Congress of the United States
Washington, DC 20515
October 25, 2001
The Honorable John Ashcroft
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear General Ashcroft:
On September 21, 2001, Congress pased H.R. 2926, the Air Transportation Safety System Stabilization Act (now Public Law 107-42), a critical first step toward ensuring the future vitality of commercial aviation in America and throughout the world.
While H.R. 2926 provides immediate assistance to the industry, it also addresses Congress' urgent
responsibility to ensure fairness, justice and compassion for the human victims of the horrific events of September 11, and for their families. Title IV of the Act establishes a September 11th Compensation Fund to be administered by a Special Master appointed by the Attorney General of the United States.
We write to urge you to appoint that Special Master expeditiously but with due diligence. As you know, Section 407 of the measure requires that you, in consultation with the Special master, promulgate regulations to carry out the activities of the fund within 90 days of the bill's enactment. To that end, it is vital that a Special Master be appointed quickly.
We feel strongly that the Special Master you choose must have the support and confidence of the
Senate and the House and of the elected representatives of the victims in particular. Title IV vests an enormous amount of power and discretion in you and in the Special Master. The regulations you promulgate and the way you administer the fund will have enormous repercussions for the victims and their families.
The Special Master you select must have extensive experience, extraordinary judgement and legal
ability, broad respect within the legal community and bipartisan support in Congress. Accordingly, we respectfully request that you consult with us prior to select the Special Master and promulgating regulations.
Our nation and congress have come together, heeding the president's call for unity in action and spirit in the wake of terrible events of September 11. We know that you will appoint the Special Master and promulgate the regulations in that same spirit of cooperation and consultation, and we stand ready to assist in this effort. We look forward to communicating in the very near future to discuss this process.
Attached you will find proposed regulations we would like you to consider for the September 11th
Compensation Fund.
Yours respectfully,
Tom Dasehle
Richard A. Gephardt
Senate Majority Leader
House Democratic Leader
Patrick L. Leahy
John Conyers, Jr.
Chairman, Senate Judiciary Committee
Ranking Member, House Judiciary Committee
Regulations pursuant to Section H.R. 2926, Section 407,
"September 11th Victim Compensation Fund of 2001"
401. Scope and Purpose. The regulations in this part apply to claims presented or filed pursuant to the September 11th Victim Compensation Fund of 2001 (the "Act"). The purpose of these regulations is to effectuate a coherent framework to provide full, fair, uniform and expeditious compensation to victims and families of victims resulting from the terrorist attacks of September 11, 2001 and these regulations should be interpreted to effectuate that purpose.
402. Definitions and use of terms. For purposes of these regulations and used as used in the Act, except where otherwise provided, the following definitions shall apply:
1. Spouse. The term, "spouse," shall mean the person who is deemed by the laws of the state in which the claimant resides to be legally married to the claimant at the time of his or her death; or is deemed to be the claimant's spouse under the laws of the state in which the claimant resided that would apply in determining the devolution of the claimant's intestate personal property or would have the right of a spouse to share in the claimants intestate personal property under such laws.
2. Child. The term, "child," shall mean any natural or adopted child of the claimant or decedent on whose behalf a claim is brought under the Act.
3. Minor Child. The term, "minor child," as used in these regulations, shall refer to any child who is no more than 18 years old, or no more than 23 years old where such child is enrolled full time as a student in a secondary or post-secondary educational institution.
4. Decedent. The term, "decedent," shall mean a person who has been declared by law or appropriate legal authority to be deceased.
5. Decedent Claimant. The term, "decedent claimant," shall mean a decedent person on whose behalf a claim is brought under the Act.
6. Dependent. The term, "dependent," as used in these regulations shall mean any person who received or reasonably would receive in the future services or support from the
decedent or injured person.
7. Personal Representative of the Decedent. For the purposes of filing a claim under the Act, "personal representative of the decedent," shall mean: (1) a person named by the
decedent in a will or other testamentary document; (2) a parent or the legal guardian of
the decedent where the decedent was a minor or was under the legal custody of another person or institution pursuant to an award of custody established by a court of competent jurisdiction; or (3) a person duly qualified or appointed under an applicable state law.
8. Immediate Aftermath. The term, "immediate aftermath," shall mean the period
commencing at the time of the crash of each of the air carriers in the September 11th attack, or the period commencing at the time of the collapse of any building that occurred on that same date as a result of such crash and terminating 48 hours thereafter, and shall be extended beyond such period only to include efforts by authorized persons to rescue persons or recover human remains from the site of the collapse of any such building or crash.
