Bill Frist

Mr. FRIST

Mr. FRIST. Mr. President, I now move to proceed to the consideration of S. 2290, and I ask unanimous consent that the motion be set aside until the conclusion of the use of leader time and the 1 hour period of morning business.

Mr. FRIST

Mr. FRIST. Mr. President, I am going to make a 10-minute statement. I would be happy to turn to the Democratic leader for any opening comments.

Mr. FRIST

Mr. FRIST. Mr. President, there will no doubt be constructive proposals from Senators on both sides of the aisle to refine and improve this bill. That is what the amendment process is all about. I encourage this process. It is my hope the process will be constructive and it will result in a bill that can pass this body. I look forward to the debate and consideration of S. 1125. I yield the floor. Exhibit 1 S. 2290--Summary of Changes From S. 1125 as Reported S. 1125, the Fairness in Asbestos Injury Resolution Act, as reported out of the Senate Judiciary Committee, represents an unprecedented advance on complex and difficult issues that have stalled previous attempts at similar legislation. Landmark agreements were reached on asbestos injury compensation issues such as medical criteria, and over 50 consensus-building changes were adopted overall. Nonetheless, a number of issues were left open for further discussion, and additional concerns were raised that were not addressed by the Committee. Since the bill was reported out of Committee, various stakeholders and members from both parties have continued negotiations. The substitute bill being introduced reflects agreements on some of these difficult issues reached during these negotiations, and attempts to address a number of concerns that have been raised but have not yet been subject of agreement. In particular, the First/Hatch bill: raises claims values, creates a more streamlined administrative system that can be up and running quickly, provides increased liquidity and upfront funding so that claims can be paid in short order, and places the risk that the Fund runs out of money on the defendants and insurers and not on the claimants. These are just some highlights of the numerous changes that were made to make a fairer system for claimants. The following provides a section-by-section summary of the changes in the First/Hatch bill from S. 1125 as reported with explanations as to the need for the changes. sec. 3. definitions Changes were made to various definitions under this section to conform with other amendments in the bill to provide clarifications. Sec. 3(3) Definition of ``asbestos claim.'' S. 1125 seeks to replace the current broken tort system with a streamlined, administrative system. S. 1125, therefore, must preempt and supersede all asbestos claims filed in the current tort system. Concerns were raised that the definition of ``asbestos claim'' in S. 1125 as reported may have been interpreted as unduly limited, failing to cover some types of asbestos claims that are currently overburdening the tort system today, which were intended to be preempted and superseded by the Act. This definition was amended to help ensure that the definition is interpreted broadly to encompass all types of claims that are being filed in the system today. This definition has also been amended to make clear that claims alleging damage to tangible property are left intact. [Sec. 3(6) Definition of ``collateral source compensation.'' The disease categories under S. 1125 are not easily translatable from those filed in the tort system. The definition of ``collateral source compensation,'' therefore, was clarified to more clearly encompass awards in the tort system.] Sec. 3(9) Definition of ``insurance receivership proceeding.'' A new definition for ``insurance receivership proceedings'' was added to S. 1125. This definition accompanies changes made to section 402 that would give the Fund a priority for collection of assessments from insurers in state insurance receivership proceedings. These provisions track those provided for insolvent companies in bankruptcy. This definition describes the state law proceedings to which the priority applies. This, like the bankruptcy provisions, help to ensure that the payments made to the Fund are continued despite any subsequent insolvencies of insurer participants. [Sec. 3(11) Definition of ``participant.'' One of the exceptions to ``participant,'' defined in section 3(11), are companies who have completed their bankruptcy proceedings. This exception was amended to ensure that the bill is in concert with the United States Bankruptcy Code. A company is not ``out of bankruptcy'' until the plan of reorganization becomes effective in accordance with its terms. Under the Bankruptcy Code, changes to the plan can occur until the date on which the plan is ``substantially consummated,'' as defined in section 1101(2) of that Code. Conforming changes were made to applicable sections in the funding provisions under title II.] Title I--Asbestos claims resolution Subtitle A--Office of Asbestos Disease Compensation The Frist/Hatch bill incorporates a new administrative structure for the processing and paying of claims, which was part of an agreement between representatives of labor and industry groups negotiated under the auspices of Senator Specter and Judge Becker. This new structure responds to concerns raised by representatives of organized labor, who wanted a more streamlined and more non- adversarial system than that in S. 1125 as reported. Various aspects of the new structure promote the efficient management of the program and crate a less burdensome system for claimants. Old title I, subtitle A, which created a claims processing structure within the Court of Federal Claims, was replaced with new subtitle A, which creates an executive office situated in the Department of Labor to administer the program. Subtitle B in S. 1125 as reported, which outlined the claims handling process, also was substantially amended to respond to requests by stakeholders. The new administrative structure also contains provisions to ensure that the program is processing claims as soon as possible, which were added as part of the alternative to the Feinstein startup amendment. Conforming changes were made throughout the bill. Sec. 101. Establishment of Office of Asbestos Disease Compensation Program. New section 101 establishes within the Department of Labor, an Office of Asbestos Disease Compensation. This section clarifies that all administrative expenses of the program are to be paid from the Fund. The office is headed by an Administrator, who will be responsible for both the claims handling and the management of the Fund. The Administrator is appointed by the President with the advice and consent of the Senate, and reports directly to the Assistant Secretary of Labor for the Employment Standards Administration. The general duties of the Administrator are provided in this section, and provisions regarding the Administrator's fund management duties found in section 222 of S. 1125 as reported (p. 168-69) were incorporated into this general authority provision. Civil penalties up to $10,000 for false statements and fraudulent acts against the Office are also provided for under this section. Two Deputy Administrators will be selected by the Administrator--one to carry out the Administrator's claims processing responsibilities, and one to carry out the Administrator's Fund management responsibilities. Finally, a general provision with respect to the application of the Freedom of Information Act (``FOIA'') was added to section 101. Placing the office within the Department of Labor was requested by labor representatives. In addition, much of the provisions in the Frist/Hatch bill are based on provisions from statutes and implementing regulations for compensation programs administered by the Department of Labor. The Administrator, therefore, can utilize the 90 years of experience the Department has in administering similar compensation programs and the infrastructure already created for these programs. Sec. 102. Advisory Committee on Asbestos Disease Compensation. New section 102 provides for the establishment of an Advisory Committee on Asbestos Disease Compensation within 120 days after the date of enactment of the Act. The Advisory Committee will advise the Administrator on general policy and administration matters. The Advisory Committee is composed of 24 members with 3-year staggered terms. Sixteen members are to represent the interests of the claimants (at least 4 of which are recommended by recognized labor federations), defendant participants, and insurer participants. The remaining 8 members are appointed by the Administrator and cannot have earned more than 25% of their income for each of the 5 years prior to their appointment by serving in asbestos litigation as consultants or expert witnesses. The Administrator selects a Chairperson and Vice Chairperson. The Advisory Committee must meet at least 4 times a year for the first 5 years of the program and at least twice a year thereafter. The Administrator must provide information and administrative support as may be necessary and appropriate for the Advisory Committee to carry out its functions. The members are entitled to travel and meal expenses. An advisory committee was provided for under the Energy Employees Occupational Illness Compensation Program Act (``EEOICPA''), 42 U.S.C. Sec. 7384o, which served as a model to the new administrative structure. The size and scope of the Advisory Committee was outlined by labor representatives