Amicus Curiae Brief — Barnhart v. Sigmon Coal Co.

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Supreme Cowst, U.S

PIITEenr

i Me

JUL 24 200)

SS ec |

IN THE ee

Supreme Court of the United States

No. 00-1307

LARRY G. MASSANARI,

ACTING COMMISSIONER OF SOCIAL SECURITY

Petitioner,

Vv.

SIGMON COAL COMPANY, INC. AND

JERICOL MINING, INC.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF AMICUS CURIAE

R.G. JOHNSON COMPANY, INC.,

IN SUPPORT OF RESPONDENT

MARY LOU SMITH

(Counsel of Record)

Howe, Anderson & Steyer, P.C.

1747 Pennsylvania Avenue

Suite 1050

Washington D.C. 20006

(202) 296-5680

Attorneys for Amicus Curiae

Dated: July 24, 2001

Balmar Legal Publishing Services, Washington, DC 202-682-9800

BEST AVAILABLE COPY

TABLE OF CONTENTS

PAGE

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INTEREST OF THE AMICUS CURIAE RG.

FORTIS CUEIPAINY , BEGC ccccecsscccsccsecscvsccsssecsscesscseceees |

EPR CRI SS GEE CUTE GPUIIED cccrcccccseccccsnasesescnzssnessezssvscsncnansseetes 2

A. The Government’s Assignments to R.G.

Johnson ....... Ssspunsneeunseusuesuusnsnepensenscesssosensevevessensszecs 2

B. The Court of Appeals’ Decision in R.G.

Johnson and the Nature of the Split in the

ID cecncccssesnensnasnsessvencsansensnesssnsosnnesvensesesssssssvend 4

C. The Legislative Setting for Enactment of the

SE FAGE cenccssccnssncnsussatuccsemmnenmsavessenemsenssrsserenssscsesent 6

D. The July 27, 1992 Senate Legislative Counsel

re ee Fee acstccctnsssncccenenecteninscseeneneens 10

E. The Passage of the Coal Act ..............ccssesscesseeeeees 14

SUMMARY OF AIRGIUIEEIN D cccccccsscccccssccsccscecescevscvecscsscsccsceceees 14

FEF CS cctcensensennerennnsnesnmnenessnveescsememnssaneseerenmanesanseneneanen 15

lL THE GOVERNMENT’S NEW TEXTUAL

ARGUMENT IN SUPPORT OF ITS

“SUCCESSOR IN INTEREST TO A

SIGNATORY OPERATOR” THEORY

SHOULD BE REJECTED AS A PROPER

BASIS FOR IMPOSING LIABILITY UNDER

IL THE OMISSION OF THE TYPE OF

SUCCESSOR LIABILITY AT ISSUE IN THIS

CASE FROM THE COAL ACT WAS

INTENTIONAL 18

I Bae S cevensessansesenvenscnsensssssvesesesssessessessssnsnvasentnessonesesessenee 20

TABLE OF AUTHORITIES

CASES Page(s)

Aloe Energy Corp. v. Apfel, No. 99-3915 (June 20,

2000), petition for cert. pending, No. 00-725. ..........ccceeeees 5

Association of Bituminous Contractors, Inc. v. Apfel, 156

F.36 1306 CAC. Cap. IGGE). .ccccsecssssvsessensscinnienenmaneninnaianna 3

Eastern Enterprises v. Apfel, 524 U.S.498 (1998)...........000 4,6

Eastern Enterprises v. Chater, 110 F.3d 150(1" Cir.

0997’) .-.cescescsosenssseessosanccesssenensiesiiionnenamntaniiaeala 4,5

R.G. Johnson v. Apfel, 994 F.Supp. 10 (D.D.C. 1998)............ 2

R.G. Johnson Company, Inc. v. Apfel, 172 F.3d 890

CDC. Cis. IDDP) ..crccssccssscsscsessevcessonseinctasnsniinnamianaaaaan l

STATUTES AND LEGISLATIVE MATERIALS

“Coal Industry Health Benefit Stabilization Act of

See So Ee 6

“Coal Industry Retiree Health Benefit Act of 1991,"

8.1900, 163" Comp... 8° 9000 sninisssssscetnentnianeee 8

Coal Industry Retiree Health Benefit Act of 1992............... 2,9

26 U.S.C. § 9701 11

26 U.S.C. § 9701(cK1) 16

26 U.S.C. § 97O1(cCK 1A) 12

26 U.S.C. § 9701(cX2) 10, 16

26 U.S.C. § 9702 13

26 U.S.C. § 9703 13

26 U.S.C. § 9704 13

26 U.S.C. § 9705 13

26 U.S.C. § 9706 13

26 U.S.C. § 9706(a) 13

26 U.S.C. § 9706(aX3) 13

26 U.S.C. § 9706(b) 13

26 U.S.C. § 9706(b\2) 13, 20

TIT Wl cccicenssntsseecescsecssncesecscscssesssceczeseocsees 14

Multiemployer Pension Plan Amendments Act of 1980 ......... 6

Tax Fairness and Economic Growth Act of 1992..00........ccc0 9

135 Cong. Rec. $12312 (October 2, 1989) ........ccccccceeeeeseeees 6

137 Cong. Rec. SI7061 (Nov. 19, 1991)... cccccccccesseeeeeeenenees 8

138 Cong. Rec. $3433 (March 12, 1992) .......ccccccceeeeeeeeeneenes 9

138 Cong. Rec. $17604 (October 8, 1992) .......ccccccceeeeeeeenees 14

MISCELLANEOUS

Idelson, Bill to Set National Policy Remains Blocked

Over Coal-Tax Provision, 50 Cong. Q. Wkly.

BE PGI, BO Pcccccceccccccessseccscessecscecccesnssccoscoecseees 10

Idelson, Bills to Cut Oil Dependence Finally..Head to

Conference, 50 Cong. Q. Wkly. Rep. 2261 (August 1,

iaielaeeieeadeteerepnanestenmnccentnntunsenenscsenecseocecseveceecssececcccece 10

INTEREST OF AMICUS CURIAE

R.G. JOHNSON COMPANY, INC.

This brief amicus curiae is filed in support of the

Respondents, Sigmon Coal Company, Inc., ef al.' R.G.

Johnson Company, Inc., is a party to the primary case cited by

the government as creating the split in the circuits on the issue

presented here. R.G. Johnson Company, Inc. v. Apfel, 172

F.3d 890 (D.C. Cir. 1999). R.G. Johnson believes that the

opposing point of view from R.G. Johnson should be

available for the Court's use as it considers the government's

position. The Court should not be limited to what the

government has chosen to bring to the Court's attention, as

supplemented by the trustees of the United Mine Workers of

America Combined Benefit Fund.”

R.G. Johnson also has a direct interest in the outcome of

the Sigmon case now before the Court. The court of appeals

in R.G. Johnson remanded the case to the district court where

it is still pending. The Court’s decision in Sigmon’s case

could affect, if not control, the issues which are the subject of

the ongoing district court proceedings in R.G. Johnson's case.

Because of the potential consequences, R.G. Johnson urges

the Court to consider the additional background material and

arguments, including a summary of relevant events ignored

by the government, set forth below.

' This brief is filed concurrently with the written consents of the

parties. No counsel for a party authored this brief in whole or in part, and

no person other than the amicus curiae has made a monetary contribution

to the preparation and submission of this brief.

* The trustees of the Combined Fund, appearing as amicus curiae in

support of the government in this case, were defendant-appellants in R.G

Johnson.

STATEMENT OF THE CASE

The government has framed the issued in the case before

the Court as whether the Coal Industry Retiree Health Benefit

Act of 1992 permits the Commissioner of Social Security to

assign beneficiaries to the successor in interest of a signatory

operator that is no longer in business. As discussed more

fully below, the same issue arises in R.G. Johnson's case.

The government assigned beneficiaries (retirees and their

dependents) to R.G. Johnson based the retirees’ one-time

employment by another company which was found to be no

longer in business for Coal Act purposes. While the

government did not consistently represent the basis for the

assignment at various stages of the process for making and

reviewing assignments, it eventually settled on the “successor

in interest to the signatory operator” theory. R.G. Johnson's

case therefore presents a comparable case for the Court's

consideration.

A. The government’s assignments to R.G. Johnson

R.G. Johnson was first notified of its potential liability

under the Coal Act in 1995. The government sent form letters

to R.G. Johnson informing it of the assignment of 15

beneficiaries based on the retiree-beneficiaries’ former

employment by a different company with a similar name,

“The R.G. Johnson Company.” The old company had itself

been assigned the beneficiaries in question in 1993, but the

government had overturned those assignments apparently

because the old company, while still in existence, was found

to be no longer in business.’

R.G. Johnson is a closely-held Pennsylvania company

incorporated in 1988. As of 1988, the old company, a

The general background of R.G. Johnson's case is set forth in the

district court's decision , R.G. Johnson v. Apfel, 994 F.Supp. 10 (D.D.C.

1998), and the court of appeals’ decision setting aside the district court's

decision, 172 F.3d 890.

Delaware corporation, had been in the business of performing

shaft and slope construction for coal company customers for

many years. It had been signatory to collective bargaining

agreements with the United Mine Workers of America

covering construction work and had been a member of the

Association of Bituminous Contractors, Inc., a multiemployer

bargaining association whose members are construction

contractors.”

In April 1988, R.G. Johnson purchased the operating

assets and certain real estate from the old company. It

embarked on the business of shaft and slope construction

under wholly new ownership. While R.G. Johnson employed

many individuals who were formerly employed by the old

company, it never employed the retirees who were

subsequently assigned to it by the government.

In response to the government’s notices, R.G. Johnson

denied that it was properly liable for the individuals it had

been assigned. Eventually, the government affirmed the

assignments by way of summary dispositions that never fully

explained the government's rationale. The government

alternately claimed that R.G. Johnson was a “related person”

to the old company, or that it was a “successor” to the old

company. R.G. Johnson then brought suit in federal court

against both the government, who made the assignments, and

the Combined Fund, which collects premium payments based

on the number of beneficiaries assigned by the government.

The district court granted summary judgment in R.G.

Johnson’s favor. The district court agreed with R.G. Johnson

that the definition of “related person” does not include a

successor in interest to a signatory operator and that the

legislative history offers no basis for rejecting the plain

meaning of the statute.

* ABC’s history of collective bargaining with the UMWA and its

experience under the Coal Act is recounted in Association of Bituminous

Contractors, Inc. v. Apfel, 156 F.3d 1246 (D.C. Cir. 1998).

B. The court of appeals’ decision in R.G. Johnson and

the nature of the split in the circuits

On appeal, the District of Columbia Circuit agreed with

both of the district court’s conclusions on what the statute, as

written, says. That is, it does not support the government's

position either on its face or in light of its legislative history.

Nevertheless, the panel majority (Circuit Judge Williams and

Senior Circuit Judge Buckley) ultimately ruled against R.G.

Johnson on the statutory interpretation issue, finding that this

was one of those rare cases in which the plain language of a

statute could be ignored because a literal application of the

statute’s provisions would produce a result at odds with its

drafters’ intentions. In dissent, Circuit Judge Randolph

explained why construing the statute as written does not

render it inscrutable and why the majority’s alternative

approach is problematic.

Consistent with the District of Columbia Circuit's

decision, the Fourth Circuit in the case now before the Court

similarly rejected any claim of literal statutory support for the

government's position. Where the Fourth Circuit majority

split with the District of Columbia Circuit majority was on the

question of whether there was any justification for refusing to

apply the statute as written. On that particular point, the

Fourth Circuit majority agreed with Circuit Judge Randolph's

conclusion and refused to depart from the plain language of

the statute. Circuit Judge Murnaghan, in dissent, would have

followed the majority opinion in R.G. Johnson.

In Eastern Enterprises v. Chater, 110 F.3d 150, 154-55

(1" Cir. 1997), reversed on other grounds, Eastern Enterprises

v. Apfel, 524 U.S. 498 (1998), the First Circuit had previousiy

reached the same conclusion as the Fourth Circuit. The

Eastern Enterprises case is noteworthy because the

government there argued successfully in favor of the position

which it is now asking this Court to reject. Specifically, the

government endorsed an interpretation of the statute which is

consistent with the position taken by R.G. Johnson and

respondents in the case now before this Court." The

government's current brief to the Court provides no

explanation for the government's change of course since its

victory before the First Circuit in Eastern Enterprises v.

Chater.’