9. Physical Harm. The term, "physical harm," shall mean any direct injury to a person and any resulting condition, disability or loss that directly and in natural sequence is caused by the injury.
10. Present at. The term, "present at," shall mean being within the described physical location, within any building at the described physical location, or in such proximity of any described physical location so that a person suffered physical harm due to impact from
any part of an aircraft or building within a described physical location.
11. Collateral Source. The term "collateral source" shall include payments to the Claimant from sources of compensation or benefits, including life insurance, pension funds, death benefit programs, and payments by Federal, State or local governments as a result of the terrorist-related aircraft crashes on September 11, 2001. It shall not include any grants or gifts given, or expected to be given, to the Claimant as a result of the terrorist-related aircraft crashes on September 11, 2001, from any non-profit, religious or other charitable 501 (c)(3) organization.
12. "collateral source compensation .... has received or is entitled to receive." For the purposes of determining the amount by which to reduce a Claimant's compensation due to collateral source compensation, the Special Master shall consider collateral source payments received by the Claimant or personal representative of decedent and collateral source payments that are reasonably certain to be due Claimant or personal representative of decedent in the future. Reasonably certain means collateral source payments as to which there is either a statutory or contractual right or fully vested interest at the time of the final determination.
403. Special Master/Hearing Officers.
1. Special Master. The Attorney General's appointment of any individual as the Special Master shall be for a term of 3 years, subject to termination by the Attorney
General for incompetency, misconduct, or neglect of duty or for any other good cause shown.
The Special Master shall be responsible for the following:
a) Administering the Office of Special Master, hiring its staff, providing for the
efficient, expeditious, and effective handling of claims, and performing such other
duties related to the Act as may be assigned by the Attorney General;
b) Administering the September 11ththth Victim Compensation Fund established under this
Act;
c) Promulgating all procedural and substantive rules for the administration of this Fund;
d) Appointing and fixing the salary and duties of such administrative staff as necessary. Such
staff shall be subject to removal for good cause by the Special Master;
e) Appointing and fixing the salary and duties of such Hearing Officers as necessary;
f) Managing and executing all aspects of budgetary and administrative affairs affecting the Hearing Officers and their staff; and
g) Reporting every 6 months to the Attorney General and the committees of the Judiciary of the House of Representatives and the Senate on the number of claims filed and
their disposition, the types and amounts of awards, the length of time for the
disposition of the petitions, the cost of administering the Program, and recommendations for changes in theProgram.
12. Hearing Officers.
1. Qualifications. Hearing officers shall be retired federal court judges, retired
state court judges of general jurisdiction or appellate courts or certified
mediators. Hearing officers shall be selected from the locales where hearings
are to be held and shall be in consultation with the Chief Judge of the United
States DistrictCourt in the District(s) or the Chief Justice of the State from
said locations. Employees of the United States government, airline industry or
insurance industry shall not be selected as Hearing Officers.
2. Authority of Hearing Officers. Hearing Officers are authorized to:
a) Conduct formal hearings with respect to, and adjudicate claims in
accordance with, these regulations and the Act;
b) Administer oaths and examine witnesses;
c) Compel the production of documents and appearance of witnesses by issuance
of a subpoena;
d) Prepare documents for the signature of the parties;
e) Issue decisions and orders with respect to claims as provided in this
part; and
f) Do all other things necessary to enable him or her to discharge the
duties of theoffice.
A Hearing Officer may be removed by the Special Master because of incompetence,
misconduct, neglect of duty or for other good cause shown.
No Hearing Officer shall conduct any proceedings in a claim in which he or she is prejudiced
or partial, or where he or she has any interest in the matter pending for decision. Upon
of a Heanng Officer, a Claimant may within 15 days challenge said Hearing Officer setting
assignment forth in writing the basis of said challenge. A decision to withdraw from the
consideration of a claim shall be within the discretion of the Hearing Officer and
reviewable by the Special Master. If the Hearing Officer withdraws, another Hearing Officer shall be designated by the Special Master to complete the adjudication of the claim in a timely manner.
No Hearing Officer shall be permitted to appear or act as a representative of a party under this
part while such individual is employed as a Hearing Officer. No Hearing Officer shall be
permitted at any time to appear or act as a representative in connection with any case or claim
in which he or she was personally involved.