in order to provide stakeholders with the opportunity to provide the Administrator with input on the compensation program. Sec. 103. Medical Advisory Committee. New section 103 is permissive rather than mandatory, granting the Administrator the authority to create a Medical Advisory Committee to provide general medical advice relating to the review of claims that cannot be adequately addressed by the larger Advisory Committee on Asbestos Disease Compensation. To help ensure objectivity on the part of the members of this Committee, individuals who earned more than 25% of their income for each of the 5 years prior to their appointment by serving in asbestos litigation as consultants or expert witnesses cannot be appointed to the Committee. Sec. 104. Claimant Assistance. New section 104 expands the claimant assistance program under section 116 of S. 1125 as reported (p. 39). At the request of labor representatives, the program was expanded to include, among other things, the requirement to establish resource centers and to contract with labor and community based organizations. Aspects of this more expansive program are modeled on Section 7384v of the EEOICPA, for which several resource centers have already been established by the Department of Labor. The streamlined administrative structure and the claimant assistance program, which includes assistance in finding pro bono legal representation, both reduce the burden on the claimant seeking compensation and the need for a lawyer. Although legal representation is allowed, the goal of S. 1125 is to reduce the high transaction costs of the current tort system, which can be upwards of 40% for legal fees to the plaintiff's attorney alone. As such, the Frist/Hatch bill provides for reasonable limits on attorneys fees to reflect this streamlined process, allowing for higher percentages for more complex cases. Penalties are provided for to ensure that these limits are followed. Sec. 105. Physicians Panels. The Physicians Panels were established in order to perform the functions of the Medical Advisory Committee originally contemplated under S. 1125 as reported, section 114(j) (p. 37). The Physicians Panels will provide necessary medical advice in the adjudication of individual claims, as opposed to the newly created Medical Advisory Committee which would advise on general medical policy. While the Administrator still chooses how many panels are required, the statute now requires that each panel be composed of 3 physicians. The third physician is only to be consulted in the event the other two physicians cannot agree. The qualification that physicians serving on the panels be actively practicing was replaced by a limitation that such physicians cannot have earned more than 25% of their income for each of the 5 years prior to their appointment as an employee of a participant or a law firm representing any party in asbestos litigation or as a consultant or expert witness in matters related to asbestos litigation. The previous qualification was deleted in order to allow doctors who are retired but have knowledge and experience with diagnosing asbestos-related illnesses may serve on the Physicians Panels. It was replaced by a requirement that sought to ensure objective doctors were placed on these panels. Labor representatives also requested less restrictive compensation provisions due to its impression that it is currently difficult to retain qualified doctors under the EEOICPA because of a limitation on compensation. A provision ensuring that Physicians Panels are exempted from the Federal Advisory Committee Act was also included at the request of labor representatives. Sec. 106. Program Initiation. New section 106 was inserted in order to address concerns raised by labor representatives that the program could take an inordinate amount of time to start paying claims. This section requires the establishment of interim regulations, including regulations for the processing of exigent claims, within 90 days from the date of enactment in order to allow for an expeditious program startup, addressing concerns raised that victims do not have time to wait through undue delays until a whole new administrative program is established. The Secretary of Labor is required to provide the Administrator with temporary personnel and other resources as necessary to facilitate the initiation of the program. This section also defines ``exigent health claims'' as those made by individuals who are living mesothelioma claimants and others who have been diagnosed as terminally ill from an asbestos-related illness and having a life expectancy of less than one year. The Administrator has the discretion to identify additional exigent health claims as well as extreme financial hardship claims to be handled on an expedited basis. Stakeholders recognized that an interim administrator may be appointed in the event that the Administrator is a presidential appointee to avoid any delays related to the Presidential appointment and Senate confirmation of an Administrator. To address this issue, the Frist/Hatch bill provides that the Assistant Secretary of Labor for the Employment Standards Administration serve as Interim Administrator, until the Administrator is appointed. The Interim Administrator may begin processing and awarding claims without regard to the time limits set forth in the title I, subtitle B. The Interim Administrator also may prioritize claims processing based on severity and causation, so that living mesothelioma victims or terminally ill claimants, who may not have much time, can be placed first in line and be paid as quickly as possible. The provisions, along with placing the Office within the Department of Labor, help to ensure that the program can be up and running in short order and effectively administered in the long run. Sec. 107. Authority of the Administrator. New section 107 was added to provide the Administrator with general authority to issue subpoenas and conduct hearings, and is derived from the Federal Employees Compensation Act (``FECA''), 5 U.S.C. Sec. 8126. Such authority is necessary to implement the Administrator's responsibilities under the Act. Subtitle B--Asbestos Disease Compensation Procedures Subtitle B lays out the claims handling process. Although it incorporates many of the same provisions found in title I, subtitle B, of S. 1125 as reported, new subtitle B represents the more streamlined process requested by labor representatives and includes changes which labor felt would create a fairer process for claimants. Sec. 111. Essential Elements of Eligible Claim. Section 111 amends old section 113 from S. 1125 as reported (p. 28) as requested by labor representatives, by collapsing the requirements that were listed separately into a general reference to the ``medical criteria'' section in subtitle C, which includes latency, exposure, diagnostic and medical criteria requirements. Sec. 112. General Rule Concerning No-Fault Compensation. No change from old section 112 in S. 1125 as reported (p. 28). Sec. 113. Filing of Claims. New section 113 revises section 111 from S. 1125 as reported (p. 23). Section 113(a)(1) incorporates the definition of ``personal representative'' as the term is defined in 28 C.F.R. Sec. 104.4, which contains the regulations governing the September 11th Victim Compensation Fund of 2001. This change was made to avoid some of the difficulties that may be encountered in defining who may file on behalf of a deceased claimant and sorting through potential familial disputes. Also at the request of labor representatives, new provisions defining the ``date of filing'' and clarifying the procedures for handling incomplete claims were added. These provisions were based on the Radiation Exposure Compensation Act, 42 U.S.C. Sec. 2210 note, section 6(d), and regulations implementing the EEOICPA, 20 C.F.R. Sec. 30.100(c), and the Black Lung Act, 20 C.F.R. Sec. Sec. 725.404(d), 725.409. Statute of Limitations. Labor representatives raised a concern with respect to the statute of limitations section in S. 1125 as reported, which would allow setoffs in multiple injury cases of recoveries for all prior claims made with the Fund (section 111(c)(3), p. 27). New section 113(b) clarifies that a claimant who files a second injury claim with the Fund for a subsequently diagnosed malignant disease does not receive a setoff for prior recoveries from the Fund in cases where the claimant has already filed and resolved a claim with the Fund for a nonmalignant injury. This new provision is based on the 2002 Trust Distribution Procedures for the Manville Trust, which recognizes that claimants who develop and receive awards for a nonmalignant claim should not receive setoffs in the event that claminant is subsequently diagnosed with a malignant disease. Another change was made to the statute of limitations for pending claims. Although S. 1125 creates a specific statute of limitations for ``pending claims'' timely filed in the courts or with a bankruptcy trust, S. 1125 does not seek to revive stale claims. As such, a definition of ``pending claims'' with bankruptcy trust was added to clarify when such a claim is ``pending'' for purposes of the statute of limitations. The new definition provides that only claims that have not yet been resolved with the trust be allowed to take advantage of the relaxed statute of limitations, and that claims will not be considered pending simply because they are awaiting additional payment installments or may have the potential to have increased payment. Required Information. Additional