In an unpublished decision, the Third Circuit relied on

the majority opinion in R.G. Johnson to find in the

government's favor. Aloe Energy Corp. v. Apfel, No. 99-3915

(June 20, 2000), petition for cert. pending, No. 00-725. The

Third Circuit’s decision indicates an acceptance of both

holdings from R.G. Johnson, namely that the plain meaning of

the statute does not support the government but that this is an

exceptional case in which the government nonetheless

prevails. As this summary of the circuit court decisions

suggests, the split in the circuits on the issue currently before

the Court rests in large part on the parsing of historical events.

The government’s current position is that Congressional

intent to sanction the assessment of liability against the

“successor in interest to the signatory operator” can be

gleaned from this history. The court of appeals below found

no justification for this type of successor liability. In order to

present the Court with a full picture of these historical events,

a summary of the legislative proposals which preceded the

Coal Act are described below.

* The pertinent parts of the government's brief at the district court level

in the Eastern Enterprises case were included in the R.G. Johnson record

and are attached to this brief at | a-8a.

* In its petition for a writ of certiorari to the Court in this case,

the government made the misleading statement that the First Circuit

“rejected the Commissioner's position.” Pet. at 13. To the contrary, the

First Circuit, in a unanimous decision, accepted what was then the

government's position. The First Circuit had no opportunity to consider

what is now the government's stated position.

C. The legislative setting for enactment of the Coal Act.

The Coal Act represents a legislative response to want

Congress found to be a crisis in the previously private

mechanism for funding the health care of retired coal miners

represented by the United Mine Workers of America and er

dependents. Solutions to the underlying problem of fu ing

retiree benefits were attempted in the context of _—

bargaining beginning in 1974, but . the problem — '

conclusive resolution and caused recurring strife in the | S

and 1980's. The Court recounted this history in Eastern

Enterprises v. Apfel, 524 U.S. 498 (1998), supra.

The first legislative solution was proposed in 1989. be

proposal was entitled the “Coal Industry Health Bene “

Stabilization Act of 1989.” S.1708, 101 Cong.., 1” Sess. -

would have imposed withdrawal liability in the context 0

medical benefit plans, i.e. it would have required employers

who ceased to contribute to the plans to pay a proportionate

share of the benefit plan’s calculated future liability. This

approach was patterned on the well-known pension plan

withdrawal liability provisions of the Multiemployer ame

Plan Amendments Act of 1980. See 135 Cong. Rec. $12312

(October 2, 1989).

bilization Act enjoyed joint labor-management

wana a UMWA and certain large coal ox

companies whose employees were represented by

UMWA. Because of this initial show of support, the Senate

Finance Committee which undertook consideration of this

proposal in connection with the Budget Reconciliation Act

was apparently unaware that there would be any —

opposition to the substance of the proposal. Gace e

proposal became widely known, however, opposition _

The apparent lack of a deliberative process fueled —a

opposition to the 1989 proposal, and it was withdrawn from

the budget process.

i i i legislative

In light of this experience, supporters of a

response aa steps to improve the public perception of the

process and the consideration of alternative solutions. In

1990, then Secretary of Labor Elizabeth Dole announced the

creation of the Advisory Commission on United Mine

Workers of America Retiree Health Benefits. the so-called

Coal Commission. The Chairman of the Coal Commission

was former Secretary of Labor William J. Usery and the Vice

Chairman was law professor law Henry H. Perritt, Jr. The

members of the Coal Commissioner included the president of

the UMWA, representatives from three companies engaged in

coal mining (Bethlehem Steel Corporation, Pittsburg and

Midway Coal Mining Company and Peabody Coal Company)

and representatives of organizations in the health and actuarial

fields.

The three coal mining companies with members on the

Coal Commission were all parties to collective bargaining

with the UMWA. There were no representatives from non-

union coal mining companies or from companies who had

once had some historical connection to the UMWA but no

longer did. There were also no representatives from the

construction industry.’

The Coal Commission gathered information from a

number of sources and issued a report on November 5, 1990."

While, as expected, the report contained a number of

recommendations, it did not include a consensus on the

appropriate financial solution. A majority of the Coal

Commission endorsed an industry-wide tax on coal while the

dissenting members of the Coal Commission argued that the

problem was created by the limited UMWA-represented

segment of the industry and a solution should similarly be

limited to this segment.

” While it is perhaps obvious, for the record it should be noted that

R.G. Johnson was not a party to the Coal Commission's proceedings.

* According to the brief filed by the trustees of the Combined Fund, a

copy of the Coal Commission report has been lodged with the Court.

Brief of the Trustees as Amici Curiae at 3, n.4.

The absence of majority support for an industry-wide tax

is particularly striking since the Commission did not include

representatives from the non-UMWA represented segment of

the industry. Former signatories to UMWA agreements, as

well as the non-union coal producers, had the opportunity to

appear and submit statements prior to the issuance of the Coal

Commission’s report, see report at 117 and 119 (Appendix 8

and Appendix 9), but had no opportunity to review oF

comment on the recommendations contained in the report in

advance of its issuance.” Thus, parties who were likely to

have the strongest objection to legislative action patterned on

the majority's recommendation had no voice in preparing the

report. Even so, the Commission still could not garner

unanimous support for ts industry-wide approach. The Coal

Commission’s recommendations would likely have been

different if all of the potentially affected parties had had a

voice on the Commission itself.

Following issuance of the Coal Commission’s report,

hearings were held by the Senate Finance Committee's

Subcommittee on Medicare and Long-Term Care in 1991."

In November 1991, a new legislative proposal was

introduced, entitled the “Coal Industry Retiree Health Benefit

Act of 1991.” $.1989, 102” Cong., 1" Sess. This proposal

would have created a “Coal Industry Retiree Health Benefit

Corporation,” whose five-member board of directors was to

consist of private parties chosen from labor and management

and appointed by the Secretary of Labor. This corporation

would have been responsible for collecting “premium”

payments imposed on coal tonnage and employee hours in

addition to per beneficiary “premiums” assessed against the

beneficiary’s former employer or last signatory operator. See

137 Cong.Rec. $17061 (Nov. 19, 1991).

* Also excluded were parties, such as R.G. Johnson, who were unaware

that the Commission might make a recommendation that would not be

construed as affecting them until some distant point in the future.

. Again, R.G. Johnson was not a party to these proceedings.

Despite the careful choice of terminolo idi

of the word “tax,” this legislation was sie dates

Imposing a tax on coal production. In March of 1992, a

revised version of the bill, which was still based on the tax

approach and given the updated title, “Coal Industry Retiree

sag Benefit Act of 1992,” was introduced. See 138 Cong

Rec. $3433 (March 12, 1992). It was included in the “Tax

aimess and Economic Growth Act of 1992,” which was

vetoed by then President George Bush on March 20, 1992

The version of the “Coal Industry Reti

Act of 1992” which eventually seme saenpetiynene er

Senator Rockefeller on July 29, 1992. It was desiienty

yp its similarly named predecessors in several respects. It

wd na a any type of direct tax on coal production or

reanegn in the industry. Rather, it incorporated features

4 competing proposals which had anticipated transfers

of funds from the Abandoned Mine Lands Trust Fund and

from the UMWA 1950 Pension Fund.'' Most significantly, it

contained a wholly new funding feature which had not

agen — re red of ne ome proposals dating

) ’ . arlier in , namely, i

private body, the Combined Benefit Fund. ae ania

run by private individuals but whose beneficiaries would be

assigned to former employers By a governmental body.”

The version of the legislation under ion i

consideration in Jul

1992 was the first instance which included a proposal for the

On February 27, 1992, R

</, <, Representative Rahall had introduced H

4344, which proposed a transfer of AML Funds to the Pen ag

Socios Hosit Benedh Act. S109. ous tomeded mete

t., . It was intended to suppleme

na ees bill. On April 8, 1992, Senator Boren had aenia —

ert have transferred excess pension funds from the 1950 Pension

to the 1950 and 1974 Benefit Funds. $2550, 102™ Cong. 2™ Sess

12 . )

Originally, the legislative record

. referred to the Department of

— and Human Services, but these duties are now with the

ommussioner of Social Security. See Brief for the Petitioner at 6, n.4.

government to play any role in the assessment of liability

against former employers. None of the prior proposals had

anticipated the government generally, or the Social Security

Administration in particular, taking an active part in

identifying liable parties or otherwise administering a

program of retiree benefits for UMWA retirees and their

dependents.

D. The July 27, 1992 Senate Legislative Counsel Draft of

the Coal Act

While the above is a summary of legislative proposals

that were introduced in Congress, there was significant

behind-the-scenes activity before the emergence of the July

29, 1992 version of the legislation. During the week of July

20", the White House had “jumped into talks” with key

senators, focusing efforts on non-tax alternatives such as

tapping the mine workers’ over-supplied Pension fund and

setting up a system for assigning retired miners to companies

linked to their original employers. Holly Idelson, Bill to Set

National Policy Remains Blocked Over Coal-Tax Provision,

50 Cong. Q. Wkly. Rep. 2166 (July 25, 1992). On July 23,

1992, Senator Rockefeller held an afternoon news conference

with the president of the UMWA to announce that the sides

were “very close.” Jd. Negotiators worked through the

weekend (July 25” and 26”) to reach an accord on the coal

issue, and by July 28, 1992 were confident that a deal was set.

Holly Idelson, Bills to Cut Oil Dependence Finally Head to

Conference, 50 Cong. Q. Wkly. Rep. 2261 (August 1, 1992).

On Monday, July 27, 1992, two days before the version

of the Coal Act which eventually became law was introduced,

a draft proposal prepared by the Senate Legislative Counsel

was circulating which is noteworthy by comparison to the

Coal Act itself. This draft, taken from the record of the R.G.

Johnson case, is attached to this brief at 10a-39a.

First, the Senate Leg. Counsel draft included a section

setting forth “Findings and Declaration of Policy. Two

findings were identical to those included with the Coal Act:

That the production, transportation, and use of coal

substantially affects interstate and foreign commerce and the

national public interest (finding (1) in both) and that, in order

to secure the stability of interstate commerce, it is necessary

to modify the current private health care benefit plan structure

for retirees in the coal industry to identify persons most

responsible for plan liabilities in order to stabilize plan

funding and allow for the provision of health care benefits to

such retirees (finding (1) in the Senate Leg. Counsel draft and

finding (4) in the Coal Act). The Statement of Policy was

also identical: To remedy problems with the provision and

funding of health care benefits with respect to the

beneficiaries of multiemployer benefit plans that provide

health care benefits to retirees in the coal industry; to allow

for sufficient operating assets for such plans; and to provide

for the continuation of a privately financed self-sufficient

program for the delivery of health care benefits to the

beneficiaries of such plans. Appendix at 10a; 26 U.S.C. §

9701 (Historical and Statutory Notes).

The difference between the two is that the Senate Leg.

Counsel draft included two other findings which did not

accompany the later Coal Act: That an important element in

the privately maintained benefit plans now experiencing

financial difficulty has been the provision of health benefits

for retirees of companies no longer contributing to the coal

retiree health funds; and that withdrawals of contributing

employers from privately maintained benefit plans maintained

under collective bargaining agreements and covering retirees

in the coal industry have resulted in substantially increasing

funding burdens for employers that continue to contribute to

such plans, adversely affecting the stability of labor-

management relations in the coal industry.

Turning to the statutory provisions themselves, the

Senate Leg. Counsel draft included identical definitions of

general applicability (Section 9701) for plans and funds,

agreements, and terms relating to operators, with the

following significant exceptions.

First, the Senate Leg. Counsel draft defined a signatory

operator in Section 9701(c)(1)(A) to mean a person which is

or was a signatory to a coal wage agreement (the same as

Coal Act Section 9701(c)(1)), or:

(B) in the event a person described in subparagraph

(A)is no longer in business, any successor to such

person.

Appendix 13a. Next, while the “related person” definition

was structured the same as the ultimate Coal Act provision

(with three related person categories and an unnumbered

catch-all provision at the end), the draft’s category (ili) was

different than the joint venture interest included in the Coal

Act. The Senate Leg. Counsel draft instead referred to the

Secretary of Health and Human Services'’ identifying any

other person having an ownership or profit-sharing interest

with a signatory operator in a business within the coal

industry. Jd. The catch-all provision was also different, in

that it provided that “A related person shall also include a

successor of any person described in clause (i), (ii), or (iii).”

Appendix 15a (emphasis added). This is as opposed to a

“successor in interest,” the phrase used in the Coal Act.

Finally, the Senate Leg. Counsel draft included a specific

definition of “successor,” specifying that the term has the

meaning given it under the National Labor Relations Act.

Appendix 16a. There is no comparable definition of either

“successor” or “successor in interest” in the Coal Act.

