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SEC. 203. SUBTIERS.
(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.
(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.
(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.
(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 1.5184 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.
(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.
(A) IN GENERAL- Notwithstanding paragraph (2), all persons that are debtors that have no material continuing business operations but hold cash or other assets that have been allocated or earmarked for 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 assets to the Fund.
(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.
(C) CALCULATION OF UNENCUMBERED ASSETS- Unencumbered assets shall be calculated as the Subtier 3 person's total assets, excluding insurance-related assets, less--
(i) all allowable administrative expenses;
(ii) allowable priority claims under section 507 of title 11, United States Code; and
(iii) allowable secured claims.
(5) CLASS ACTION TRUST- The assets of any class action trust that has been established in respect of the liabilities for asbestos claims of any person included within a debtor and affiliated group that has been included in Tier I (exclusive of any assets needed to pay previously incurred expenses and asbestos claims reduced to a final order or judgment within the meaning of section 403(d)(1) before the date of enactment of this Act) shall be transferred to the Fund not later than 6 months after the date of enactment of this Act.
(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;
(C) those persons or affiliated groups with the lowest revenues included in Subtier 5;
(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.
(C) Subtier 3: $22,000,000.
(D) Subtier 4: $19,250,000.
(E) Subtier 5: $16,500,000.
(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;
(C) those persons or affiliated groups with the lowest revenues included in Subtier 5;
(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.
(C) Subtier 3: $11,000,000.
(D) Subtier 4: $8,250,000.
(E) Subtier 5: $5,500,000.
(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.
(C) Subtier 3: $1,650,000.
(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: $1,100,000.
(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:
(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 Federal Employers' Liability Act (45 U.S.C. 51 et seq.) 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.
(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 $5,000,000,000 or more is included in Subtier 1 and shall make annual payments of $10,000,000 to the Fund.
(4) SUBTIER 2- Each person or affiliated group in Tier VII with revenues of less than $5,000,000,000, but not less than $3,000,000,000 is included in Subtier 2 and shall make annual payments of $5,000,000 to the Fund.
(5) SUBTIER 3- Each person or affiliated group in Tier VII with revenues of less than $3,000,000,000, but not less than $500,000,000 is included in Subtier 3 and shall make annual payments of $500,000 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 Federal Employers' Liability Act, shall be attributed to the parent owners of the joint venture on a pro rata basis, reflecting their relative share of ownership. The joint venture shall not be responsible for a payment amount under this provision. '
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FAIR Act of 2005 - TITLE I - Asbestos Claims Resolution