changes were made to the required information provision of S. 1125 to reflect concerns raised by labor representatives that the application requirements were too strict, and to clarify certain require information at the request of labor representatives. Sec. 114. Eligibility Determinations and Claims Awards. New section 114 replaces the claims handing provisions of S. 1125 as reported, including the administrative appeals process, largely in response to requests by labor representatives. It establishes a more streamlined system, eliminating at least one level of review from S. 1125; thereby resulting in the deletion of subtitle E of title I (En Banc Review) in S. 1125 as reported. Subsection (a) authorizes the Administrator to render decisions on claims for compensation. This language is based on provisions found in FECA, 5 U.S.C. Sec. 8124. Subsection (a) also clarifies that costs associated with any additional medical evidence or testing requested by the Administrator as part of the individual's claim shall be borne by the Fund. Proposed and Final Decisions. The Administrator is required to issue a proposed decision, containing findings of fact and conclusions of law as well as an explanation of the procedures for review, within [90] days of the filing of a complete claim. The claimant then has the opportunity to request, in writing within [90] days of issuance of the proposed decision, an informal hearing or review of the written record. If a hearing is requested, it is to be conducted before a representative of the Administrator, and claimants have the right to request a subpoena, which may be granted or denied at the sole discretion of the representative hearing the claim. If no review has been requested, the Administrator issues a final decision. If the final decision in such cases materially differs from the proposed decision, the claimant may then seek review. If review of the proposed decision is requested, the Administrator is required to issue a final decision within [180] days after the request for a hearing, and [90] days after the request for review on the written record. A claimant may authorize an attorney or other individual to represent him or her in any proceeding under this Act. The provisions in new section 114 are largely based on FECA and its regulations and on regulations implementing the EEOICPA. Sec. 115. Medical Evidence Auditing Procedures. New section 115 consolidates various program-wide and individual claims auditing provisions found in S. 1125 (sections 115(a), (b), p. 38, sections 114(c)(3)(B)(i), (c)(4), p. 31-32), with some modifications. The general auditing authority was clarified to require the development of methods for auditing and evaluating medical evidence and other types of evidence submitted to the Office (new section 115(a)(1)). Independent Certified B-Readers. The provisions providing for review of x-rays by independent certified B-readers was amended to allow the Administrator to consider the findings of the independent certified B-readers rather than denying the claim in the event the independent B-readers disagree with the reading submitted by the claimant as was previously provided. This change was made to account for potential disagreements between the independent certified B-readers (new section 115(b)(3)). The purpose of this review, however, is still to ensure that questionable x-ray readings submitted by claimants are not considered when determining eligibility. Smoking Assessment. Provisions on the assessment of claimant representations as to their smoking status was amended to clarify that such review applies only to other cancer claims, lung cancer claims, and exceptional medical claims. Based on past experience of claims filing, this section also now provides that the review of claims on smoking status should address at least 5 percent of the claimants asserting status as nonsmokers or ex-smokers because of the potential for fraud in such cases. Subtitle C--Medical Criteria In order to preserve the bipartisan agreement reached with respect to medical criteria, no changes have been made to this subtitle except where necessary to conform to the revised administrative structure under title I. One substantive change that was made as part of the agreement between labor and industry representatives on the administrative structure was to add a requirement that the Administrator develop presumptions for satisfying the exposure criteria for certain industries, occupations, and time periods. A similar provision was included in S. 1125 as introduced, but was dropped from the medical criteria in S. 1125 as reported. Subtitle D--Awards Several major changes were made to Subtitle D (p. 81) of title I in S. 1125 as reported. [First, section 131(b)(1) adjusts the claims values to reflect those proposed by the Majority Leader (and to correct one apparent typographical error for nonsmoker, Level VIII claims). This bill raises claims values above S. 1125 in several categories.] Second, section 132(b) now provides medical monitoring reimbursement for costs of physical examinations by the claimant's physician as well as costs for x-rays and pulmonary function testing. A physical examination is another important element for obtaining a proper diagnosis, and should also be covered by the fund. Finally, although providing for payments over a three-year period was provided for in Committee at the request of labor and democrats, it was further clarified, also at the request of labor and democrats, that such payments should be made in the following amounts: 40% the first year, 30% the second year, and 30% the third year. The statute now provides a standard by which the Administrator must comply to extend such payments to 4 years--that is, if warranted in order to preserve the overall solvency of the Fund. title ii--asbestos injury claims resolution fund Subtitle A--Asbestos Defendants Funding Allocation In addition to technical amendments, Subtitle A was amended to reflect the new funding allocation to defendant participants proposed by the Majority Leader, to provide a structure that would guarantee the $2.5 billion (net of hardship and inequity adjustments) in defendant participant annual contributions, and to incorporate a funding proposal that would infuse the Fund with monies within months of enactment. Aggregate Payment Obligations Level. As part of the Majority Leader's funding proposal, section 202(a) now provides that the defendant participants be required to pay $57.5 billion to the Fund, subject only to a contingent call for additional payments. Section 204(h) requires annual aggregate payments to the Fund of $2.5 billion a year for 23 years or until such time as the requirement in section 202(a) is reached (if it is reached in less than 23 years). In the event there are insufficient monies collected from defendant participants to reach this annual requirement (net of any hardship and inequity adjustments) in any given year, the Administrator is granted the authority to obtain the balance from a guaranteed payment account established pursuant to section 204(k). If there are insufficient funds in the guaranteed payment account to raise the balance required, the Administrator is granted the authority to impose a guaranteed payment surcharge under section 204(l) on all defendant participants, on a pro- rata basis in accordance with the liabilities under sections 202 and 203, as necessary to raise this minimum aggregate payment obligation (net of hardship and inequity adjustments) in any one year. Financial hardship and Inequity Adjustments. Unlike S. 1125 as reported, the defendant funding formula now guarantees that funding will be available for hardship and inequity adjustments up to the annual limit of $250 million. Section 204(d) was clarified to ensure that adjustments in effect in any one year made for both financial hardship and inequity are subject to a combined $250 million cap. Although limits based on a fixed percentage roughly equating to $150 million for severe financial hardship and $100 million for demonstrated inequity were originally provided, the Administrator is now given the discretion to use the $250 million for demonstrated inequity adjustments and for financial hardship adjustments as deemed necessary. It is anticipated that the severe financial hardship adjustments will increase in importance in the future as companies become confronted with unanticipated and unpredictable financial hardships. The Administrator's discretion would be broad enough to allow the Administrator to reallocate monies from inequity adjustments to accommodate future financial hardships. [In addition, unlike S. 1125 as reported, such adjustment determinations would be subject to review.] A financial hardship and inequity adjustment account under section 204(j) replaces the orphan share reserve account in S. 1125 as reported (section 223(h), p. 189). Under section 204(k), any excess monies above the $2.5 billion minimum aggregate annual payments are to be placed into the financial hardship and inequity adjustment account up to $250 million in any given year. Any monies not used in the account in any given year are carried over for use in the next year. Any additional excess funds (after the $250 million) go to the guaranteed payment account established under section 204(k) to be used to ensure that the defendant participants reach the minimum annual aggregate payment amount (net of hardship and inequity adjustments) in future years. The monies in the financial hardship and inequity adjustment