It is also noteworthy, that despite the specific provisions

addressing signatory operator successor liability and defining

what it means to be a successor, the catch-all provision in the

“related person” definition was structured the same as the

definition included in the Coal Act, i.e. with a reference to

any person “described in clause (i), (ii) or (iii).” Appendix

15a.

"As noted earlier, the role initially played by HHS now rests with

Social Security.

The next statutory provisions establishing the Combi

Fund (Section 9702), addressing plan benefits (Section 9703).

setting forth the liability of assigned operators (Section 9704)

and providing for transfer of assets from the 1950 Pension

Plan and the AML fund (Section 9705) are the same in the

Senate Leg. Counsel draft and the Coal Act. Section 9706,

the provision under which the government assigns

beneficiaries, is also identical in most respects, but differs

from the Coal Act in certain respects which are pertinent here.

First, Section 9706(a) of the Senate Leg. Counsel draft

directed the government to “assign each coal industry retiree

who is an eligible beneficiary to a signatory operator which is

in business” in a specified order. Appendix 30a. The Coal

Act provision 9706(a) is the same, except that it includes the

parenthetical “(or any related person with respect to which)”

after the phrase signatory operator."

Next, unlike Section 9706(b) of the Coal Act, which

concems “Rules relating to employment and reassignment

upon purchase” (emphasis added), the Senate Leg. Draft did

not include a provision addressing post-enactment

successorship. Coal Act Section 9706(b)(2), however,

specifically addresses the optional transfer by an assigned

operator to a post-enactment successor, and, notably, not a

successor in interest.”

_The third assignment category, which the Court held

unconstitutional in Eastern Enterprises, was also phrased differently,

referring oe Spay eae who employed the retiree for a longer

oe time than any other signatory operator “during all periods before

-- Appendix 30a. The Coal Act instead includes the phrase “prior to

the a date of the 1978 coal wage agreement.” 26 U.S.C. §

9706(a)(3).

E. The passage of the Coal Act

The July 29, 1992 proposal subsequently was enacted as

part of the Energy Policy Act of 1992, signed into law on

October 24, 1992 without any change. No hearings were held

on any of the July 29, 1992 provisions before the Coal Act

became law. Whatever had occurred during the behind-the-

scenes negotiations involving key senators and the Whie

House in July 1992 established what would be the final

statutory scheme.

The conference report associated with the Energy Policy

Act contains no explanation of what was meant by any

particular provision of the Coal Act." The isolated statements

which were entered into the Congressional Record concer=:.ing

the Coal Act in October 1992 were not a part of the actual

Energy Policy Act conference report, although various parties

have been confused by the heading “Conference Report” that

was associated with the “technical explanation” offered by

Senator Wallop. See 138 Cong. Rec. $17604 (October 8,

1992). Despite this title, there is nothing in any of the

legislative materials to indicate the status of this “technical

explanation” is anything other than a statement entered into

the record at the request of a member of Congress.

SUMMARY OF ARGUMENT

The plain language of a statute notifies affected parties

of both their rights and obligations. When interpreting the

Coal Act, Respondent Jericol Mining, like R.G. Johnson,

reasonably relied on the statute as_ written to support its

refusal to take on the liability which the government now

seeks to impose. The reasonableness of this view was

enforced by the government’s own actions. No notice was

given that assignments would be made on the basis of a

“successor in interest to a signatory operator” theory, and the

‘S Attached at Appendix 40a-48a is the relevant portion of this

conference report, similarly taken from the record in R.G. Johnson.

government was, in fact, was , —

such liability in 1995. Promoting the position of no

r Without explaining the change in its position since it

vocated a different view in Eastern Enterprises, the

government now finds that Congress, by way of a tortured

ee of a single Provision of the Coal Act that ignores

ae — . on Fund liability to flow to a direct

in {© a signatory operator.” Absent

direct support in the Coal Act or otherwise, the quemanens

relies on legislative materials of dubious authority to provide

se = of respectability for this claim. The government asks

rm ourt ‘“ look to this legislative gloss as being the end of

Even assuming that the Court were willin to em

the course of statutory construction presently omtaean

government, the government has failed to present anything

but manifestly ambiguous support for its current views. Other

sources belie the government's claim that Congress used a

bizarre statutory construction to achieve what could have been

done quite simply, if that is what Congress meant to do

Congress knew how to create the type of successor liability at

issue here, and intentionally omitted it from the Coal Act

ho eee Is attempting to create support where there is

The Fourth Circuit correctly concluded that the

Respondents Sigmon, et al., are not liable under the Coal Act

This is what Congress both said and meant. The court of

appeals’ decision should be affirmed.

ARGUMENT

_The essence of the government's position is

parties who rely on the plain language of statute. as the

statement of the law, consistent with the normal rules of

Statutory interpretation, do so at their peril. Under the

government's approach, the government can, at any point,

reverse course and embrace a new, previously unannounced

seemed a settled interpretation of the statute.

Both the district cour and the cour of appeals i the case ow

before the Court refused to accept that this r\ -- ~

statutory obligations are to be imposed. Instead, A +

on the plain language of the Coal Act and applic a

written. This Court is urged to affirm that this ts

Congress intended.

’ ment in support

. The government’s new textual argu

' ofits "successor im interest to a signatory operator

theory should be rejected as a proper basis for

imposing liability under the Coal Act.

The lower courts have consistently rejected any

contention that a literal interpretation of the — ~

the liability of parties who have been identi e

government as “successors in interest to signatory operators.

The courts found that the relevant definitions of oe

operator” and “related person,” 26 U.S.C. § 9701(c\(1) ~

(2), simply do not support this claim. The — court i

R.G. Johnson’s case, for example, ———s —

in favor of literal statutory support as entirely oe d

based on a “tortured” reading of the “rel person

definition. 994 F.Supp. at 14. . ie

supposing that the government's current

ae textual pom ea has any viability, there - be a

dispute that the government's interpretation 1s, by far,

plain than the more straightforward reading to the —

adopted both by parties such as Jericol Mining and ~

Johnson and all of the courts below. oy apt of ge

exposition in the government's brief to rev

definition of “related person” encompasses a a successor :

in interest to a signatory operator. Brief for Petitioner

23-26. The magnitude of this exercise alone sponse ,

why affected parties might not have interpreted hr

the way the government now favors. Given the ~~

fact that the textual basis for the government's = -

convoluted, at best, it is entirely understandable — a

potential “successor in interest to a signatory operator w

conclude upon reading the statute that it was not covered by

the plain language of the Coal Act. Nor would such parties

have any cause to question their straightforward reading of

the statute. Even assuming that potentially affected Parties

were privy to the essentially non-public developments behind

the statute, and parties such as R.G. Johnson were not, they

still had no reason to suspect that their reading of the statute

was in error. Nothing in the Coal Commission’s proceedings

or the prior legislative proposals indicated that successorship

liability of the sort at issue here was a possibility. The

legislative proposals which preceded the Coal Act were based

on completely different concepts — either continued payments

to the then-existing UMWA Health and Retirement Funds or

a tax on coal production — and did not anticipate the assigned

operator approach to funding benefits that became the Coal

Act.

Once the assignment system was in place, there was still

no notice that this type of liability was in the offing. In the

course of making assignments, the government never

provided any notice (actual, constructive or otherwise) to

R.G. Johnson or any other purported “successor in interest to

a signatory operator” of potential liability. In fact, the

position the government was taking before the district court in

the Eastern Enterprises case as of April 1995 was to the

contrary. There, the government explained the statutory basis

for excluding successor liability as follows:

Inclusion of successors in those Provisions relating

to related persons (§ 9701(c2A)) and

reassignments upon purchase (§ 9706(b)(2)) clearly

establishes both a Congressional awareness of

successor Company issues in the coal industry and a

proficiency in expressly addressing such issues

Purposefully and intentionally when omitting

successor language from the requirements of the

Coal Act’s assignment hierarchy and definitional

section for signatory operators.

Appendix at 4a. Consistent with the government’s own

position, parties such as Jericol and R.G. Johnson properly

concluded that they are not covered by the language of the

Statute.

The government did not arrive at its “successor in

interest to a signatory operator” theory until some time after

endorsing a contrary view in Eastern Enterprises. The

government has never explained why it eventually changed

course and arrived at its current position. Imposing liability

on affected parties under these circumstances is unjustifiable.

Il. The omission of the type of successor liability at issue

in this case from the Coal Act was intentional.

While the equities favor rejection of the government’s

position, this is not the only flaw in the government’s

argument. The government’s legal analysis rests on the

claim that Congress either intended to include successor

liability of the type at issue here or that it was a mistaken

omission. However, the gloss which the government seeks to

place on the indicia of Congressional intent should be rejected

for the after-the-fact makeweight that it is. The exclusion of

the type of successor liability at issue in this case was entirely

intentional.

The government itself argued in the Eastern Enterprises

case that Congress was aware of successor liability and chose

to exclude it from both the definitional sections and the

assignment sections of the Coal Act. To the extent that the

government now seeks to look to legislative materials to

justify a change of position, there is no reason to limit the

search to the materials which the government cites.

Other sources belie the claim that Congress did not mean

to exclude liability for a successor in interest to a signatory

operator.

“ aon ee above, the critical events leading to passage

ppg hing in its final form occurred in July 1992. As of

om Roa ' , the members of Congress who were actively

eae in drafting the ‘Specific provisions which would

= rad were considering the Senate Leg. Counsel draft."

pol : precisely addressed Signatory _ operator

r ssorship by defining 4 signatory operator to include a

irect successor. If this provision had been carried over into

noW maintains. It

been there by way of the definition of signatory aan —

This provision, along wi iti

, & with the definition of “succ "

= a before the July 29, 1992 version of the roel

introduced. Given the timeframe and the similarities

If nothing else, the inclusi

° on and

am of the successor provisions i os ee

etc of successor liability and knew how to include it

oy ay OF a simple statutory construction if it so chose. It did

an tegen pe | cma cond underlying premise that

i ve intended to l

Operator successor liability is mistaken. ne

While there is no official

Is no record of the deli i

ap ae —— it Is entirely reasonable to pe ca

red result was the most obvious one

- §

signatory operator successor liability. At the same ag

the definitional successor provisions were deleted from the

Senate Leg. Counsel draft, a new provision addressing post-

enactment successorship was inserted. 26 U.S.C. §

9706(b)(2). Significantly, this provision left ultimate liability

with the signatory, not its successor. Such a concept would

have been at odds with a rule mandating successor liability

coextensive with signatory liability.

It is also significant that the structure of the “related

person” definition remained the same. If Congress had

believed that the “related person” definition already included

some aspect of signatory operator successorship liability, this

would have been changed as well. The absence of a

comparable change means that signatory operator successor

liability was not there in the first place.

The July 1992 development of the Coal Act establishes

that it was a carefully crafted compromise between competing

interests. This compromise should be respected

notwithstanding the government’s current position. The

Fourth Circuit correctly rejected the government’s claims in

favor of what the statute says and Congress intended.

CONCLUSION

For the reasons stated above, R.G. Johnson urges the

Court to affirm the decision below.

Respectfully submitted,

MARY LOU SMITH

(Counsel of Record)

Howe, Anderson & Steyer, P.C.

1747 Pennsylvania Avenue

Suite 1050

Washington D.C. 20006

(202) 296-5680

Attorneys for Amicus Curiae

R.G. Johnson Company, Inc.

Dated: July 24, 2001

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

EASTERN ENTERPRISES.

Plaintiff, Case No. 93-12372WF

SHIRLEY S. CHATER,

Commissioner of Social Security, et. al.,

Defendants.’

FEDERAL DEFENDANT’S OPPOSITION TO

EASTERN ENTERPRISES’ MOTION FOR SUMMARY

JUDGMENT ON STATUTORY INTERPRETATION

CLAIMS

PRELIMINARY STATEMENT

Eastern Enterprises (“Eastern”) asserts in its motion for

summary judgment on statutory interpretation claims that

federal defendant Secretary of Health and Human Services

(“Secretary”) improperly assigned beneficiaries to Eastern

Pursuant to the Social Security Independence and Program

Improvements Act of 1994, Pub. L. No. 103-296, the function of the

Secretary of Health and Human Services in Social Security and related

cases was transferred to the Commissioner of Social Security effective

March 31, 1995. In accordance with Fed. R. Civ. P. 25(d) and § 106(d) of

Pub. L. No. 103-296, Shirley S. Chater, Commissioner of Social Security

should be substituted for Donna E. Shalala, Secretary of Health and

Human Services. Since plaintiff Eastern Enterprises’ summary judgment

memorandum (as well the parties’ other submissions to date in this case)

refer to the Secretary, rather than the Commissioner, as the party-federal

defendant, the text of this memorandum for ease of reference will continue

to refer to the federal defendant as “the Secretary.”

under the Coal Industry Retiree Health Benefit Act of 1992

(codified at 26 U.S.C. §§ 9701-9722) (“Coal Act”). In

summary, Eastern contends that the Social Security

Administration (“SSA”) improperly assigned beneficiaries to

Eastern as a result of the agency’s interpretation of the Coal

Act which provides for beneficiary assignments to successor

companies only when no other otherwise assignable company

remains in business. Eastern asserts that

x* ** *k *

predecessor signatory operator. /d.