No Hearing Officer shall act in any claim involving a party that employed such Hearing Officer
within one year before the adjudication of such claim.
Notwithstanding paragraph (1) of this subsection, no Hearing Officer shall be permitted to act in
any claim involving a party who is related to the Hearing Officer by consanguinity or affinity
within the third degree as determined by the law of the place such party is domiciled. Any
action taken by a Hearing Officer in knowing violation of this paragraph shall be void.
404. Presenting Claims.
1 . Forms and Contents - All claims must be in writing and submitted on the standard form
contained in these regulations. The form must be completed, signed under oath either
by a person eligible to file a claim under the Act, by that person's legal guardian or by
the personal representative of a decedent and any counsel for the claimant and mailed
to .
2. Attorney Referral- Claim forms issued by the Special Master shall include clear and
conspicuous statements regarding Claimant rights to an attorney. Forms shall be
accompanied by information on how to receive pro bono assistance.
3. Standard Claim Form - Copies of the standard claim form shall be available .
4. Filing - Upon receipt of a claim, the Special Master shall within 14 days review
the claim for completeness. If a claim is deemed complete or at the expiration of 14
days, the claim shall be deemed filed. The date of filing shall be recorded by a stamp
on the face of the standard form. If the claim is deemed to be incomplete, it shall be
promptly returned unfiled to the sender with a statement identifying reasons why the
claim does not comply. The claim may be resubmitted after correcting the deficiencies.
When claims are filed, the filing shall be promptly acknowledged with a letter identifying
the number assigned to the claim and the date the claim was filed. Claims which
substantially comply with the requirements of Rule 403.1 shall not be deemed to be
incomplete and shall be accepted for filing.
5. Single Claim - There may be only one claim for each injury or death. The claim
shall identify and be on behalf of persons who are entitled to be beneficiaries of the
claim. In the case of a decedent, the claim shall be filed by the personal representative
of the decedent on behalf of all persons entitled to receive compensation, by reason of
the death of the decedent.
6. Who May File A Claim - The following persons are eligible to file claims for
compensation:
a) An injured adult person, on behalf of themself and any spouse or children.
b) A duly appointed guardian of an injured adult person, on behalf of the injured person and
any spouse or children of the injured person.
c) A duly appointed guardian of an injured minor, on behalf of the injured child and the
parents of the injured child.
d) In the case of a decedent, a duly appointed personal representative. A personal
representative shall act on behalf of any surviving spouse, any children of the decedent,
any children of a deceased child of the decedent, parents of the decedent, any
dependents of the decedent and the decedent's estate. Personal representatives shall
be appointed in accordance with the laws of the decedent's domicile.
7. Attorney Representative - A claimant need not be represented by an attorney to file a
claim under the Act.
a) If the claimant desires to be represented, then the attorney selected by the
claimant must be a member in good standing of the bar of the highest court of a
state.
b) Attorneys on behalf of claimants shall attest that he/she - is a member in good
standing of the bar of the highest court of a state and is authorized to represent
the claimant.
c) It shall be the ethical obligation of any attorney who represents a victim of the
September 11th terrorist attacks to advise said person(s) of the compensation
available under the Act and the availability of any pro bono program.
8. Immigration Status Information -- Any information concerning the immigration status of
a Claimant or a dependent of a Claimant shall not be disclosed to the Immigration and Naturalization Service.
405. Hearings.
1. Time of Hearings. Hearings must be scheduled and completed within 120 days of the
date a claim is filed. The claimant may extend said time or may waive the right to a
hearing by making a written request to the Hearing Officer. Any such request must be
signed by the Claimant.
2. Notice of Hearing. The Hearing Officer shall provide to the Claimant at least 10 days
written notice of the time and place at which the hearing will be held.
3. Commencement of 120-day Hearing Period. The 120-day period for review and
determination of a claim shall commence upon the date that the claim is deemed filed.
4. Time and Place of Hearing. Hearings shall be scheduled and held, to the extent practical,
at a place within 50 miles of the Claimwit's residence unless an alternative location is
required by the Claimant. At the request of the Claimant, the Hearing Officer shall
provide for an opportunity to conduct a hearing via telephone, Internet or video
conferencing.
