the Department of Energy and Department of Defense to evaluate coal-to-liquids fuels for storage in the Strategic Petroleum Reserve and allows the government to turn to this domestic source of fuel for filling the reserve.

With this legislation America can take a huge step toward energy independence. My bill will foster a domestic marketplace for coal-to-

liquids fuels, bring down gasoline costs and provide our military with a secure, domestic fuel source. I urge my colleagues to support this bill.

______

By Mr. McCONNELL (for himself, Mrs. Feinstein, Mr. McCain, Mr.

Frist, Mr. Reid, Mr. Alexander, Mr. Allard, Mr. Allen, Mr.

Bennett, Mr. Biden, Mr. Bingaman, Mrs. Boxer, Mr. Brownback,

Mr. Bunning, Mr. Burns, Mr. Burr, Mr. Chafee, Mr. Chambliss,

Mrs. Clinton, Mr. Cochran, Ms. Collins, Mr. DeWine, Mrs. Dole,

Mr. Domenici, Mr. Durbin, Mr. Ensign, Mr. Feingold, Mr. Hagel,

Mr. Harkin, Mr. Kennedy, Mr. Kerry, Mr. Kohl, Mr. Kyl, Mr.

Leahy, Mr. Lieberman, Mr. Lugar, Mr. Martinez, Mr. Menendez,

Ms. Mikulski, Ms. Murkowski, Mr. Obama, Mr. Salazar, Mr.

Santorum, Mr. Sarbanes, Mr. Smith, Ms. Stabenow, Mr. Sununu,

Mr. Voinovich, and Mr. Wyden):

S.J. Res. 38. A joint resolution approving the renewal of import restrictions contained in the Burmese Freedom and Democracy Act of 2003, and for other purposes; to the Committee on Finance.

Mr. McCONNELL. Mr. President, today, along with my colleagues, Senators Feinstein and McCain, I rise to introduce an extension of the Burmese Freedom and Democracy Act.

We are joined by a host of original cosponsors: Senators Frist, Reid, Alexander, Allard, Allen, Bennett, Biden, Bingaman, Boxer, Brownback, Bunning, Burns, Burr, Chafee, Chambliss, Clinton, Cochran, Collins, DeWine, Dole, Domenici, Durbin, Ensign, Feingold, Hagel, Harkin, Kennedy, Kerry, Kohl, Kyl, Leahy, Lieberman, Lugar, Martinez, Menendez, Mikulski, Murkowski, Obama, Salazar, Santorum, Sarbanes, Smith, Stabenow, Sununu, Voinovich, and Wyden.

This broad bipartisan coalition reflects the overwhelming consensus within this body that the issue of freedom in Burma--and the immediate threat that that country poses to the entire region--is one of major importance. To put it simply, America has a moral obligation to continue to stand with the Burmese people against the country's dictatorial regime, the State Peace and Development Council (SPDC).

As many of you know, last year the extension of sanctions was signed into law by President Bush on July 27, 2005, and it enjoyed strong bipartisan support. It passed the Senate by a vote of 97-1.

The past year has brought more news from Burma that has ranged from the disconcerting to the horrific. First, the SPDC inexplicably decided to move the nation's capital from Rangoon to the hinterlands. Thus, instead of using state resources for the betterment of the Burmese people, who desperately need it, the SPDC will use state funds to build a brand new, unneeded capital located deep within the interior.

Second, Nobel Peace Prize winner Daw Aung San Suu Kyi and scores of other prisoners of conscience remain imprisoned by the SPDC. There are rumors that she may be released soon, and I hope they prove true.

Third, last fall the SPDC began a brutal military campaign against ethnic minorities, creating thousands of new internally displaced persons (IDPs); these thousands to be added to the approximately half million already without a home in Burma. Burma has the biggest IDP problem in Asia, Mr. President.

This bill ensures that the United States will not be a party to such brutality and oppression. As in the past, the legislation prohibits imports into the United States from Burma. The bill also maintains a freeze on the assets held by Burmese Government officials in U.S. financial institutions. In addition, the bill authorizes the President to assist democracy activists dedicated to nonviolent opposition to the regime in Burma.

America is not alone in the effort to promote freedom and democracy in that nation. In addition to our allies in Europe, the ASEAN Inter-

Parliamentary Myanmar Caucus, a grouping of members of parliament from six countries in ASEAN, just this week issued a strong statement on Burma. The group called on the U.N. Security Council to ``adopt[] a resolution on Burma that would empower them to intervene in Burma's crises. It is time for real action. It is time for a new, democratic and peaceful Burma.''

Clearly, it is time for the Security Council to discuss and debate a legally-binding, nonpunitive resolution on Burma that calls for the immediate and unconditional release of Suu Kyi and all other political prisoners in that country; an end to abuses against minorities

(including the use of rape as a weapon of war); and the beginning of a meaningful national reconciliation process that includes the unfettered participation of the National League for Democracy (NLD) and ethnic minorities with the SPDC.

Let me be clear that a briefing on Burma before the U.N. Security Council by U.N. Under-Secretary-General for Political Affairs Ibrahim Gambari should not serve as a substitute for a resolution on this matter. We need less talk and more action at the U.N. in support of democracy, freedom and justice in Burma.

Let me offer a comment or two about Mr. Gambari's recent visit to Burma. I do not share his optimistic view that the SPDC is ready to

``turn the page.'' In my view, the junta is only interested in deflecting and deflating growing pressure by the international community to change its repressive ways--and in avoiding the U.N. Security Council's consideration of a resolution that addresses the threat the SPDC poses to its own people and the entire region. This may explain why rumors of Suu Kyi's release abound.