Eastern’s proffered view of successor assignments not

only ignores the carefully-wrought legislative balance

underlying the Coal Act’s assignment provision, see

discussion infra pp. 28-34, but also conflicts with the well-

established principle of statutory construction holding that the

plain language of a statute, absent extraordinary

circumstances, is conclusive. See, e.g. Negonsott v. Samuels,

-- U.S.--, 113 S. Ct. 1119, 1122-23 (1993) (“ * Our tasks is to

give effect to the will of Congress, and where its will has been

expressed in reasonably plain terms, the language must

ordinarily be regarded as conclusive.”) (quoting Griffin v.

Oceanic Contractors, Inc., 458 U.S. 564, 570 (1982); In re

Plaza de Diego Shopping Center, Inc., 911 F.2d 820, 827 (ist

Cir. 1990) (* * The plain purpose of legislation . . . is to be

determined in the first instance with reference to the plain

language of the statute itself.’ ””) (quoting Board of Governors

of the Fed. Reserve Sys. v. Dimension Financial Corp., 474

U.S. 361, 373 (1986)); see also Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, 467 U.S. 837, 842-43

(1984) (“If the intent of Congress is clear, that is the end of

the matter: for the court, as well as the agency, must give

effect to the unambiguously expressed intent of Congress.”)

The Coal Act’s assignment hierarchy plainly does not

require assignments to successor companies. Section 9706(a)

of the Coal Act provides for Combined Fund beneficiary

assignments to “signatory operators” (or, if that operator is no

longer in business, to any related person which remains in

business) based on the miner’s work history and the

collective-bargaining experience of the signatory-operator.

A signatory operator, in turn, is defined as “a person which

IS OF Was a Signatory to a coal wage agreement.” Coal Act

§ 9701(c)(1). Neither the Coal Act’s assignment hierarchy,

_Nor its definition of “signatory operators,” thus make any

reference, express or otherwise, to successor companies.

That Congress omitted successor companies from the

Coal’s Act’s assignment provision, moreover, cannot be

attributed (as Eastern suggests) to mere legislative

inadvertence or neglect. See Pl. SJ Mem. at 2, 19. Given that

the Coal Act refers to “successors” in several other Coal Act

sections, Congress’ omission of successors from both the

requirements of the assignment hierarchy and the definition of

“signatory operators” was clearly intentional. See, e.g., Estate

of Bell v. Commissioner ef Internal Revenue Service, 928 F.2d

901, 904 (9th Cir. 1991) (“Congress is presumed to act

intentionally and purposely when it includes language in one

section but omits it from another.”); United States v. Azeem,

946 F.2d 13, 17 (2nd Cir. 1991); (“Not every congressional

silence is pregnant [iJn general, congressional

consideration of an issue in one context, but no in another, in

the same or similar statutes implies that Congress intends to

include that issue only where it has so indicated.”); United

States v. Espinoza-Leon, 873 F.2d 743, 746 (4th Cir. 1989)

(“Where Congress includes particular language in one section

of a Statute but omits it in another section of the same Act, it

is generally presumed Congress acted intentionally and

purposely in excluding the particular language.”), cert.

denied, 492 U.S. 924 (1989).

The Coal Act refers to successor companies in two

separate provisions. First, reference is made to “successors in

interest” in the definitional section for related persons. Coal

Act § 9701 (c) (2A). Section 9701(c) (2A) provides that a

company is deemed to be “related” to a signatory operator, for

purposes of the Coal Act, when that company is either (i) a

f the same controlled group of corporations as the

esa hh te or (ii) in a trade or business which Is _-

the common control of the signatory operator, (111) .

partnership or joint venture with the signatory operator. Doce

particular relevance here, the concluding clause of this —

also provides that “[a] related person shall also inclu 4

successor in interest of any person described in clause (1), (11),

or (iii).” Id."

Subsection 9706(b)(2) contains the Coal Act’s second

reference to successor companies. Captioned a

upon purchase,” this subsection provides that, shou Se

company become a successor of an assigned operator a od

the enactment date of the Coal Act, the assigned —

may transfer any assigned Combined Fund beneficiaries to -

successor. Jd. The assigned operator transferring .

assignments, however, remains the guarantor of benefits - ™

originally assigned beneficiaries. /d. (Because ~g oe oo

coal operations to EACC long before the socitcoraeh

enactment in 1992, section 9706(b)(2) has no application

the Eastern-EACC sale).

ss’ omission of successor language from the

onmmes of the assignment hierarchy contained ae

9706(a) thus stands in stark contrast to the two Pv r

subsections of the Coal Act which expressly 7 SS

successorship issues. Inclusion of successors vf te

provisions relating to related persons (§ 9701(c) (2)( ~ a

reassignments upon purchase (§ 9706(b)(2)) clearly esta lishes

both a congressional awareness of successor company issues

in the coal industry and a proficiency in expressly addressing

such issues where deemed appropriate or gn

Congress, therefore, must be presumed to have =

purposefully and intentionally when omitting succes :

language from the requirements of the Coal Act’s assignme

"As a general matter, the Coal Act directs the taking of a corporate

snapshot as of July 20, 1992 to determine whether or not a company 1s

related to a signatory operator. /d. at 9701(c\(2)(B).

hierarchy and definitional section for signatory operators. See

e.g. United States v. Newman, 982 F.2d 665. 673 (Ist Cir.

1992), cert. denied. -- U.S. --, 114 S.Ct. 59 (1993).

Application of the plain language of the Coal Act to

Eastern, in the final analysis, is also consistent with the

overall framework of the Coal Act’s assignment scheme. Far

from leaving assigned operators without legal recourse should

they have private contractual agreements with successors or

other parties regarding responsibility for the payment of

retiree health benefits, the Coal Act expressly provides for

private indemnification actions irrespective of any beneficiary

assignments made under the Act. Section 9706(f)(6) provides

in full:

Nothing in this section shall preclude the right of

any person to bring a separate civil action against

another person for responsibility for assigned

premiums, notwithstanding any prior decision by

the Secretary.

While Eastern conveniently ignores this provision in its

summary judgment memorandum, Eastern has already availed

itself of this private right of action by filing a third-party

complaint to this action, naming EACC and Peabody Holding

Co., Inc. as third party defendants. See Eastern Enterprises v.

Peabody Holding Co., Inc., C.A. No. 93-12372-WF (filed Jan.

5, 1994). Thus, if Eastern’s third-party...

* kk *k *

(2) SSA Successor Policy Which Makes Assignments

to Successor Companies Only When the Otherwise

Assignable Signatory Operator (or Related Person)

Is Out of Business Presents a Reasonable

Interpretation of the Coal Act

While Eastern chides SSA for erecting an arbitrary

“barrier” to successor assignments by implementing a policy

which requires that all otherwise assignable signatory

operators (or related persons) be out of business before

making assignments to successor companies, see Pl. SJ Mem.

at 20-21, SSA’s successor policy is both reasonable and

consistent with the policies underlying the Coal Act.

As noted above, see discussion supra pp. 17-20, the Coal

Act makes no express provision for assignments to successor

companies. Thus, in conformance with the plain terms of the

assignment hierarchy in § 9706(a) of the Coal Act. SSA first

looks to in-business signatory operators (or their related

persons) for Combined Fund beneficiary assignments. When

no otherwise assignable signatories or related persons remain

in business, the beneficiary, as a general matter, becomes an

“orphan” beneficiary for whom all assigned operators bear a

pro rata premium responsibility. Coal Act §§ 9704(d),

9706(a)(3). SSA’s successor policy is intended to reduce the

number of unassigned or “orphan” beneficiaries and thereby

broaden the pool of assigned operators. In administering the

Coal Act, SSA realized that some potentially inequitable

results could arise in situations where, but for an assignment

to a successor company, the beneficiary would be placed in

the unassigned beneficiary pool. O’Connell Dec. ¢ 18." Such

potential inequities arise primarily because, while in-business

signatory operators (such as Eastern) assigned responsibility

for former employees may seek indemnification from a

successor company by private action pursuant to § 9706(5),

no such action could be maintained by (or on behalf of)

unassigned beneficiaries. SSA therefore developed a

'° Such a situation is illustrated by the following example. Assume that

both Company A and Company B are pre-1978 signatory operators, but

neither of whom remained in business as of July 1992. Also assume that

Company A has an active related company engaged in the candy business

and Company B has an active successor company engaged in the coal

business. Absent SSA’s current successor policy, Company A's

beneficiaries could be assigned to its related candy company, but

Company B”s beneficiaries would have to be placed in the pool of

unassigned beneficiaries. See O’Connell { 18.

successor policy which looks to successor companies when all

other otherwise assignable signatory operators or related

persons are out of business on the grounds that, as between

making an assignment to a successor company or placing a

beneficiary in the unassigned beneficiary pool, Congress

would have preferred successor assignments. See O’Connell

Dec. 94 19.

SSA’s successor policy, far from being arbitrary, not

only remains true to the congressional policies underlying the

Coal Act, but also serves the laudable purpose of reducing the

overall number of orphan beneficiaries. SSA’s succesor

policy maintains a consistency with the overall structure of

the Coal Act by treating successors similarly to related

persons (a concept to which they are roughly equivalent) for

purposes of making beneficiary assignments; neither related

persons nor successors receive assignments; unless no former

signatory employers remain in business. See Coal Act

§ 9706(a) O’Connell Dec. ¥ 16-17, 20, 22, see also 138

Cong. Rec. $17604 (daily ed. Oct 8, 1992) (describing Coal

Act as “mak[ing] each . . . related person fully responsible for

the signatroy operator's obligation should the signatory no

longer be in business or otherwise fail to fulfill its obligations

under the Act”).

This policy, moreover, respects the congressional

preference expressed in § 9706(a) for assignments to signatories

and related persons by only looking to successor companies

when no otherwise assignable entities remain in business. See

138 Cong. Rec. $17604 (noting that Act “intended to provide

the greatest number of beneficiaries with health care benefits

paid for by a company which remains in business and was the

retiree’s signatory employer, or is or was a person related to

such signatory”); see also discussion infra pp. 33-34.

Finally, SSA’s successors policy finds support in

Congress’ “overriding” concern for reducing the number of

beneficiaries assigned to the pool of “orphan” beneficiaries.

See 138 Cong. Rec. S17604 (daily ed. Oct. 8, 1992)

(“Allocation of beneficiaries to an entity or business which

continues business is the basic statutory intent. mo ee

Conference Agreement’s overriding purpose 1s to ay

designate a specific obligor for as many yee ba

[UMWA] Plans as possible.”), see also id. at | fen

recognition to the fact that unassigned beneficiaries ye yee

employed by the assigned operators al the time —

retirement, provisions are made to subsidize the assig

kk * * *

DISTRICT OF COLUMBIA

RECEIVED

DEC 11 1997

MORGAN, LEWIS & BOCKUS LLP

AFFIDAVIT

Before me, the undersigned authority, appeared

HAROLD P. COXSON, JR., who, being duly swom

according to law, deposed and stated as follows:

1. I am an attorney in Washington, D.C., who since

1974 has represented employers in connection with federal

labor and employment law matters, including matters relating

to the coal industry, the United Mine Workers of America

(“UMWA”), and the UMWA Health and Retirement Funds.

2. In July 1992, I was acting as chairman of the

Collective Bargaining Alliance (“CBA”), an informal group

of businesses that was monitoring legislative action

concerning the UMWA Funds.

3. On behalf of the CBA, I obtained a document

entitled “Subtitle C--Health Care of Coal Miners” from

sources on Capitol Hill, attached hereto as Exhibit 1. I have

confirmed that this document was prepared by the Senate

Legislative Counsel, abbreviated “S.L.C.” on the face of the

document. It was circulated to interested members of CBA on

or around July 27, 1992.

I declare under penalty of perjury that the foregoing is

true and correct to the best of my knowledge.