5. Parties to Proceedings. The following persons shall be parties to the proceedings on
claims: (a) the Claimant and any authorized representative and (b) the government acting
by and through authorized personnel of the Department of Justice. Parties may waive
their right to appear.
6. Burden of Proof. The burden of proving a fact alleged shall rest with the party making
the allegation. The standard of proof shall be a preponderance of the evidence. Proof by
a preponderance of the evidence means that it is more likely than not that the proposition
to be proved is true.
7. Affidavits. Written affidavits or declarations, subject to penalty for perjury, will be
accepted as evidence of employment history, earnings, loss of services, and survivor
relationships.
8. Rules of Evidence. The Hearings Officer is not bound by common law or statutory rules
of evidence, or by technical or formal rules of procedure. The Hearing Officer shall
conduct the hearing in such a manner as to best ascertain the rights of the Claimant and
fulfill the purposes of the Act.
9. Documentary Evidence. A Claimant may submit either the original or a clear readable
copy of any document. The Hearing Officer may require the submission of an original
document, if an original exists, if necessary to a decision on the claim.
10. Witness. Witnesses at the hearing shall testify under oath or affirmation. The Hearing
Officer and the parties may question witnesses with respect to any matters relevant and
material to any contested issue.
11. Record of Hearing. All hearings shall be open to the public and shall be mechanically or
stenographically reported. All evidence upon which the Hearing Officer relies for
decision shall be contained in the transcript of testimony, either directly or by appropriate
reference. All medical reports, exhibits, and any other pertinent document or record,
either in whole or in material part, introduced as evidence, shall be marked for
identification and incorporated into the record.
12. Submission of Insufficient Evidence. In the event a Claimant submits insufficient
evidence regarding any matter, the Hearing Officer shall inform the Claimant what
further evidence is necessary and request that such evidence be submitted within a
specified reasonable time which may, upon request by the Claimant, be extended for good
cause.
406. Governing Law. To provide consistent and uniform application of the Act to all persons filing a claim, the following rules shall apply in rendering decisions on claims:
1. Physical Harm. Claimants suffering physical harm due to the terrorist-related aircraft
crashes of September 11, 2001, shall be entitled to recover full economic and non-
economic loss as follows:
a) Economic loss means any pecuniary loss of a Claimant including but not limited to
loss of earnings or other employment benefits, loss of earning capacity, medical
expense loss, experienced in the past or to be experienced in the future and loss
to a Claimant's surviving spouse and children of services, support, consortium and
affection, and the loss to a minor Claimant's parents of services, support,
companionship and affection, experienced in the past or to be experienced in the
future.
b) Non-economic loss means loss the Claimant due to physical and emotional pain,
suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss
of enjoyment of life, any injury to reputation, and any other losses authorized by
the Act, experienced in the past or to be experienced in the future, including any
aggravation of an existing disease or physical defect.
2. Wrongful Death. Personal representatives of decedents shall be entitled to recover full
economic and non-economic loss resulting from a decedent's death due to the terrorist-
related aircraft crashes of September 11, 2001, as follows:
a) On behalf of a decedent's surviving spouse, decedent's children, children of any
deceased child of the decedent and parents of the decedent, the economic and
non-economic loss each has suffered including all monies the decedent would
have spent or given to each person for such items as shelter, food, clothing,
medical care, education, entertainment, gifts and recreation during the normal life
expectancy of the decedent; the pecuniary value of the services, society and
comfort that the decedent would have provided to each person, including such
elements as work around the home, transportation and Provision of physical
comforts and services; the loss of decedent's companionship and protection and
the survivor's mental pain and suffering as a result of the decedent's injury and
death, suffered in the past and reasonably expected to be suffered in the future.
b) On behalf of any relative by blood or marriage who is dependent upon the
decedent for support or services and any person who resided in the household of
the decedent at the time of the death who was dependent upon the decedent, the
support or services that the decedent would have provided to each such
dependent during the decedent's life expectancy.
c) On behalf of the decedent's estate, the costs of administration of the estate and
any medical, funeral or other last expenses of the decedent; hedonic damages;
the estate's loss of net accumulations, which is that part of the decedent's net
income after taxes, including pension benefits, which the decedent, after paying
his personal expenses and monies for the support of his survivors, would have left
as part of the estate if he had lived his normal life expectancy; and compensation
for any conscious mental pain and suffering suffered by the decedent as a result
of the terrorist acts until the time of the decedent's death.