account are now to be used only to the extent the Administrator grants a financial hardship or inequity adjustment, and not in the event a defendant participant files for bankruptcy and cannot meet its obligations as previously provided in S. 1125 as reported. The guaranteed payment account provided for under section 204(k) (plus the potential surcharge) is meant to address any potential shortfalls due to such bankruptcies. Contingent Call. Pursuant to the new Frist funding proposal, only defendant participants are subject to a contingent call for additional payments and, therefore, the contingent call provisions in S. 1125 as reported (section 223(f), p. 179-87) were moved to subtitle A of title II and amended to reflect the new Frist funding formula. Due to the increased liquidity provided for under the Frist funding proposal, the back-end payments provisions (section 223(g), p. 187-89) were deleted. The amended contingent call provision, section 204(m), grants the Administrator the authority to require up to $10 billion in additional payments to be allocated based on the defendant allocation scheme in sections 202 and 203. To invoke the contingent call authority, the Administrator must certify, after consultation with appropriate experts, that such monies are required to meet the Fund's obligations. Although the Administrator may invoke the contingent call authority at any time for purposes of borrowing monies, the additional payments may not be assessed against defendant participants until after the total aggregate payment amount has been reached. Upfront funding. Subtitle A also reflects changes that would require defendant participants to provide upfront funding to infuse the Fund with monies to begin paying claims within months of enactment. Section 204(i) requires a defendant participant to make a good faith determination as to its prior asbestos expenditures and/or payments made to pay claims brought under the Federal Employees Liability Act (``FELA''), and submit payments to the Administrator within 90 days of the date of enactment for Tiers I and VII and within 180 days of the date of enactment for Tiers II through VI. It is believed that 90 days is sufficient time for debtors and Tier VII defendant participants to determine their liability under this section and make initial payments. Due to the greater complexity of determining prior asbestos expenditures for Tiers II through VI, however, 180 days is allowed for defendant participants to be able to make an initial, good-faith determination and payment, conforming to the 6 month requirement for bankruptcy trusts to assign their assets to the Fund. The Administrator would still make a final determination as to a defendant participant's tier and subtier, and request additional payment or rebate for year 1 if necessary. After the initial payment, defendant participants must then make payments and submit information as prescribed by the Administrator. The right to an administrative rehearing was also clarified, and the statute now expressly requires the exhaustion of such administrative remedies prior to seeking judicial review. Clarifications for Debtors. The superseding provisions related to debtors under section 202(e) were clarified to ensure that a plan of reorganization or other agreement associated with asbestos claims are superseded. Subtitle B--Asbestos Insurers Commission Subtitle B in S. 1125 as reported has been amended to reflect the new Frist funding proposal and to address potential constitutional problems that were inherent in Subtitle B of S. 1125 as reported. [Additional changes to further clarify these provisions may be necessary.] Establishment of Asbestos Insurers Commission. Given the authority granted to the Commission, the appointment provisions in S. 1125 as reported allowing for Presidential appointment of the members after mere consultation with certain members of Congress, present potential appointments clause problems. Section 211, therefore, now provides that the members of the Commission are appointed by the President with the advice and consent of the Senate. In addition, Section 211 now provides that the Commission may act based on the participation of a majority of the members. S. 1125 as reported had required all the members be present for the Commission to be able to act, which was not practical and could have resulted in unnecessary delays in the allocation process. Aggregate Payment Obligation Levels. As part of the Majority Leader's funding proposal, section 212(a)(2) provides that the insurer participants be required to pay $46.025 billion to the Fund, and section 212(a)(3) outlines the annual aggregate payments. Insurer participant payments are front loaded, but are to be paid over a period of 27 years. Additional conforming changes were made to reflect the new funding provisions and to clarify the allocation process and criteria. Upfront Funding. Similar to the defendant participants, the insurer participants are now required to provide upfront funding to help infuse the Fund with monies to begin paying claims quickly. Sec. 212(e) grants the Administrator the authority to require insurer participants to pay interim contributions to the Fund to assure adequate funding by insurer participants during the period between the date of enactment of the Act and the date when the Commission issues its final determination of contributions. Contributions required by the Administrator will be credited to the insurer participants subsequent payment obligations established by the Commission. Guaranteed Payment. [To be determined.] Subtitle C--Asbestos Injury Claims Resolution Fund As described above, various provisions were moved to other parts of the bill and deleted from subtitle C in S. 1125 as reported. In addition to provisions previously identified, the provisions relating to violations of environmental and occupational health and safety requirements (section 222(c), p. 171) were moved to Title IV--Miscellaneous Provisions. Various substantive changes, as well as other conforming changes and technical corrections, were made to this subtitle to help increase the Fund's liquidity and to help protect the integrity of the Fund. Borrowing Authority. As part of the Majority Leader's funding proposal, the borrowing authority provision of S. 1125 as reported (section 223(c), p. 177) was amended to provide more expansive authority to increase the Fund's liquidity. Under new section 223(b), the Administrator is now authorized to borrow against up to seven years of expected payments by the participants. The new borrowing provisions clarify that any debt incurred is to be paid solely by amounts available in the Fund. To help ensure that the fund is up and running quickly, monies may be borrowed from the Federal Financing Bank during the first two years of the Fund. The increased liquidity will also help to fix short- term funding problems in the event there is a bulge in claims to ensure that the Fund is not unnecessarily subject to an early sunset. Increased Enforcement. Additional provisions were added to subtitle C to strengthen the Administrator's authority to enforce the participants' payment obligations. New audit authority has been provided for under section 223(d). This audit authority is for the following purposes: (a) ascertaining the correctness of any payments made to the Fund; (b) determining whether a person who has not made a payment to the Fund was required to do so; (c) determining the liability of any person for a payment to the Fund; (d) collecting any such liability; or (e) inquiring into any office connected with the administration of enforcement of title II. In addition to the criminal penalties already provided for in S. 1125 as reported, civil penalties for false statements and fraudulent acts against the Administrator have been added under this section. The enforcement provisions in section 225 now provide that the Administrator may enforce the provisions of this Act in proceedings outside of the United States to ensure the ability to go after recalcitrant foreign companies subject to the liabilities under the Act. Additional enforcement provisions aimed at insurer participants were also added to section 225. New section 226 provides that interest be paid on any amount of payment obligation that is not paid on or before the last date prescribed for payment. title iii--judicial review The judicial review provisions in S. 1125 were largely replaced to reflect changes in the administrative structure and to simplify the provisions. These changes were largely as a result of negotiations between representatives of labor and industry. Sec. 301. Judicial Review of Rules and Regulations. Section 301 now applies to judicial challenges of rules and regulations promulgated by the Administrator or the Asbestos Insurers Commission pursuant to the Act, granting the United States Court of Appeals for the District of Columbia Circuit exclusive jurisdiction over such actions. Any petition for review must be filed within 60 days of the date the notice of such promulgation appears in the Federal Register. Sec. 302. Judicial Review of Award Decisions. Section 302 now applies to judicial review of eligibility determinations made by the Administrator. Any claimant adversely affected or aggrieved by a final decision of the Administrator awarding or denying compensation may petition for judicial review within [90] days of the issuance of a final decision of the Administrator. Such petition 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. At the request