December 8, 1997 /s/Harold P. Coxson, Jr.

Date Harold P. Coxson, Jr.

Subscribed and sworn to before me this 8" day of December,

1997.

/s/ Corina Fox McBride, Notary Public District of Columbia

10a

Subtitle C—Health Care of Coal Miners

SEC. 1941. SHORT TITLE.

This subtitle may be cited as the “Coal Industry Retiree

Health Benefit Act of 1992”

SEC. 1942. FINDINGS AND DECLARATION OF

POLICY. 7

(a) FINDINGS.—The Congress finds that—

(1) the production, transportation, and use of coal

substantially affects interstate and foreign commerce and

the national public interest,

(2) an important element in the privately maintained

benefit plans now experiencing financial difficulty has

been the provision of health benefits for retirees of

companies no longer contributing to the coal retiree

health funds.;

(3) withdrawals of contributing employers from

privately maintained benefit plans maintained under

collective bargaining agreements and covering retirees in

the coal industry have resulted in substantially increasing

funding burdens for employers that continue to

contribute to such plans, adversely affecting the stability

of labor-management relations in the coal industry, and

(4) in order to secure the stability of interstate

commerce, it is necessary to modify the current private

health care benefit plan structure for retirees in the coal

industry to identify persons most responsible for plan

liabilities in order to stabilize plan funding and allow for

the provision of health care benefits to such retirees.

(b) STATEMENT OF PoLicy.—It is the policy of this

subtitle—

(1)to remedy problems with the provision and

funding of health care benefits with respect to the

beneficiaries of multiem

ployer benefit plans that i

health care benefits to retirees in the = —

>t , ;

an. ater allow for sufficient operating assets for such

(3) to provide for the

financed self-sufficient

health care benefits to the beneficiaries of such plans.

SEC. 1943. COAL IND

caeemnemn USTRY HEALTH BENEFITS

(a) In General.—The internal Reven

ue Code of 1986 i

amended by adding at the end the following new subtitle: .

“Subtitle J—Coa! Industry Health Benefits

“CHAPTER 99. COAL INDUSTRY HEALTH BENEFITS.

“CHAPTER 99—COAL INDUSTRY HEALTH

BENEFITS.

“SUBTITLE A—Definitions of genera icabili

“SUBTITLE B—Combined benefit mene —

“SUBTITLE C—Health benefits of certain other

miners.

“SUBTITLE D—Other provisions.

“Subchapter A—Definitions of General Applicability.

“Sec. 9701. Definitions of general applicability.

“SEC. 9701. DEFINITIONS OF GENERAL

APPLICABILITY.

(a) PLANS AND FUNDS.—For purposes of this chapter—

“(1) UMWA BENEFIT PLAN.—

“(A) IN GENERAL.—The term ‘U

leni oa MWA Benefit

continuation of a privately

program for the delivery of

12a

“(i) which is described in_ section

404(c), or a continuation thereof; and

“(ii) which provides health benefits to

retirees and beneficiaries of the industry which

maintained the 1950 UMWA Pension Plan.

“(B) 1950 UMWA BENEFIT PLAN.—The term

‘1950 UMWA Benefit Plan’ means a UMWA

Benefit Plan, participation in which is substantially

limited to individuals who retired before 1976.

‘1974 UMWA Benefit Plan’ means a UMWA

Benefit Plan, participation in which is substantially

limited to individuals who retired on or after

January 1, 1976.

“(2) 1950 UMWA PENSION PLAN.—The term ‘1950

UMWA Pension Plan’ means a pension plan described in

section 404(c) (or a continuation thereof), participation

in which is substantially limited to individuals who

retired before 1976.

“(3 1974 UMWA PENSION PLAN.—The term ‘1974’

UMWA Pension Plan’ means a pension plan described in

section 404(c) (or a continuation thereof), participation

in which is substantially limited to individuals who

retired in 1976 and thereafter.

(4) 1992 UMWA PENSION PLAN. —The term ‘1992

UMWA Benefit Plan’ means the plan established under

section 9713A.

(5) COMBINED FUND.—The term ‘Combined Fund’

means the United Mine Workers of America Combined

Benefit Fund established under section 9702.

“(b) AGREEMENTS.—For purposes of this section—

“(1) COAL WAGE AGREEMENT.—The term ‘coal

wage agreement’ means—

l3a

“(A) the National Bituminous Coal Wage

Agreement, or

“(B) any other agreement entered into between

4 — in the coal industry and the United

ine Workers of America that required o

one or both of the following: a —

_ “(i the provision of health benefits to

retirees of such employer, eligibility for which

is based on years of service credited under a

plan established by the settlors and described

im section 404(c) or a continuation of such

plan; or

“(ii) contributions to the 1950 UMWA

Benefit Plan or the 1974 UMWA Benefit Plan,

or any predecessor thereof.

“(2) SETTLORS.—The term ‘settlors’

means _ the

United Mine Workers of America and the Bituminous

Coal Operators’ Association, Inc (referred

, . t

chapter as the ‘BCOA’), nas

“(3) NATIONAL ~— BITUMINOUS — COAL WAGE

AGREEMENT.—The term ‘National Bituminous Coal

Wage Agreement’ means a collective bargaining

agreement negotiated by the BCOA and i i

Workers of America. a

“(c) TERMS RELATING TO OPERATORS.—For purposes of

this section—

“(1) SIGNATORY OPERATOR.—The t ‘si

_— erm ‘si

operator’ means— wit

“(A) a person which is or was a Signat

coal wage agreement, or —*

“(B)in the event a person described in

subparagraph (A) is no longer in business, any

successor to such person.

l4a

(2) 1988 AGREEMENT OPERATOR.—The term *1988

agreement operator’ means—

“(A)a_ signatory operator which was a

signatory to the 1988 National Bituminous Coal

Wage Agreement,

“(B) an employer in the coal industry which

was a signatory to an agreement containing pension

and health care contribution and benefit provisions

which are the same as those contained in the 1988

National Bituminous Coal Wage Agreement, or

“(C) an employer which, after 1987 and before

the enactment date, made contributions to the 1950

UMWA Benefit Plan or the 1974 UMWA Benefit

Plan [in connection with employment in the coal

industry during the period covered by the 1988

National Bituminous Coal Wage Agreement]. \

“(3) LAST SIGNATORY OPERATOR.—The term ‘last

signatory operator’ means, with respect to a coal industry

retiree, a signatory operator which was the most recent

coal industry employer of such retiree.

“(4) ASSIGNED OPERATOR.—The term ‘assigned

operator’ means, with respect to an eligible beneficiary

defined in section 9703(f), the signatory operator to

which liability under subchapter B with respect to the

beneficiary is assigned under section 9706.

(5) RELATED PERSONS.—

“(A) IN GENERAL.—A __ person shall be

considered to be a related person to a signatory

operator if that person is—

“(i) a member of the controlled group

of corporations (within the meaning of section

52(a)) which includes such signatory operator;

“(ii) a trade or business which is under

the same common control (as determined |

lSa

under section 52(b)) as such signatory

operator; or

[“(iii) any other person who _ is

identified by the Secretary of Health and

Human Services as having an Ownership or

profit-sharing interest with a Signatory operator

in a business within the coal industry, but only

if such business employed _ eligible

beneficiaries. ]

A related person shall also include a successor of

any person described in clause (i), (ii), or (iii).

“(B) TIME FOR DETERMINATION.—The

relationships described in clauses (i), (ii), and

(ili) of subparagraph (A) shall be determined as of

July 20, 1992, except that if, on July 20, 1992 a

Signatory operator is no longer in business and has

no successor, the relationships shall be determined

as of the time immediately before such operator (or,

if later, such successor) ceased to be in business.

(6) OPERATORS OF DEPENDENT BENEFICIARIES.—

For purposes of this chapter, the Signatory operator, last

Signatory operator, or assigned operator of any eligible

beneficiary under this chapter who is a coal industry

retiree shall be considered to be the Signatory operator,

last signatory operator, or assigned operator with respect

to any other individual who is an eligible beneficiary

under this chapter by reason of a relationship to the

retiree.

“(7) BUSINESS.—For purposes of this chapter, a

person shall be considered to be in business if such

person or any related person conducts or derives revenue

from any business activity, whether or not in the coal

industry.

16a

“(8) SUCCESSOR.—For purposes of this subsection,

the term ‘successor’ has the meaning given such term

when used in the National Labor Relations Act.

“(d) ENACTMENT DATE.—For purposes of this chapter,

the term ‘enactment date’ means the date of the enactment of

this chapter.

“Subchapter B—Combined Benefit Fund

“Part I—Establishment and Benefits

“Part [I—Financing

“Part I1]—Enforcement

“Part [V—Other Provisions

“PART I—ESTABLISHMENT AND BENEFITS

“Sec. 9702. Establishment of the United Mine Workers

of America Combined Benefit Fund.

“Sec. 9703. Plan benefits.

“Sec, 9702. ESTABLISHMENT OF THE UNITED

MINE WORKERS OF AMERICA

COMBINED BENEFIT FUND.

“(a) ESTABLISHMENT. —

“(1) IN GENERAL.—As soon as practicable (but not

later than 60 days after the enactment date), the settlors

of the 1950 UMWA Benefit Plan and the 1974 UMWA

Benefit Plan shall create a plan to be known as the

United Mine Workers of America Combined Benefit

Fund. The trustees of the 1950 UMWA Benefit Plan and

the 1974 UMWA Benefit Plan shall be the trustees of the

Combined Fund until the appointment of trustees under

subsection (b).

[“(1) IN GENERAL. —As soon as practicable (but not

later than 60 days) after the enactment date, the persons

described in subsection (b) shall designate the

- jndividuals to serve as trustees. Such trustees shall create

17a

a plan to be known as the United Mine Workers of

America Combined Benefit Fund. ]

(2) MERGER OF RETIREE BENEFIT PLANS.—As of

February 1, 1993, the settlors of the 1950 UMWA

Benefit Plan and the 1974 UMWA Benefit Plan shall

py! pes plans to be merged into the Combined Fund

assets and liabilities of such plans sh

part of the Combined Fund. pit

“(3) TREATMENT FOR ERISA.—

shall be .—The Combined Fund

“(A) an employee welfare benefit plan within

ad — of section 3(1) of the Employee

etirement Income Security Act of 197

oe~sopr ty 4 (29 U.S.C.

“(B) a multiemployer plan within the meani

! n

of section 3(37) of such Act (29 U.S.C. 1002(37)). ’

“(4) TAX TREATMENT.—The Combined F

, und and

any related trust shall be exempt from tax under this title.

“(b) BOARD OF TRUSTEES.—

‘() IN GENERAL.—As soon as practicable after the

assignment of eligible beneficiaries under section

9706, and in no event later than November 1, 1993

[For purposes of subsection (a),] a new private plan

board of trustees for the combined Fund shall be

appointed as follows:

“(A) one individual who represents em

Andivi ployers

in the coal mining industry shall be desi

rte meg try designated by

“(B) one individual shall be desi

gnated by the

three employers, other than 1988 roschn Se

operators, who have been assigned the greatest

number of eligible beneficiaries under section 9706;

“(C) two individual designated by the

Mine Workers of America; my ; —

18a

“(D) three persons selected by the persons

appointed under subparagraphs (A), (B), and (C).

“(2) SUCCESSOR TRUSTEES.—Any successor trustee

shall be appointed in the same manner as ‘the trustee

being succeeded. [Any person designating a trustee shall

have the right to remove such trustee.]

“(3) SPECIAL RULES.—

“(A) BCOA.—If the BCOA ceases to exist,

any trustee or successor under paragraph (1)(A)

shall be appointed by the 3 employers who were

members of the BCOA on the enactment date and

who have been assigned the greatest number of

eligible beneficiaries under section 9706.

[“(B) FORMER SIGNATORIES.—The — initial

trustee under paragraph (1)(B) shall be appointed by

the 3 employers, other than 1988 agreement

operators, which the records of the 1950 UMWA.

Benefit Plan and 1974 UMWA Benefit Plan

indicate have the greatest number of eligible

beneficiaries as of the enactment date, and such

trustee and any successor shall serve until

November 1, 1993.]

“(c) PLAN YEAR.—The first plan year of the Combined

September 30,

Fund shall begin February 1, 1993 and end

1993. Each succeeding plan year shall begin on October | of

each calendar year.

“Sec. 9703. PLAN BENEFITS.

“(a) IN GENERAL.—Each eligible beneficiary of the

Combined Fund shall receive—

“(1) health benefits described in subsection (b),

and

“(2) in the case of an eligible beneficiary described

in subsection (f)(1), death benefits coverage described in

subsection (Cc).