However, even if Suu Kyi were to be released there is no reason--

absolutely none--for anyone to decrease pressure on the junta. The SPDC is to be judged not by what it says--we've certainly heard much of the same before--but by what it does. We have yet to see any evidence of the formation of a credible reconciliation process that includes the full and unfettered participation of the National League for Democracy and ethnic nationalities--who, by the way, are being slaughtered and raped by an ongoing military offensive waged by the junta.

I am pleased to be joined by Senators Feinstein, Frist, Brownback, Lautenberg, Durbin, Feingold, Mikulski and Lugar in sending a letter to President Bush today asking that the United States work to secure a resolution at the Security Council as soon as possible.

Until the SPDC's demonstrates by its actions that it is serious about reconciliation and reform in Burma, the international community has no choice but to use more sticks--and less carrots--to increase pressure on the junta.

Mrs. FEINSTEIN. Mr. President, I rise today once again with my friend and colleague Senator McConnell to introduce legislation to renew the ban on all imports from Burma for another year.

Our legislation also amends the original Burmese Freedom and Democracy Act of 2003 to allow the sanctions to be renewed, one year at a time, for up to 6 years.

It is critical that the Congress and the administration send a strong signal to the military junta, the State Peace and Development Council, that our resolve has not weakened and we are still committed to a free and democratic Burma. Unless the SPDC makes ``substantial and measurable progress'' towards a true national dialogue on national reconciliation and recognition of the results of the 1990 elections--

decisively won by the National League for Democracy--the import ban must remain in place.

Let us review the facts.

Aung San Suu Kyi, Nobel Peace Prize recipient and leader of the National League for Democracy, remains under house arrest. She has spent the better part of the past 16 years imprisoned or under house arrest.

The human rights situation in Burma is deplorable and demands a clear, unified response from the international community: 1,300 political prisoners are still in jail; according to a report by the Asian human rights group, Assistance Association for Political Prisoners, 127 democracy activists have been tortured to death since 1988; 70,000 child soldiers have been forcibly recruited; the practice of rape as a form of repression has been sanctioned by the Burmese military; use of forced labor is widespread; human trafficking is rampant; and the government engages in the production and distribution of opium and methamphetamine.

Senator McConnell and I coauthored the ``Burmese Freedom and Democracy Act of 2003'' which imposed a complete ban on all imports from Burma.

It was overwhelmingly renewed in 2004 and 2005, and now Congress has the opportunity to reauthorize the sanctions for one more year.

But the United States cannot act alone. The United Nations and the international community have a vital role to play.

Along with Senator McConnell and others, we have repeatedly made the case that given the numerous human rights abuses, the spread of HIV/

AIDS, the illicit production and trafficking of narcotics, and the trafficking of human beings by the military junta, the situation in Burma should be referred to the United Nations Security Council for debate and appropriate action.

A recent report by former Czech president Vaclav Havel and retired archbishop Desmond Tutu of South Africa--``Threat to Peace: A Call for the UN Security Council to Act on Burma''--confirms the need for U.N. intervention. It details how the situation in Burma fulfills each of the criteria used for past intervention by the Security Council: overthrow of an elected government; armed conflicts with ethnic minorities; widespread human right violations; outflow of refugees, over 700,000; and drug production and trafficking and the spread of HIV/AIDS.

It is time for the United Nations to act on this report and debate and pass a binding, nonpunitive, resolution on Burma that recognizes the threat the regime poses to the region and calls for Suu Kyi and all prisoners of conscience to be released.

Some may argue that because Suu Kyi remains under house arrest and the Burmese people lack basic human rights and a representative government, the sanctions have failed and it is time to lift the import ban.

I could not disagree more.

First, Aung San Suu Kyi and the democratic opposition continue to support a ban on all imports from Burma.

If we lift this ban now, without any measure of progress towards democracy and human rights, we will turn our backs on them and give comfort to their oppressors.

Second, the international community is coming together to put pressure on Burma.

In July 2005, ASEAN forced Burma to forgo its scheduled rotation as chairman of the organization.

On December 16, 2005, the U.N. Security Council debated the situation in Burma for the first time.

Next week, United Nations Undersecretary for Political Affairs will brief members of the Security Council on his meeting with Suu Kyi, her first meeting with a foreigner since 2004.

Why would we turn back now when the military junta is increasingly isolated and the plight of the Burmese people is on the agenda of the international community?

Indeed, while we are far from our goal of a free and democratic Burma, we are making progress and we should stay the course.

I remind my colleagues that under the provisions of this legislation, we will have the opportunity to debate sanctions on Burma every year. That is how it should be.

Sanctions are not a panacea for every foreign policy dispute. But, when they are backed by a robust international response, they can be effective and they can compel change.

Archbishop Desmond Tutu has rightly said, ``As long as [Suu Kyi] remains under house arrest, not one of us is truly free''.

Today I urge the SPDC to release Aung San Suu Kyi, recognize the 1990 elections, and engage in a true dialogue with the National League for Democracy.

I urge the United Nations Security Council to debate and pass a binding, non-punitive resolution on Burma that recognizes the threat the regime poses to the region and calls for Suu Kyi and all prisoners of conscience to be released.

And, finally, I urge United States Senate to renew the sanctions on Burma for another year.

____________________

SOURCE: Congressional Record Vol. 152, No. 68

May 26, 2006 sees Congressional Record publish “STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS”

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