# Amicus Curiae Brief — Barnhart v. Sigmon Coal Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0453%3A16 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2002 - **Citation:** 534 U.S. 438 ## Text 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 ee Ce I crcccccetttenenpenenmmnmenmmennen ii 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 ii 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. 2 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 3 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. 3 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). 4 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 5 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. 6 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 7 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. 8 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. 9 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 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. “(C) 1974 UMWA BENEFIT PLAN.—The term ‘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 d 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, by “(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 cs 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 Energy Efficiency 133 napa © Fuels—General 182 ~— —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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0453%3A16. Public record. Not legal advice.