19a

“(b) HEALTH BENEFITS.—

“(1) IN GENERAL.—The trustees of the Combined

Fund shall provide health care benefits to each eligible

beneficiary by enrolling the beneficiary in a health care

services plan which undertakes to provide such benefits

on a prepaid risk basis. Except as provided in paragraph

(2)(B), coverage under the managed care system shall be

substantially the same as (and subject to the same

limitations of) coverage provided under the 1950

UMWA Benefit Plan and the 1974 UMWA Benefit Plan

as of January 1, 1992.

“(2) PLAN PAYMENT RATES,—

“(A) IN| GENERAL.—The trustees of the

Combined Fund shall negotiate payment rates with

the health care services plans described in

paragraph (1) for each plan year which are in

amounts which—

“(i) Vary as necessary to ensure that

beneficiaries in different geographic areas have

access to the same health benefits: and

“(ii) result in aggregate payments for

such plan year from the Combined Fund which

do not exceed the total premium payments

required to be paid to the Combined Fund

under section 9704(a) for the plan year,

adjusted as provided in subparagraphs (B) and

(C).

“(B) REDUCTIONS.—The amount determined

under subparagraph (A)(ii) for any plan year shall

be reduced—

“(i) by the aggregate death benefit

premiums determined under section 9704(c)

for the plan year, and

20a

“(ii) by the amount reserved for plan

administration under subsection (d).

“(C) INCREASES.—The amount determined

sunder subparagraph (A)(i1) shall be increased—

“(i) by any reduction in the total

premium payments required to be paid under

section 9704(a) by reason of transfers

described in section 9705,

“(ii) by any carryover to the plan year

from any preceding plan year which—

“(1) arises because payments

form the Combined Fund for such

preceding plan year were less than the

limit under this paragraph, and

“(II) the trustees elect to use to

pay benefits for the current plan year,

and

“(jii) any interest earned by the

Combined Fund which the trustees elect to use

to pay benefits for the current plan year.

[“(3) COORDINATION WITH MEDICARE.—The level

of coverage provided under the 1950 UMWA Benefit

Plan and the 1974 UMWA Benefit Plan as of January |,

1992, shall be determined by taking into account any

benefits or reimbursements provided under title XVIII of

the Social Security Act.

“(4) QUALIFIED PROVIDERS.—The trustees of the

Combined Fund shall not enter into an agreement under

paragraph (1) with any provider of services which is of a

type which is required to be certified by the Secretary of

Health and Human Services when providing services

under title XVIII of the Social Security Act unless the

provider is so certified.]

2la

“(5) EFFECTIVE DATE.—Benefits shall be

rE. rovided

under paragraph (1) on and after February |, 1993.

“(c) DEATH BENEFITS COVERAGE.—

“(1) IN GENERAL.—The trustees of the Combi

Fund shall provide death benefits coverage to —

eligible beneficiary described in subsection (f)(1) which

is identical to the benefits provided under the 1950

UMWA Pension Plan or 1974 UMWA Pension Plan

whichever is applicable, fon July 20, 1992.] Such

coverage shall

1993. 8 be provided on and after February |,

“(2) TERMINATION OF COVERAGE.—The

UMWA Pension Plan and the 1974 UMWA mo

Plan shall each be amended to provide that death benefits

coverage shall not be provided to eligible beneficiaries

on and after February 1, 1993. This paragraph shall not

prohibit such plans from subsequent! idi

benefits not described in paragraph a). —

“(d) RESERVES FOR ADMINISTRATION.—The

— trustees of

the Combined Fund may reserve for each plan year, for use in

payment of the administrative costs of the Combined Fund, an

amount not to exceed 5 percent of the premiums to be paid to

the Combined Fund ,

year. und under section 9704(a) during the plan

“(e) LIMITATION ON ENROLLMENT.—{Exce

. . pt as provided

in section 971 I(d) and 9712(c),] the Combined Fund res not

— ee who is not receiving benefits under the

nefit Plan or the 1974

as of July 20, 1992. —

“(f) ELIGIBLE BENEFICIARY.—For

. purposes of this

subchapter, the term ‘eligibl lary’

ws igible beneficiary’ means an

“C) is a coal industry retiree who, on July 20, 1992,

was eligible to receive, and receiving, benefits from the

22a

1950 UMWA Benefit Plan or the 1974 UMWA Benefit

Plan. or

“(2) on such date was eligible to receive, and

receiving, benefits in either such plan by reason of a

relationship to such retiree.

PART II—FINANCING

“Sec. 9704. Liability of assigned operators.

“Sec. 9705. Transfers.

“Sec. 9706. Assignment of eligible beneficiaries.

“SEC. 9704. LIABILITY OF ASSIGNED OPERAORS.

“(a) ANNUAL PREMIUMS.—Each assigned operator shall

pay to the Combined Fund for each plan year beginning on or

after February 1, 1993, an annual premium equal to the sum

of the following three premiums—

“(1) the health benefit premium determined under

subsection (b) for such plan year, plus

“(2) the death benefit premium determined under

subsection (c) for such plan year, plus

“(3) the unassigned ~ beneficiaries premium

determined under subsection (d) for such plan year.

Any related person with respect to an assigned operator =

be jointly and severally liable for any premium required to

paid by such operator. |

“(b) HEALTH BENEFIT PREMIUM.—For purposes of this

chapter-—

“(1) IN GENERAL.—The health benefit premium for

any plan year for any assigned operator shall be an

amount equal to the product of the per beneficiary

premium for the plan year multiplied by the number of

eligible beneficiaries assigned to such operator under

section 9706.

23a

(2) PER BENEFICIARY PREMIUM.—The Secretary of

Health and Human Services shall calculate a per

beneficiary premium for each plan year beginning on or

after February 1, 1993, which is equal to the sum of —

“(A) the amount determined by dividing—

“(i) the aggregate amount of payments

from the 1950 UMWA Benefit Plan and the

1974 UMWA Benefit Plan for health benefits

(less reimbursements) for the plan year

beginning July 1, 1991, for all individuals

covered under such plans for such plan year,

“(ii) the number of such individuals,

plus |

“(B) the amount determined under subparagraph

(A) multiplied by the percentage (if any) by which the

medical component of the Consumer Price Index for

the calendar year in which the plan year begins

exceeds such component for 1992.

“(c) DEATH BENEFIT PREMIUM.—The death benefit

premium for any plan year for any assigned operator shall be

equal to the applicable percentage of the amount, actuarially

determined, which the Combined Fund will be required to pay

during the plan year for death benefits coverage described in

section 9703(c).

“(d) UNASSIGNED _— BENEFICIARIES =PREMIUM.—The

unassigned beneficiaries premium for any plan year for any

assigned operator shall be equal to the applicable percentage

of the product of the per beneficiary premium for the plan

year multiplied by the number of eligible beneficiaries who

are not assigned under section 9706 to any person for such

plan year.

ra 2Sa

“(f) APPLICABLE PERCENTAGE.—For purposes of the

“(e) PREMIUM ACCOUNTS; ADJUSTMENTS.— | section—

“(1) ACCOUNTS.—The trustees of the Combined “(1)IN — GENERAL.—The term _ ‘applicable

Fund shall establish and maintain 3 separate accounts for percentage’ means, with respect to any assigned

: ums described in subsections (b), (c), ; y a

each of the premiums ceedined with the operator, the percentage determined by dividing the

and (d). Such accounts shall be cred nditures number of eligible beneficiaries assigned under section

premiums received and debited with expe 9706 to such operator by the total number of eligible

allocable to such premiums. beneficiaries assigned under section 9706 to all such

« NS.— operators (determined on the basis of assignments as of

saceemngninies October 1, 1993).

“(A) ADMINISTRATIVE EXPENSES. — Administrative

costs for any plan year shall be allocated to premium

accounts under paragraph (1) on the basis of expenditures

(other than administrative costs) from such accounts

during the preceding plan year.

“(B) INTEREST.—Interest shall be allocated to

the account established for health benefit premiums.

“(3) SHORTFALLS AND SURPLUSES.—

“(A)In general.—Except as a, 7

subparagraph (B), if, for any plan year, there is

shortfall or surplus in any premium account, -

premium for the following plan year for eac

assigned operator shall be proportionately reduced

or increased, whichever is applicable, by the

amount of such shortfall or surplus.

“(B) EXCEPTION.—Subparagraph (A) shall not

apply to any surplus in the health benefit premium

account which is attributable to—

“(j) amounts described in —

703(b\(2C\ii) (relating to carryovers Oo

i oe not used to provide benefits) for the

plan year or any preceding plan year, or

-“(ii) interest credited under paragraph

(2)(B) for the plan year or any preceding plan

year.

“(2) ANNUAL ADJUSTMENTS.—In the case of any

plan year beginning on or after October 1, 1994. the

applicable percentage for any assigned operator shall be

redetermined under paragraph (1) by making the

following changes to the assignments as of October l,

1993:

“(A) Such assignments shall be modified to

reflect any changes during the period beginning

October 1, 1993, and ending on the last day of the

preceding plan year pursuant to the appeals process

under section 9706(f).

“(B) The total number of assigned eligible

beneficiaries shall be reduced by the eligible

beneficiaries of assigned operators who ceased

business (within the meaning of section 9701(c\(6))

during the period described in subparagraph (A).

“(g) PAYMENT OF PREMIUMS.—The annual premium

under subsection (a) for any plan year shall be payable in 12

equal monthly installments, due on the twenty-fifth day of

each calendar month in the plan year. In the case of the plan

year beginning February 1, 1993, except as provided in

subsection (i), the annual premium under subsection (a) shall

be added to such premium for the plan year beginning

October 1, 1993.

26a

“(h) INFORMATION.—The trustees of the Combined Fund

shall. not later than 60 days after the enactment date, furnish

to the Secretary of Health and Human Services information as

to the benefits and covered beneficiaries under the fund, and

such other information as the Secretary may require to

compute any premium under this section.

“(i) TRANSITION RULES.—

“(1) 1988 AGREEMENT OPERATORS.—

“(A) IST YEAR COSTS.—During the plan year

of the Combined Fund beginning February |, 1993,

the 1988 agreements operators shall make

contributions to the Combined Fund in amounts

necessary to pay benefits and administrative costs

of the Combined Fund incurred during such year.

“(B) DEFICITS FROM MERGED PLANS.—During

the period beginning February 1, 1993, and ending

September 30, 1994, the 1988 agreement operators

shall make contributions to the Combined Fund as

are necessary to pay off the expenses accrued (and

remaining unpaid) by the 1950 UMWA Benefit

Plan and the 1974 UMWA Benefit Plan as of

February 1, 1993, reduced by the assets of such

plans as of such date.

“(C) FAILURE.—If any 1988 agreement

operator fails to meet any obligation under this

paragraph, any contributions of such operator to the

Combined Fund or any other plan described in

section 404(c) shall not be deductible under this title

until such time as the failure is corrected.

“(D) PREMIUM REDUCTIONS. —

“(i) IST YEAR PAYMENTS.—In the case

of a 1988 agreement operator making

contributions under subparagraph (A), the

premium of such operator under subsection (a)

shall be reduced by the amount of premiums

27a

under Subsection (a) which are paid by

assigned operators other than 1988 agreement

operators for the plan year beginning February

1, 1993, and which are allocated to such

operator under subparagraph (EB).

“(ii) DEFICIT PAYMENTS.—In the case a

1988 agreement operator making contributions

under subparagraph (B), the premium of such

operator under subsection (a) shall be reduced

by the amounts which are paid to the

Combined Fund by reason of litigation based

on the ‘evergreen clause’ found in the

language of the 1950 UMWA Benefit Plan and

the 1974 UMWA Benefit Plan and which are

— to such operator under subparagraph

(iii) PLAN YEARS.—Premiums under

subsection (a) shall be reduced for the first

plan year for which amounts described in

Clause (i) or (ii) are available and for any

succeeding plan year until such amou

exhausted. —

“(E) ALLOCATIONS OF CONTRIBUTIONS AND

REFUNDS.—Contributions under subparagraphs (A)

and (B), and premium reductions under

subparagraph (D), shall be made ratably on the

basis of aggregate contributions made under the

applicable 1988 coal wage agreements.

“(2) IST PLAN YEAR.—In the case of the plan year

of the Combined Fund beginning February 1, 1993—

“(A) the premium under subsection (a)(1) shall

be 67 percent of the premium without regard to this

paragraph, and

“(B) the premiums under subsection (a) shal

be paid as provided in subsection (g). —

29a

28:

" Such funds may not be used to pay any amounts required to

be paid by the 1988 agreement operators under section

9704(i)(1)(B).