of labor representatives, the standard of review of such eligibility determinations was changed from the usual arbitrary and capricious standard to a substantial evidence standard. Sec. 303. Judicial Review of Participants' Assessments. Section 303 now applies to judicial challenges of participants' assessments made by the Administrator or the Asbestos Insurers Commission. The United States Court of Appeals for the District of Columbia Circuit, rather than the United States District Court for the District of Columbia as was provided in S. 1125 as reported, has exclusive jurisdiction over such actions. A petition for review must be filed within 60 days of the final determination giving rise to such action. Defendant participants must file a petition for review within 30 days of the Administrator's final determination (after rehearing), and insurer participants must file a petition for review within 30 days of receiving notice of a final determination. Sec. 304. Other Judicial Challenges. Section 304 provides that any action challenging the constitutionality of any provision of the Act must be brought in the United States District Court for the District of Columbia. The provision also authorizes direct appeal to the Supreme Court on an expedited basis. An action under this section shall be filed within 60 days after the date of enactment or 60 days after the final action of the Administrator or the Commission giving rise to the action, whichever is later. The District Court and Supreme Court are required to expedite to the greatest possible extent the disposition of the action and appeal. Sec. 305. In General. As provided in S. 1125 as reported, section 305 also states that no stays of payments into the Fund pending appeal are allowed. In addition, no judicial review other than as set forth in sections 301, 302 and 303 is allowed. Any decision of the federal court finding any part of the FAIR Act to be unconstitutional shall be reviewable as a matter of right by direct appeal to the Supreme Court within 30 days of such ruling. title iv--miscellaneous provisions The following provisions in Title IV have been amended from S. 1125 as reported. Sec. 402. Effect on Bankruptcy Laws. Various changes were made to section 402 for clarifications and to address possible constitutional arguments that may affect the ability of the Fund to receive assets from current bankruptcy trusts. Sec. 403. Effect on Other Laws and Existing Claims. Asbestos Claims Barred. Section 403(d)(2) is changed to address a variety of unconventional asbestos claims that plaintiffs have asserted directly against both defendant participants and insurer participants in the tort system. Subsection (d)(6) is added to permit parties to obtain a credit in the event that a court ignores or misapplies the exclusive remedy provisions of the Act, and erroneously awards a judgment in favor of asbestos claimants outside of the federal compensation program. Initiation of the Fund. Because the new administrative structure and the new funding provisions were amended to ensure that the program is up and running in a matter of months, section 403(d)(5) (p. 211) was deleted from the bill. Sec. 404. Effect on Insurance and Reinsurance Contracts. Section 404 (Section 406 in the Committee Bill) deals with the effect of the Act on insurance and reinsurance contracts. Section 406 as it came out of Committee accounted for ``erosion'' of insurance policies that cover not only asbestos liabilities, but also potentially other liabilities. The section established how contributions to the fund by insurers and reinsurers would reduce the limits of existing insurance policies held by the defendant participants. Erosion. Changes have been made in section 404(a), dealing with erosion of insurance coverage limits, in order to account for the possibility of an early sunset of the Fund. Based upon the assumption that insurers and reinsurers will be required to make payments into the Fund for 27 years after enactment, erosion of the policy limits is deemed to occur at enactment. If the Act sunsets early, however, the insurers may not be required to pay the full amount for which they have been given erosion credit. In order to treat this situation, section 404 has been amended to provide for the restoration of unearned erosion that exists at the time of an early sunset. Additionally, section 404(a)(2)(B) has been amended to conform the Act to the revised funding structure. The Bill that passed out of Committee deemed certain erosion to occur upon a contingent call because the contingent funding was shared equally by the insurer participants and the defendant participants. Any required contingent funding is now to be required solely of defendants, and therefore no erosion will be deemed to occur upon contingent payments. Finite Risk Policies Preserved. The Frist/Hatch bill includes a new section 404(d), dealing with finite risk policies. Finite risk policies are non-traditional insurance and reinsurance vehicles that have in recent years been obtained by a relatively small number of defendants in asbestos litigation and some of their insurers in an effort to responsibly manage their asbestos liabilities. These contractual arrangements were specifically designed because traditional asbestos coverage was no longer available after the mid-1980s. Generally, finite risk policies provide coverage with respect to events that occurred in the past and are already known to both parties to the contract. Commercial General Liability insurance provides coverage usually for injuries that may occur in the future. Because of the unique nature of these kinds of contractual arrangements, it is appropriate that finite risk insurance be excluded from the legislation. This will avoid the danger that participants that have entered into these arrangements could be required to pay twice. Without the exclusion, participants that have entered into finite risk arrangements would be required to pay substantial amounts to the trust fund and also be subject to a potential forfeiture of their rights to funds comprised, in effect, mostly of their own money used to prepay their asbestos liabilities. The participants that have obtained finite risk insurance should not be penalized by the legislation. If the finite risk arrangements are not excluded from the legislation, the insurance carriers issuing the finite risk insurance policies would reap a substantial windfall at the expense of such participants. Treatment of Other Insurance and Reinsurance Rights or Obligations. A new section 404(e) has been added to specify the effect of the Act on certain reinsurance and insurance claims. Generally, no participant may pursue coverage claims against another participant or captive insurer for required payments to the Fund. Certain insurance assignments are voided. Otherwise, the Act does not affect insurance or reinsurance rights or obligations unless a person voluntarily pays a claim superseded by the Act or otherwise available limits are deemed eroded. Sec. 405. Annual Report of the Administrator. The sunset provisions in S. 1125 as reported (section 404(3), p. 214) created an inflexible trigger that could cause the Fund to terminate unnecessarily because of a short-term bulge in claims to the detriment of claimants. Section 405 amends old section 404 to provide a workable alternative to the sunset provisions, giving the Administrator more time and more flexibility, such as through the increased borrowing authority, to deal with a short term aberration in claims and available funding. S. 1125 only gave the Administrator a mere 90 days to correct for short-term liquidity problems. S. 1125 as reported also would have only ensured that 95% of the award amounts owed for the prior year and 95% of eligible claimants be paid prior to sunset. The alternative now in the bill would require that sufficient funds be available to pay all resolved claims in full. Moreover, the bill now makes clear that any debt incurred by the Fund is paid by monies in the Fund and not the United States treasury. These provisions also ensure that the risk that the Fund runs out of money is borne by the participants, providing that, in the event of sunset, a federal cause of action is created and the claimants may file their claims in federal court. Sec. 406. Rules of Construction Relating to Liability of the United States. This section was previously section 405 in S. 1125 as reported [with one change to conform to the new administrative structure]. Sec. 407. Rules of Construction. Provisions found in section 101(d) of S. 1125 as reported (p. 23) can now be found under new section 407. Sec. 408. Violations of Environmental and Occupational Health and Safety Requirements. Provisions found in section 222(c) of S. 1125 as reported (p. 171) are now placed in new section 408. [Sec. 409. Tax Treatment. Currently, insurers have tax- deductible status for reserves originally set aside for payment of asbestos claims. Under S. 1125, these reserves would now be used to pay assessments required by the Act. New section 409 would maintain the tax deductibility of these reserves until such time as the insurer makes payment to the Fund.] Sec. 410. Nondiscrimination of Health Insurance. New section 410 incorporates a proposed amendment by labor representatives and Democrats that explicitly extends the protections of HIPAA to ensure that claimants cannot be discriminated against for provision of health insurance solely as a result of filing a claim for medical monitoring reimbursement with the Fund.