“SEC. 9705. TR ANSFERS. (4) TAX TREATMENT; VALIDITY OF TRANSFER, —

“(a) TRANSFER OF ASSETS FROM 1950 UMWA PENSION “(A) NO DEDUCTION.—No deduction shall be

fis sie ee allowed under this title with respect to any transfer

, served under pursuant to paragraph (1), but such transfer shall not

neta net tha tae UMWA adversely affect the deductibility (under applicable

paragraph (~-), i

Pension Plan shall transfer to the Combined Fund—

“(A) $70,000,000 on February 1, 1993,

“(B) $70,000,000 on October 1, 1993, and

“(C) $70,000,000 on October 1, 1994.

“(2 ERVATION.—Immediately upon the

oma ro the board of trustees of the 1950 age

Pension Plan shall segregate $210,000,000 from :

general assets of the plan. Such funds shall be held in fe e

plan until disbursed pursuant to paragraph (1). ny

interest on such funds shall be deposited into the gene

assets of the 1950 UMWA Pension Plan.

“(3) USE OF FUNDS.—Amounts transferred to the

Combined Fund under paragraph (1) shall—

“(A)1 case of the transfer on February 1,

ig to proportionately reduce the

premium of each assigned operator under section

9704(a) for the plan year of the Fund beginning

February 1, 1993, and

“(B) in the case of any other such transfer, be

used to proportionately reduce the en

beneficiary premium under section ica Be

each assigned operator for the plan year in whic

transferred and for any subsequent plan year in

which such funds remain available.

provisions of this title) of contributions previously

made by employers, or amounts hereafter

contributed by employers, to the 1950 UMWA

Pension Plan, the 1950 UMWA Benefit Plan. the

1974 UMWA Pension Plan, the 1974 Benefit Plan.

the 1992 UMWA Benefit Plan, or the Combined

Fund.

“(B) OTHER TAX PROVISIONS.—Any transfer

pursuant to paragraph (1) —

“(i) shall not be treated as an employer

reversion from a qualified plan for purposes of

section 4980, and

“(1i) shall not be includible in the gross

income of any employer maintaining the 1950

UMWA pension Plan.

“(S) TREATMENT OF TRANSfer.—Any transfer

pursuant to paragraph (1) shall not be deemed to violate, or

to be prohibited by, any provision of law, or to cause the

settlors, joint board of trustees, employers or any related

person to incur or be subject to liability, taxes, fines or

penalties of any kind whatsoever.

“(b) TRANSFERS FROM ABANDONED MINE RECLAMATION

FUND. —

“(1) IN| GENERAL.—The Combined Fund shall

include any amount transferred to the Fund under section

30a

402(h) of the Surface Mining Control and Reclamation Act

of 1977 (30 U.S. C. 1232(h)).

“(2) USE OF FUNDS.—Any amount transferred under

paragraph (1) for any fiscal year shall be used to

proportionately reduce the unassigned beneficiary premium

under section 9704(a)(3) of each assigned operator for the

plan year in which transferred.

“SEC. 9706. ASSIGNMENT OF ELIGIBLE BENEFICIARIES

. is chapter, the

“(a) IN GENERAL.—For purposes of this c

wane of Health and Human Services shail, before October

1, 1993, assign each coal industry retiree who is an eligible

beneficiary to a signatory operator which is in business in the

following order:

“(1) First, to the signatory operator which—

“(A) was a signatory to the 1978 coal wage

agreement or any subsequent coal wage agreement,

and

“(B) was the most recent signatory operator to

employ the coal industry retiree in the coal industry

for at least 2 years.

“(2) Second, if the retiree is not assigned under

paragraph (1), to the signatory operator which —

“(A) was a signatory to the 1978 coal wage

agreement or any subsequent coal wage agreement,

and

“(B) was the most recent signatory operator to

employ the coal industry retiree in the coal industry.

“(3) Third, if the retiree is not assigned es :

(1) or (2), to the signatory operator whic

a tt the coal industry retiree in the coal industry

for a longer period of time than any other signatory

operator during all periods before 1978.

3la

“(b) RULES RELATING TO EMPLOYMENT.—For purposes

of subsection (a) —

“(1) RELATED PERSON.—Any employment of a coal

industry retiree in the coal industry by a related person with

respect tO a signatory operator shall be treated as

employment by the operator.

(2) CERTAIN EMPLOYMENT DISREGARDED.—

Employment with—

“(A) a person no longer in business, or

“(B) a person who has never been a signatory to

a coal wage agreement,

shall not be taken into account.

“(c) IDENTIFICATION OF ELIGIBLE BENEFICIARIES.—The

1950 UMWA Benefit Plan and the 1974 UMWA Benefit Plan

shall, by the later of October 1, 1992, or the twentieth day

after the enactment date, provide to the Secretary of Health

and Human Services a list of the names and social security

account numbers of each eligible benéficiary, including each

deceased eligible beneficiary if any other individual is an

eligible beneficiary by reason of a relationship to such

deceased eligible beneficiary. In addition, the plans shall

provide, where ascertainable from plan records, the names of

all persons described in subsection (a) with respect to any

eligible beneficiary or deceased eligible beneficiary.

“(d) COOPERATION BY OTHER AGENCIES AND PERSONS. —

“(1) IN GENERAL.—The head of any department,

agency, Or instrumentality of the United States shall

cooperate fully and promptly with the Secretary of Health

and Human Services in providing information which will

enable the Secretary to carry out his responsibilities under

~ this section.

32a

“(2) PROVIDING OF INFORMATION. —

‘ “(A) IN GENERAL.—Notwithstanding any other

provision of law, including section 6103, the head of

any other agency, department, or instrumentality shall,

upon receiving a request from the Secretary of Health

and Human Services in connection with this section,

cause a search to be made of the files and records

maintained by such agency, department, or

instrumentality with a view to determining whether

the information requested is contained in such files or

records. The Secretary shall be advised whether the

search disclosed the information and, if so, such

information shall be promptly transmitted to the

Secretary, except that if the disclosure of any

requested information would contravene national

policy or security interests of the United States, or the

confidentiality of census data, the information shall

not be transmitted and the Secretary shall be so

advised.

“(B) LIMITATION.—Any information provided

under subparagraph (A) shall- be limited to

information necessary for the Secretary to carry Out

his duties under this section.

“(3) TRUSTEES.—The trustees of the Combined

Fund. the 1950 UMWA Benefit Plan, and the 1974

UMWA Benefit Plan shall fully and promptly cooperate

with the Secretary in furnishing, or assisting the

Secretary to obtain, any information the Secretary needs

to carry out the Secretary’s responsibilities under this

section.

“(e) NOTICE BY SECRETARY. —

“(1) NOTICE TO FUND.—The Secretary of Health and

Human Services shall advise the trustees of the

Combined Fund of the name of each person identified

under this section as an assigned operator, and the names

33a

and social security account n

pee umbers of eligi

beneficiaries with respect to whom he is identified. igible

“(2) OTHER NOTICE.—The Secre

- tary of Health and

Human Services Shall notify each assigned operator of the

a and social security account numbers of eligible

oe an eh have been assigned to such person under

Is section [and a brief explanati

oo col planation of the basis for such

“(f) RECONSIDERATION BY SECRETARY. —

“(1) IN GENERAL.—Any assigned operator receivin

. . .

sone under subsection (e)(2) with respect to an eligible

neficiary may, within 30 days of receipt of such notice

request from the Secretary of Health and Human Services

detailed information as to the basis of the assignment.

i (2) REVIEW.—An assigned operator may, within 15

ys of receipt of the information under paragraph (1)

request review of the assignment. The Secretary of Health

sah Human Services shall conduct such review if the

tary finds the operator provided evidence with the

request constituting a prima facie case of error.

“(3) RESULTS OF REVIEW.—

“(A) ERROR.—If the Secretary of Heal

th and

Human Services determines under a review under

paragraph (2) that an assignment was in error—

_ “(ithe Secretary shall _ noti

assigned Operator and the trustees anu

the premiums of the operator under section 9704

by (or if there are no such premiums, repay) all

premiums paid under section 9704 with respect

to the eligible beneficiary, and

“(ii) the Secretary shall review the

beneficiary’s record for reas ignment unde

subsection (a). " ™ ;

34a

“(B) NO ERROR. —If the Secretary of Health and

Human Services determines under a review conducted

under paragraph (2) that no error occurred, the Secretary

shall notify the assigned operator.

(4) APPEALS. —

“(A) FINALITY.—Any determination by the Secretary

of Health and Human Services under paragraph (2) or (3)

shall be final.

“(B) COURT ACTION.—If a court overtums a

determination by the Secretary of Health and Human

Services under paragraph (3)(B) —

“(i) the trustees of the Combined Fund shall

reduce the premiums of the operator under section

9704 by (or if there are no such premiums, repay) all

premiums paid under section 9704 with respect to the

eligible beneficiary, and

“(ii) the Secretary shall review beneficiary’s

record for reassignment under subsection (a).

“(5) PAYMENT PENDING REVIEW.—An assigned

operator shall pay the premiums under section 9704

pending review by the Secretary of Health and Human

Services or by a court under this subsection.

“(g) CONFIDENTIALITY OF INFORMATION.—Any person

to which information is provided by the Secretary of Health

and Human Services under this section shall not disclose such

information except to the extent necessary for purposes of this

section. Any civil or criminal penalty which is applicable to

an unauthorized disclosure under section 6103 shall apply to

any unauthorized disclosure under this section.

3Sa

“PART III—ENFORCEMENT

“Sec. 9707. Failure to pay premium

“SEC. 9707. FAILURE TO PAY PREMIUM.

“(a) GENERAL RULE.—There is hereby imposed a

on the failure of any assigned operator to pay any ee

required to be paid under section 9704 with respect to any

eligible beneficiary.

_ “(b) AMOUNT OF PENALTY.—The amount of the penalty

imposed by subsection (a) on any failure with respect to any

eligible beneficiary shall be $100 per day in the noncompliance

period with respect to any such failure.

“(c) NONCOMPLIANCE PERIOD.—For purposes of this

section, the term ‘noncompliance period’ means, with respect to

any failure to pay any premium or installment thereof, the

period—

ee oo oe See Gite Ger cach promt or

“(2) ending on the date of of such

ont " payment of such premium

“(d) LIMITATIONS ON AMOUNT OF PENALTY. —

“(1) IN GENERAL.—No penalty shall be imposed by

subsection (a) on any failure during any period for which it

is established to the satisfaction of the Secretary of the

Treasury that none of the persons responsible for such

failure knew, or exercising reasonable diligence, would

have known, that such failure existed.

“(2) CORRECTIONS. —No penalty shall be imposed

subsection (a) on any failure if— ”

“(A) such failure was due to reasonable cause

and not to willful neglect, and

. “(B) such failure is corrected during the 30-day

period beginning on the Ist date that any of the

36a

persons responsible for such failure knew, or

exercising reasonable diligence would have known,

that such failure existed.

“(3) WAIVER.—In the case of a failure that is due to

reasonable cause and not to willful neglect, the Secretary of

the Treasury may waive all or part of the penalty imposed

by subsection (a) for failures to the extent that the Secretary

determines, in his sole discretion, that the payment of such

penalty would be excessive relative to the failure involved.

“(e) LIABILITY FOR PENALTY.—The person failing to

meet the requirements of section 9704 shall be liable for the

penalty imposed by subsection (a),

“(f) TREATMENT.—For purposes of this title, the penalty

imposed by this section shall be treated in the same manner as

the tax imposed by section 4980B.

“PART IV—OTHER PROVISIONS

“Sec. 9708. Effect on pending claims.

“SEC. 9708. EFFECT ON PENDING CLAIMS.

“All liability for contributions that become due to the

Combined Fund on and after February 1, 1993, shall be

determined under this chapter. However, nothing in this

chapter is intended to have any effect on any claims arising in

connection with the 1950 UMWA Benefit Plan and the 1974

UMWA Benefit Plan before February 1, 1993, including

claims based on the ‘evergreen’ clause found in the language

of the 1950 UMWA Benefit Plan and the 1974 UMWA

Benefit Plan. This chapter shall not be construed to affect any

rights of subrogation of any 1988 agreement operator with

respect to contributions due to the 1950 UMWA Benefit Plan

or the 1974 UMWA Benefit Plan before February 1, 1993.