Mr. FRIST

Mr. FRIST. Mr. President, over the next 30 minutes or so, I have a couple of statements I want to make on important issues and, shortly thereafter, we will be adjourning for our recess. I had the opportunity to hear most of the comments from the Senator from Delaware, who, as he knows, I respect tremendously on a whole range of issues, but in particular his commitment to doggedly working these issues of class action and asbestos, issues that are so important to the American people. He and I have had many discussions in terms of approach and how best to address the issues. It is frustrating for me, obviously, in many ways in trying to schedule a lot of legislation that is important for us to have to stop or to switch and sequence these pieces of legislation. Two of those pieces he mentioned--the asbestos legislation and class action--are two that I hope we can address. Although it is difficult on the floor of the Senate to fully address them, it is harder in committee. Both have been addressed in committee. The issues on each have taken a different course. Although no final decision is made, part of the reason for introducing a revised asbestos bill last night was that people who care very much about this issue--the 100 people in this body, and others who will be impacted by this significant piece of legislation--will be able to read a current document that I think is improved in many ways. Others may disagree, and that is why we need time to look at it and discuss it. But in the area of administration of the bill itself, there has been a lot more discussion since the asbestos bill was marked up in committee. Those have been incorporated. There have been other changes we need to debate and discuss. We can argue about the most appropriate forum. You can take it back through committee, or you can do it on the floor of the Senate, where everybody can be involved. Since we have given it one good shot through committee, I think it is time to take the improved product, put it out there, which is what we have done, and let people digest it and discuss it, starting today. That was the whole purpose of introducing it. Then we will see over the next 8 to 10 days. Hopefully, people will be getting together. I will make that commitment to the Senator. He has appealed to common sense that we get together on both sides of the aisle with leadership. I will do that. I am confident that in the end, we are going to be able to work through a lot of these issues. He enumerated the issues that were addressed in committee, which made it a good bill, and the issues that need to be addressed, whether it is the size of the fund or payout of the fund, the level 7 type criteria, a whole range of things I think we can address. We have addressed class action on the floor of the Senate. It was debated and we had good debate here and in committee. There it was blocked. We had a filibuster here. We can, again, argue why there was a filibuster, but it was filibustered. We tried it. Since then, we have gone back and worked together and have improved the product. My challenge is to bring that improved product, where there are probably more than 60 votes, to the floor, but do it in a way that we can stay on the bill, have germane amendments, improve the bill, debate it, and vote on it. My problem, as my distinguished colleague knows, is that nobody can make that commitment. He and others have seen, without that sort of commitment, what happens. It has happened with the FSC/ETI JOBS bill, which we will be talking about shortly. We spent 3 weeks on that, and we would start and stop and start and stop, starting with 75 amendments on one side, and we may have had 75 on our side, I don't know. But it has been overwhelming. Now we are 3 weeks into that bill, and finally we are going to come to some agreement on a universe of amendments. On class action, we were unsuccessful. So I will shift to asbestos and see what we can do there by working together. Then we will come back to class action. I heard loud and clear the rationale of why we can't consider class action now, so I have decided another course. There is no agreement to address it yet. I express my willingness to work on these issues. Even though it is a very partisan environment and we have campaigns and it is an election year, if I look at what has been filibustered-- the JOBS Act, Welfare Reform Act, energy, medical liability, FSC/ETI, which were all filibustered--you almost say we are not going to get anything done. But we can. We can make progress on the JOBS bill here shortly, and I think also on these important tort-type issues where we know we can do better and we can make progress as well. So I thank my colleague. I don't think there is anybody in the body who has worked harder on these issues on a personal basis to try to move America forward on the issues, recognizing there has to be give and take. Nobody has the perfect answer. My purpose last night was to introduce a product we can look at and debate and approve. We have that opportunity, over the next 8, 9, or 10 days, to do that. We need to get everybody to the table, not excluding anybody, and to really make it work. There is no way to pass a bill right now unless we get people to the table. Unless we are going to get more than 60 people--but even 60 people isn't much--you have to have people as committed as the Senator from Delaware. Mr. President, I want to comment on a public health issue. I know people say every time I get up, I am taking a health issue. It is important to me personally, but also to the American people, to address issues that don't necessarily make it to the front page every day which ultimately impact people's lives, some of whom don't have anybody speaking for them directly all the time. But also there are so many issues in health care that, if you shine a spotlight on them, people say, that makes sense; let's do something about that. One such issue centers on the fact that this week is National Public Health Week. It started in the early part of the week and runs throughout the week. It is a week during which health care professionals and the public at large, hopefully, take the time to reflect on the successes of our public health system and examine ways it can be improved. As a physician and one who has spent 20 years in the field of health, I have always admired our public health system. I think our country has underinvested in it in the last 10 or 15 years. But I think as people look at issues like bioterrorism, the threat of biological agents, and chemical agents, and emerging infectious diseases such as SARS, HIV/ AIDS, people realize that the frontline of defense is our public health system. With regard to Public Health Week, the American Public Health Association has focused its efforts this year on raising public awareness about health disparities, along with a short list of issues. I want to focus my remarks on the health disparities. Each day over the course of this week, the national association has convened a townhall discussion in a different city to highlight an aspect of this topic of health disparities. People say: What is Dr. Frist talking about? It is the disparities, the differences that center on race, on ethnicity, on geography--where somebody lives, whether it is in a city, a rural area, or different parts of the country--or health care disparities that center on health literacy, how educated you are to understand what is being told to you about health care, your own health care, the environment and chronic disease, all of which have these disparities which, if we shine the light, we would probably eliminate a large number of them. Two days ago on Tuesday, the American Public Health Association held a townhall meeting in Memphis, TN, to highlight rural health disparities, one of those geographic disparities that affect people in ways that may not always be obvious. I want to take a moment and acknowledge several people: The Honorable Dr. W. W. Herenton, mayor of Memphis, the Honorable A. C. Wharton, mayor of Shelby County, as well as all the other many distinguished participants and sponsors of this successful event, including another good friend, a former classmate of mine, a medical colleague when I practiced medicine, Dr. Kenneth S. Robinson, who is now commissioner of the Tennessee Department of Health; Georges Benjamin, M.D., executive director of the American Public Health Association; Pat Santel, president of the Tennessee Public Health Association; Shavetta Conner, M.D., regional medical officer, west region, Tennessee Department of Health; Robin J. Womeodu, M.D., executive director, Center on Health Disparities, University of Tennessee; the Rural Health Association of Tennessee; the Tennessee Hospital Alliance, as well as TennCare. I especially wish to commend APHA, the American Public Health Association, for taking time to hold this particular meeting in Tennessee and for their efforts to bring a comprehensive approach to the problem of health disparities. I strongly believe any health care disparity among our citizens is simply unacceptable. No patient should be denied quality health care because of their race, where they live, what their ethnicity is, what their gender is, or their socioeconomic status. Consider some of the facts, and once you hear these facts, you will see why I believe it is unacceptable, there is no good reason for it, and almost all of these have reasons we can address that can change the disparity. Even when socioeconomic status is equal, the mortality rates are higher among African Americans and American Indians than among other groups. My own speciality of heart disease--heart disease is, by the way, the leading cause of death in the United States. Heart disease mortality rates are almost twice as high among African Americans as among Whites. Even when we examine heart disease mortality by socioeconomic status, the differences between African Americans and Whites, though significantly reduced, are not eliminated. African-American and Hispanic women both experience a higher prevalence of diabetes when we compare those groups to White women. New studies indicate 70 percent of American Indians live in urban areas, and nearly 1 in 4 of these live below the poverty level, and nearly half below 200 percent of the Federal poverty level. These rates are substantially higher than the rates for all other races combined. I mentioned income and geography. When we look at the disparities, both income and geography play a major role. For example, African- American men with incomes less than $10,000 have a heart disease mortality rate that is nearly 3 times that of their counterparts with incomes greater than $15,000. Geography is also important. Twenty percent of the U.S. population lives in rural areas. These rural communities often experience poorer overall health status than many urban communities. Notably, residents of rural communities have higher rates of chronic illnesses, such as diabetes mellitus and cardiovascular disease. They also have higher rates of disability. The reasons for these rural disparities are many. They include factors such as transportation difficulties, lack of physicians, and lack of other health services. Often the health care services that are available are much more limited than those services available to their urban counterparts, to their counterparts in the cities. Also, residents who are in rural areas are much more likely to be uninsured than those in urban areas. Last year in a speech at Morehouse University, I laid out a plan to combat these health disparities. Since that time, I reached out broadly to a whole range of constituencies, working with stakeholders and national leaders to gather input and ideas. Together we are working to ensure my proposed legislation includes the very best possible strategies to eliminate these health disparities. These efforts culminated in the introduction earlier this year of major bipartisan legislation. Two months ago, I joined with Senator Mary Landrieu, Senator Thad Cochran, Senator Mike DeWine, Senator Christopher Bond, Senator James Talent, and Senator Kay Bailey Hutchison to introduce Closing the Health Care Gap Act of 2004. This legislation builds on past bipartisan efforts to address disparities, most importantly the Minority Health and Health Disparities Research and Education Act of 2000. In this legislation, we target five key areas. First, expanding access to quality health care; two, strengthening national efforts and coordination; three, helping increase the diversity of those health professionals who are active; four, promoting more aggressive health professional education that is intended specifically to reduce the barriers to health care, several of which I have already mentioned; and five, enhancing the research to identify sources of those disparities-- racial disparities, ethnic disparities, and geographic disparities--and also to assess the intervention strategies we know today are quite promising. In addition, in closing, we know reducing and eliminating health care disparities is not going to be easy. It is going to be a huge challenge before us. Even a lot of the conversations we must have as a society are very difficult, but we must try, and I believe we can do so. When we engage in this debate, even in the heat of an election year, all of us need to keep in mind the stakes could not be higher. We are talking about the health and the lives of our fellow Americans. The only way we can make progress toward ending health disparities is by forging bipartisan solutions. Again, I commend the APHA for focusing this entire week on health care disparities. I also appreciate the efforts they have made to support this bipartisan legislation in this arena of health disparities. I look forward to working with the APHA and all of my colleagues to continue to work to combat the health care disparities that currently do plague our American health care system and, as long as those disparities exist, hurt innocent people. I suggest the absence of a quorum.

Mr. FRIST. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. FRIST

Mr. FRIST. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 338, which was submitted earlier today by Senator Murkowski.

Mr. FRIST. Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, the motion to reconsider be laid upon the table, and that any statements relating to this matter be printed in the Record.

Mr. FRIST

Mr. FRIST. Mr. President, I ask unanimous consent that when the Senate completes its business today, it adjourn until 1 p.m., Monday, April 19. I further ask that following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved for their use later in the day, and the Senate begin a period of morning business with Senators limited to speak for up to 10 minutes each.

Mr. FRIST

Mr. FRIST. Mr. President, I ask unanimous consent that notwithstanding the Senate's adjournment on Thursday, April 15, committees be authorized to file legislative and executive matters from 10 a.m. to 12 noon.

Mr. FRIST

Mr. FRIST. Mr. President, I will take another few moments to talk on a separate issue that centers on a topic that has been the subject of a lot of debate and a lot of discussion on the Senate floor and elsewhere. It is the overall topic, the phenomenon of outsourcing. Critics contend that a company's effort to deliver a product or service more cheaply and efficiently to the American consumer is hurting our economy and hurting America's workers. Indeed, this has become fodder for sound bites that I think are not justified and thus want to take a few moments to talk more broadly about what outsourcing is and what it is not. I should begin by starting with the flip side of outsourcing and that is insourcing. What is ``insourcing''? What is this phenomenon of insourcing? Well, it has been a company such as Nissan opens a plant in the United States and thereby creates high-paying jobs for American workers to the benefit of those American workers. In fact, that is the very thing that happened in Tennessee when, in 1980, Nissan opened its first plant in Smyrna. In the 1970s, Tennessee, like the rest of the country, was struggling with high unemployment several times the current rate of 5.6 percent. Then Nissan opened a manufacturing plant in Rutherford County and Rutherford County then went into high gear. A few years later, Saturn announced it was opening a plant, and today middle Tennessee is home to three major automobile factories. Nissan today employs roughly 7,400 workers and in the year 2000 paid out $27.7 million a month in payroll. That is insourcing. Mark Herbison of the county's chamber of commerce says with understandable home pride: We continue to see our existing companies grow and expand. That is because of our quality of workforce here. If you look at the Nissan plant, in 9 out of the last 10 years, they've been ranked the most productive automotive plant in North America. Because of increased demand for Nissan cars, the company has spent $1 billion to expand its Smyrna and Decherd plants. Production in Smyrna was up 40 percent in February. Moreover, Nissan's success has extended by spurring growth of a number of companies that in turn supply the plant. There are now more than 900 suppliers providing 140,000 jobs in the State. The Nashville Business Journal reports that based on its success in manufacturing, Rutherford County is now branching out to attract more white-collar jobs. Nissan is just one success of how insourcing has led to job growth. Over 400 overseas companies have U.S. subsidiaries that are employing and creating jobs just in my home State of Tennessee. The Swedish company Electrolux, previously known as Frigidaire, has a Springfield operation that employs 2,900 workers. If one looks at the size of these companies and the range, they will see there is a broad spectrum. In Australia, a corrugated box company operates a small outpost in Humboldt; a Netherlands food preparation company has an office in Chattanooga that employs 175 called Bunge Foods. Insourcing has, indeed, brought good jobs and good wages to Tennessee. Over 157,000 jobs in Tennessee are the result of insourcing. That is the flip side of outsourcing. U.S. subsidiaries support nearly 7 percent of Tennessee's private sector workforce. One might ask why do companies come to the United States of America, come to Tennessee, to create jobs and manufacture their products? Because company after company has found that insourcing is a boon to their bottom line. In turn, Tennessee workers get more and pay less for their products and the services they purchase. There is a second aspect to this whole discussion of world trade that has gotten overlooked in the debate, and that is the growth of American exports. Again, Tennessee has been a major beneficiary of the opening of foreign markets. In 2002, Tennessee exported more than $11.6 billion worth of goods, up nearly 26 percent from 1997. Tennessee exports support 232,000 local jobs, nearly one-tenth the State's total labor force, and over the last 5 years the average Tennessean exporter increased sales by nearly 16 percent, selling over $2 million in goods each year to foreign consumers. Even more notably, export-supporting jobs paid 13 to 18 percent more on average than nonexport jobs. Our focus should be to expand economic growth and promote higher wages, not to impose sanctions and restrictions on America's job creators. Listen to the words of Dyer County farmer Jim Moody. He tells a local Memphis paper: We've got to have exports to survive and do well. Farmer Moody is right, and it is not just his farm that benefits from increasing exports. It is every American who gets a good job, who gets a higher wage, and every American consumer who is thereby able to stretch their dollar a little bit further, sometimes a whole lot further. As we have all seen, especially recently in the last 6 months, our economy over the last measured 6 months is growing faster than it has in the last 20 years. America has a dynamic economy. It is true that as this economy, because of its dynamism, because of its flexibility, because of its ability to adapt, expands it at times has to shift resources, thereby resulting in dislocations. Hopefully, the dislocations are temporary. That is why it is so important for us to focus on workforce development and training. There is no question that in these dislocations workers are hurt, those who are dislocated for a period of time, but our responsibility in Government, on the Senate floor, is to respond and support them, and support them with programs of retraining, education, and of allowing these workers to adapt to this new environment. Workers who are dislocated need to be trained to find a new job but also to work at that new job. Luckily, there are a whole range of public and private sector programs that are available. According to the Government Accounting Office, there are 44 federally funded programs today that provide employment and training services. In 2002, Congress spent more than $12 billion on employment and training activities, aiding 30 million Americans with a whole range of services such as job search assistance, employment counseling, basic adult literacy, vocational training. The list goes on. The Trade Adjustment Assistance Act was expanded in 2002 to provide even more generous assistance for workers who lose their jobs because of import competition or because of shift of production to another country. Similarly, Congress has invested over $27 billion in training, under the Workforce Investment Act. That act went into effect in 2000, and it is over $27 billion since that point in time. Its hallmark is the one- stop career center, and that provides job seekers with a single location to access a whole host of resources, including unemployment insurance, job market information, job training, and job search assistance. We reauthorized the bill last year with strong bipartisan support in this body, the Senate. But, unfortunately, the Senate Democrats have blocked this bill from going to conference. Again, we passed it--I think it was even unanimous--in the Senate, and the House has passed such a bill. But right now we are being blocked from going to conference. As a result, they are holding up a vital and much needed improvement to the program that spends more than $5 billion a year on job training and other valuable assistance. People say they want to help workers. But by blocking us going to conference on these bills, that, again, passed the House and the Senate, it is more just talk where we need to deliver that action. That is what the American people want. That is what they need. It is what they deserve. So again I appeal to the other side of the aisle, please let us go to conference on this important bill for the good of the American people. We need to help workers find good-paying jobs, to retrain them if they need it, to get the support they need, to get them back on their feet. Every American who needs a job should be able to get a job. We should be willing to work hard together to expand the economy and to tackle whatever structural problems exist that hinder job creation. You have seen numerous attempts on the floor of the Senate, most recently a couple of days ago, that are aimed at controlling things such as litigation, unnecessary litigation costs that do, in effect, cripple economies, both at the macro and the micro level. It is estimated that frivolous lawsuits in this country today are costing the economy $200 billion a year. If you assume a salary of, say, $50,000 a year, that is the equivalent of 4 million jobs caused by frivolous lawsuits--4 million jobs that could lower the unemployment rate. We see the effects of frivolous lawsuits most dramatically in my own profession. You see it across the board, and we debated it again on the floor yesterday, and we were unsuccessful, with a filibuster of that particular legislation. But we talked a lot about the issues in terms of the impact on people--expectant mothers, in terms of their access to obstetricians. We looked at it in terms of trauma units and emergency rooms, where specialists, high-risk specialists are simply saying they can't afford the malpractice insurance that is being charged to them and therefore are not going to take trauma anymore, and not going to work in emergency rooms anymore because they simply cannot afford that insurance. That ends up affecting the health care of all of us--all of us who might need that emergency room tonight or their trauma center tomorrow or that mom or expectant mom who needs an obstetrician. We find doctors who are moving. We find doctors in Pennsylvania moving out to California and moving down South because of medical liability. We find doctors leaving their local communities. We find doctors, in fact, even retiring from medicine. A recent study by a University of Nevada Medical School professor found that 42 percent of obstetricians are planning to move their practices out of southern Nevada. And if they do, Las Vegas will have 78 obstetricians to deliver 23,000 babies each year. So how many babies will get medical care and how many babies will not get medical care if that is to occur? These are the real-life consequences of surreal courtroom dramas that take place. It is the reality of today. That is why, on this particular issue--although it was filibustered yesterday and was filibustered about 2 months ago and was filibustered back in July--we are going to continue to bring it back because it is reality today. It is affecting people's lives. The Senator from Delaware was just on the floor talking about the out-of-control asbestos lawsuits. There, once again, you see effects that are very similar in that they are severe and the people who most need help no longer are getting that help. The approximately 600,000 claims that have been filed have already cost $54 billion in litigation costs, in judgments, in settlements. Over 70 companies so far have declared bankruptcy under the crush of asbestos lawsuits. It is a problem that is bad. It has gotten worse in recent years. In the very recent years it has even gotten worse in terms of the bankruptcies, in terms of the money not reaching the victims themselves or even the potential victims but being siphoned off by frivolous suits by people who may be a little less scrupulous than any of us would like. More than a third of the bankruptcies have taken place in the last 3 years. In other words, it is getting worse and worse. These are huge companies: Johns Manville, Owens Corning, US Gypsum, WR Grace; over 90 percent of American industries are in some way affected. Even companies that have little or no direct connection to asbestos are now being targeted for legal annihilation. Asbestos-related bankruptcies have already cost more than 60,000 jobs. It is a broken system. The reason we plan in the future bringing it to the floor--I introduced the bill with Chairman Hatch last night--is that we must make progress. I believe we have the responsibility to address this unfair system that is hurting the American people. I know we have the power to do it. Now we just need to show that we have the will. What started out as a quest for justice in the courts has, unfortunately, evolved into a wild litigation lottery, but it is something we can fix and I believe we will fix. I will have to say in the lottery today--this out-of-control lottery that has now become the sort of system itself--there is only one winner, and that is plaintiffs' trial lawyers. It is not the victim or the person who is potentially hurt. People who are hurt by the negligence of others deserve justice. But so do people who are hurt by a system that is driving doctors out of the practice of medicine, that is driving companies out of business, and driving jobs out of the economy. Every day we encourage America's job creators to grow and expand and to compete in this world market. Yet at the same time we are burdening them with unnecessary, and I would argue unfair, litigation practices that ultimately amount to a hefty tax, which makes them less competitive in the world marketplace. In the manufacturing sector we have spent so much time on the FSC/ETI bill and the JOBS bill, talking about them, saying we must address them. It is reported that excessive regulations have added 22.4 percent to the cost of doing business. In closing, if we want American companies to be competitive, which we all do, if we want them to be strong, if we want them to be vital, if we want them to grow, if we want them to create jobs, we have an obligation, too, and we need to make the system fair. We can't ask these companies to run this great race to prosperity and then bind them up at the same time in miles and miles of redtape and unnecessary, frivolous lawsuits. America's entrepreneurs are smart, they are dynamic, they are productive, they are highly competitive. And so are America's workers. We need to pursue policies that allow us both to maximize their potential, and also their prosperity potential. We need to pursue policies that, indeed, keep America moving forward. I yield the floor.