37a

1992 FUND

[TO BE SUPPLIED]

(b) AMENDMENTS TO SURFACE MINING ACT. —

(1) EXTENSION OF FEE PROGRAM.—Section 402(b

of the Surface Mining Control and Reclamation haa

1977 (30 U.S.C. 1232(b)) is amended by striking

te mber 30, 1995” and inserting “September 30,

[(1) EXTENSION OF FEE PROGRAM.—Section

of the Surface Mining Control and Scientia aan od

1977 (30 U.S.C. 1232(b)) is amended by striking

‘September 30, 1995 and inserting “with the earlier of

September 30, 2005, or the fiscal year following the first

fiscal year for which there are no unassigned beneficiaries

(within the meaning of section 9704(d) of the Internal

Revenue Code of 1986) within the United Mine Workers

of America Consolidated Benefit Fund established under

section 9702 of such Code”.}

(2) TRANSFER TO FUND.—Section 402 of such

(30 U.S.C. 1232) is amended by adding at the and @

following new subsection:

“(h) TRANSFER OF FUNDS TO COMBINED FUND. —

(1) In the case of any fiscal year beginning ing on or after

October 1, 1995, with respect to which fees are required to

be paid under this section, the Secretary shall, as of the

beginning of such fiscal year and before any allocation

under subsection (g), make the transfer provided in

paragraph (2).

“(2) The Secretary shall transfer from the fund

. . é

the United Mine Workers of America Combined Benefit

De aay exten SE ot Ge Seen

venue l for any fiscal amoun

equal to the sum of — ’ siecle

38a

“(A)the amount of the interest which the

Secretary estimates will be earned and paid to the

Fund during the fiscal year, plus

“(B) the amount by which the amount described

in subparagraph (A) is less than $70,000,000.

“(3)(A) The aggregate amount which may be

transferred under paragraph (2) for any fiscal year

shall not exceed the amount of expenditures which

the trustees of the Combined Fund estimate will be

debited against the unassigned beneficiaries

premium account under section 9704(e) of the

Internal Revenue Code of 1986 for the fiscal year of

the Combined Fund in which the transfer is made.

“(B) The aggregate amount which may be

transferred under paragraph (2)(B) for all fiscal

years shall not exceed an amount equivalent to all

interest earned and paid to the fund before October

1, 1985.

“(4) If, for any fiscal year, the amount transferred is

more or less than the amount required to be transferred,

the Secretary shall appropriately adjust the amount

transferred for the next fiscal year.”

{(3) Stupy.—f, as of the close of any fiscal year, the

Secretary of Health and Human Services determines that

there are no unassigned beneficiaries in the United Mine

Workers of America Combined Benefit Fund, the Secretary

shall conduct a study and report to the Congress by the

close of the following fiscal year as to

(A) the possibility of any future unassigned

beneficiaries coming into the Combined Fund, and

(B) the necessity for continuing the fees under

section 402(b) of the Surface Mining Control and

Reclamation Act of 1977, including consideration

of the effect of the Clean Air Act on the need for

continuing such fees.]

39a

(4) CONFORMING AMENDMENTS.—{A) Section

; 401

= Act (30 U.S.C. 1231(c)) is amended by striking “ant at

end YF ye eet by redesignating paragraph (12) as

on : ing after paragraph (11) the following

a for the purpose described in section 402(h);

(B) Section 402(g)1) of such Act

' (30 U.S.C.

I 232(g) is amended by striking “Moneys” and inserting

Except as provided in subsection (h), moneys”

40a

102p ConGREss HOUSE OF REPRESENTATIVES REPORT

2d SESSION

102-1018

ENERGY POLICY ACT OF 1992

CONFERENCE REPORT

TO ACCOMPANY

H.R. 776

OCTOBER 5, 1992—Ordered to be printed

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 1992

59-693

4la

ENERGY POLICY ACT OF 1992

OCTOBER 5, 1992—Ordered to be printed

Mr. DINGELL, from the committee of conference,

submitted the following

CONFERENCE REPORT

[To accompany H.R. 776}

The committee of conference on the disagreeing votes of

the two Houses on the amendment of the Senate to the bill

(H.R. 776), to provide for improved energy efficiency, having

met, after full and free conference, have agreed to recommend

and do recommend to their respective Houses as follows:

That the House recede from its disagreement to the

amendment of the Senate and agree to the same with an

amendment as follows:

In lieu of the matter proposed to be inserted by the

Senate amendment, insert the following:

SECTION 1. SHORT TITLE: TABLE OF CONTENTS.

(a) SHORT TrrLeE. —This Act may be cited as the “Energy

Policy Act of 1992” .

(b) TABLE OF CONTENTS. —

TITLE 1—ENERGY EFFICIENCY

Subtitle A—Buildings

Sec. 101. Building energy efficiency standards.

Sec. 102. Residential energy efficiency ratings.

42a

Sec.103 Energy efficient lighting and building centers

Sec. 104 Manufactured housing energy efficiency.

Sec. 105 Energy efficient mortgages.

Sec. 106 Energy efficient mortgages pilot program.

Subtitle B—Vtilities

Sec. 111 Encouragement of investments in conservation and

energy efficiency by electric utilities.

Sec. 112 Energy efficiency grants to State regulatory

authorities.

Sec. 113. Tennessee Valley Authority least-cost planning

program.

Sec. 114 Amendment of Hoover Power Plant Act.

* * * *® *

20.2056(b)-5(c)). Finding this regulation invalid, courts have

held that the term “specific portion” includes a fixed dollar

amount. See Northeastern Pennsylvania National Bank &

Trust Co. v. United States, 387 U.S. 213 (1967), Estate of

Alexander v. Commissioner, 82 T.C. 34 (1984), aff d, No.

8401600 (4th Cir. April 3, 1985). Under the court holdings,

appreciation in certain marital deduction property may be

includible in neither spouse's estate.

House bill

No provision in H.R. 776. (However, H.R. 11 as passed

by the House contains the same provision as included in the

conference agreement described below).

Senate amendment

No provision in H.R. 776. (However, H.R. 11 as

amended by the Senate contains the same provision as

included in the conference agreement described below.

Conference agreement

The conference agreement provides that, for purposes of

the marital deduction, a “specific portion” only includes a

portion determined on a fractional or percentage basis. Thus,

43a

—_ does not qualify under the exceptions to the terminable

erest rule unless the required income interest and general

power of appointment are expressed :

percentage of the property. pres as a fraction . a

It is intended that no inference

It be drawn from the

a with respect to the definition of “specific portion”

under present law. The conference agreement does not

generally affect the marital deduction allowed for a pecuniary

formula marital deduction

9 ICR ne Oe Bem. Proc. &-

Effective date——The provision generall li

made, and decedents dying, after date pr sonst a

provision does not apply to a transfer under a will or

revocable trust executed before the date of enactment if either

(1) on that date the decedent was under a mental disability to

change the disposition of his property and did not regain his

competence to dispose of such property before the ro of

death, or (2) the decedent dies within three years after the date

ra yen The provision applies, however, if the will or

. . ha amended after the date of enactment in any respect

pasate porate amount of the transfer qualifying for the

oor ion or alters the terms by which the interest

C. HEALTH BENEFITS FOR RETIRED COAL MINERS

Present Law

The United Mine Workers of America (UMW

and retirement funds were established in on sores gg

agreement ‘between the UMWA and the Bituminous Coal

Operator’s Association (BCOA) to provide pension and

health benefits to retired coal miners and their dependents

The funds have been maintained for this purpose through a

series of collective bargaining agreements. The funds ame

in 1974 were a restructuring of the origi

which Wen cotabitched tn 190% ——

toa

The funds consist of four different plans, each of which

is funded through a separate trust. The 1950 Pension Plan

provides retirement benefits to miners who retired on or

before December 31, 1975, and their beneficiaries. The 1950

Benefit Plan provides health benefits for retired mine workers

who receive pensions from the 1950 Pension Plan and their

dependents. The 1974 Pension Plan provides retirement

benefits to miners who retire after December 31, 1975, and

their beneficiaries. The 1974 Benefit Plan provides health

benefits to miners who retire after December 31, 1975. It also

provides health benefits to miners whose last employers are

no longer in business or, in some cases, no longer signatory to

the applicable bargaining agreement. These miners are

generally referred to as “orphan” retirees. -

The Surface Mining Control and Reclamation Act of

1977, as amended, imposes a reclamation fee on coal mining

operators, payable quarterly to the Secretary of the Interior for

deposit in the Abandoned Mine Reclamation Fund (the AML

Fund). The fee generally is the lesser of (1) 35 cents per ton

of coal produced by surface coal mining and 15 cents per ton

of coal produced by underground mine or (2) 10 percent of

the value of the coal at the mine. The fee for lignite is the

lesser of 2 percent of the value of the coal at the mine or 10

cents per ton. The reclamation fee is scheduled to expire after

September 30, 1195.

House bill

The House bill extends the abandoned mine reclamation

fee through September 30, 2010.

Effective Date—Date of enactment.

Senate amendment "

The Senate amendment provides that the 1950 Benefit

Plan and the 1974 Benefit Plan are to be merged into a new

UMWA Combined Benefit Fund (“Combined Fund”) to

provide health and death benefits for eligible retirees and their

dependents. The Combined Fund is to be financed primarily

45a

by health benefit premiums, death benefit premiums, and

unassigned beneficiaries premiums imposed on assigned

operators. The Combined Fund will receive additional

funding from transfers from the 1950 Pension Plan and the

AML Fund. The amendment also creates a 1992 Benefit Fund

to provide benefits for persons not eligi

femme pe not eligible under the

The Senate amendment extends the abandoned mi

reclamation fund fee through September 20, 2004. —

Conference agreement

The conference agree |

ment follows the Sen

amendment. T

D. Trade Provision: Anticircumvention of

Antidumping and Countervailing Duty

Orders

Present Law

The Omnibus Trade and Competiveness Act of 1988

expanded antidumping and countervailing duty law to

authorize the Department of Commerce to take action to

address attempts to circum

* eke kK *

Ate 47a

Renewable Energy

145

LEGISLATIVE HISTORY Coal 146

HOUSE REPORT NO. 102-474(1) Strategic Petroleum Reserve

House Conference Report No. 102-1018. Oct. 5. 1992 Octane Display and Discl _

[To accompany H.R. 776) Greenhouse W. IS]

No Senate Report was submitted with this legislation. Hechoclectric F 152

The House Report (Parts ]-IX (this page, 2064, 2182, 2201, 153

9210, 2232, 2271, 2282, 2422)) is set out below and the Oil Pipeline Regulation

House Conference Report (page 2472) and the President's Mlecelleneces 153

Signing Statement (page 2534-1) follow. ° 153

HOUSE REPORT NO. 102-474(1) _ OS neal giana ete eaeaeaeeanaanaaceaes 153

| Committee Consideration......

(page 1] | —— eee 154

The committee on Energy and Commerce, to whom was ittee Oversight F indings Ceecercececoccccceseceseeccscsccseseesecesccseees 155

referred the bill (H.R. 776) to provide for improved energy [page 2]

efficiency, having considered the same report favorable

thereon with an amendment and recommend that the bill as Page

amended do pass. Committee on Government Operations................. 155

LS eas 155

CONTENTS Cnn Budget Office Estimate.................ccccces-0+- 157, 169

ren Inflationary Impact Statement ...............cescecessesesseseeseseeeeees 169

a ee 2 pages a Analysis and DisCussion .......evcessesses 170

Purpose and SUIMMMary ....----eesvesssssssreeeeeeeeeeeesereesereneeerseeseee eee 132 Te uy Eicon 170

Background and Need for Legislation ...nnnmnennnn 132 iota tig sasuainaaptagmas 17

~— —Altemative Fuels—Non-Federal

Natural Gas Pipelines. 135 mongge PHOTAINS. .eceeeeee 184

—Replacement Fuels, Altemative

nannies 136 Altemative Fueled Private Vehicles oa =

Electncity 138 Title VI—Blectric Motor Vehicles -

High-Level Radioactive Waste 140 Title Vil—Electricity 192

Uranium Enrichment 142 Title VII—High-Level Radioactive Waste a

48a

Title IX—Uranium Enrichment Corporation 197

Title X—Remedial Action at Active Processing Sites «1-204

Title XI-—Uranium Enrichment Health, Safety, and

Environment Issues

Title XIl—Renewable Energy 208

Title X1I—Coal 210

Title XIV—Strategic Petroleurn Reserve... 217

Title XV—Octane Display and Disclosure .. 20

Title XVI—Greenhouse Warming-Energy Implications .........220

Title X VII—Additional Federal Power Act Amendments......222

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.