Mr. FRIST

Mr. FRIST. Mr. President, I ask unanimous consent that notwithstanding the upcoming recess or adjournment of the Senate, the President of the Senate, the President of the Senate pro tempore, and the majority and minority leaders be authorized to make appointments to commissions, committees, boards, conferences, or interparliamentary conferences authorized by law, by concurrent action of the two Houses, or by order of the Senate.

Mr. FRIST

Mr. FRIST. I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, and the motions to reconsider be laid on the table en bloc.

Mr. FRIST

Mr. FRIST. Mr. President I move to reconsider the vote.

Mr. FRIST

Mr. FRIST. Mr. President, on Monday, April 19, the Senate will be in a period of morning business. I have stated it is our intention at this juncture to proceed to the consideration of S. 2290, the asbestos bill. Although we don't have an agreement on proceeding to the bill, we will continue to have discussions with the Democratic leadership in an effort to move forward on this legislation. A few moments ago we reached an agreement which limits amendments to the FSC/ETI bill or the JOBS legislation. I know the Democratic leader worked in good faith to limit amendments on his side, and he has witnessed firsthand that I have had my hands full throughout the day as well. The attempt was made to limit the number of amendments as much as we possibly could. I feel that is what we have done. But I am personally disappointed we can't get the list smaller, especially on amendments that are totally unrelated. The agreement we entered into is to define the universe of amendments, and I would expect and encourage the managers to continue to work to whittle down that list appropriately. I expect them to do so, and that was the nature of the discussion we had today. All of us know the calendar is working against us and we absolutely must, with the sanctions having an impact today and increasing every month, find a way to get this bill done. I don't believe it should be necessary--I hope my colleagues agree--to consider four pages of amendments. Again, I encourage the managers to work with all of our colleagues to limit the number of amendments we ultimately consider. As I previously announced, we will not be having rollcall votes on April 19. A number of colleagues will want to talk on the issues, including asbestos, and they will be able to do that on Monday. Having said that, I wish all of our colleagues a safe and happy recess. Mr. President, I suggest the absence of a quorum.

Mr. FRIST

Mr. FRIST. Mr. President, if there is no further business to come before the Senate, I ask unanimous consent that the Senate stand in adjournment under the provisions of H. Con. Res. 404.

Mr. FRIST

Mr. FRIST. Mr. President, I ask unanimous consent that the Foreign Relations Committee be discharged from further consideration of S. Res. 326, and the Senate proceed to its immediate consideration.

Mr. FRIST. Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, the motion to reconsider be laid upon the table, and that any statements relating to the resolution be printed in the Record.

Mr. FRIST

Mr. FRIST. Mr. President, I ask unanimous consent that the amendment at the desk be agreed to, the committee substitute, as amended, be agreed to, the bill, as amended, be read a third time and passed, the motions to reconsider be laid upon the table en bloc, and that any statements relating to the bill be printed in the Record.

Mr. FRIST. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 428, S. 129.

Mr. FRIST

Mr. FRIST. Mr. President, I ask unanimous consent that during the adjournment of the Senate, the majority leader be authorized to sign duly enrolled bills or joint resolutions.

Mr. FRIST

Mr. FRIST. I ask consent that the resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table en bloc, and any statements related to the resolution be printed in the Record.

Mr. FRIST. I ask unanimous consent that the Senate now proceed to the consideration of S. Res. 337, submitted by Senator Murkowski earlier today.

Mr. FRIST

Mr. FRIST. Mr. President, I ask unanimous consent that the Foreign Relations Committee be discharged from further consideration of S. Res. 328 and that the Senate proceed to its immediate consideration.

Mr. FRIST. Mr. President, I ask unanimous consent that an amendment from Senator Nelson of Florida, which is at the desk, be agreed to, the resolution, as amended, and the preamble be agreed to en bloc, the motion to reconsider be laid upon the table with no intervening action or debate, and any statements related to the resolution be printed in the Record.

Mr. FRIST

Mr. FRIST. I will respond to both of these issues. Asbestos is an issue the Senator from Delaware and I know the Democratic leader feel strongly about. It is an important bill, a bill we should address. We need to figure out the way to best address it. The introduction of the bill is an attempt to advance the law so we can address it. We will continue discussions as the best way to address it. Regarding the FSC/ETI, the JOBS bill, as he said, we have more amendments than either of us would like. It has been difficult to get it to the point we did. But it, too, is a bill we absolutely must address and we will continue to address. I am hopeful over the recess, regarding both of these bills, Members will look at, spend time with, and discuss and debate them in a bipartisan way.