3. Claimants shall be entitled to recover as damages the reasonable and fair costs of
presenting their claims to the Fund and their evidence at any hearing.
407. Prestimptions. Presumptions shall be rebuttable upon proof that the fact is different than the
presumed fact. Unless the Hearings Officer finds that a preponderance of the evidence shows a fact to
be different, the following presumptions shall apply to determining claims:
1 . It shall be presumed that the life expectancy of an individual is as set forth in the Life
Tables, Vital Statistics of the United States 1998, published by the National Center of
Health Statistics, U.S. Department of Health and Human Services.
2. In the absence of any expert evidence to the contrary, it shall be presumed that the
work-life expectancy of an individual is 65 years.
3. In the absence of any expert evidence to the contrary, it shall be presumed that the loss
earnings of a decedent is the sum of the last 12 months of a decedent's earnings times
the remaining work life expectancy of the decedent.
408. Decisions.
1. Form and Contents of Decisions. Claim decisions shall be in writing and shall contain
the names of the parties, the names of all beneficiaries of the decision, any finding of
fact or conclusion of law, the damage due each claimant or beneficiary of a claim and
any amounts being deducted as a collateral source, together with the reasons therefore.
Decisions shall be based on the record before the Hearing Officer.
2. Issuance of Decision. All decisions shall be made not later than 10 days after the
termination of the hearing and must be promptly furnished to the Claimant and any
attorney representative by the quickest means practical. Upon request or agreement of
the Claimant, the hearing can be continued to a time certain.
3. Deduction of Collateral Sources. After determination of the damages due any
Claimant or beneficiary of a claim, the Hearing Officer shall determine whether any
collateral sources are applicable to the determined damages and deduct from said
damages the net present value of the collateral source (after reduction for any cost to
the claimant or beneficiary). Except for life insurance, collateral sources which do not
duplicate any item of economic loss should not be deducted. As to any collateral source
as to which there is a right of subrogation, said amounts shall not be deducted from the
determined damages.
4. Review of Hearing Officer Decisions. Within ten days of the date of a decision the
Claimant may request review of the decision by the Special Master. Such a request
must be accompanied by a written extension of applicable time limits to allow a
reasonable time for review. The review shall be conducted by the Special Master
based on the record before the Hearing Officer.
a) A decision of the Hearing Officer that is not supported by substantial evidence,
that incorrectly applies the law or these regulations or that is otherwise contrary
to the law shall be reversed and remanded for further proceeding.
b) In the event a claim is remanded for further review, the decision shall be
entered not later than 120 days from the date of remand.
c) There shall be no further review.
5. Authority to Compromise and Settle. The Special Master or his or her designee is
delegated authority to enter into a compromise or settlement of any claim under the
Act either before or after a decision has been made.
409. Payment of Benefits.
1. Payees. Benefits shall be paid, as appropriate, to each beneficiary of a claim as set
forth in the decision. The benefits may be paid directly to a Claimant or beneficiary or
to a revocable living trust created by the Claimant or on behalf of a beneficiary, or, at
the direction of a court, to a trust described in 42 U.S.C. § 1496p(d)(4)(A). A Hearing
Officer may require that a legal guardian or representative be appointed to receive
payment on behalf of any minor child or person who is mentally incompetent.
2. Subrogation Liens Barred. There shall be no right of subrogation on behalf of a
collateral source payee that is deducted from a Claimant's award. To the extent that
any state or federal law allows a lien to be placed or filed on behalf of any collateral
source payor, such a lien is barred. If there is a determination under applicable law that
a collateral source payor has the right to a lien and subrogation against a claim under
the Act, then any amounts paid or payable from said payor shall not be deemed a
"collateral source" under the Act.
3. Periodic Payments. At the election of any Claimant or beneficiary, amounts payable to
said Claimant or beneficiary pursuant to a decision under the Act may be received as a
periodic payment described in 26 U.S.C. § 104(a)(2), funded by an annuity the cost of
which shall be such amount. Any such election shall be made by Providing riotice
thereof to the Hearing Officer prior to the date of the decision. If an amount is payable
in periodic payments funded by an annuity, then the Special Master may transfer, in a
qualified assignment, the obligation to make such periodic payments, See 26 U.S.C, § 130. The claimant or beneficiary shall provide to the Special Master or the Hearing
Officer, within 60 days following issuance of the written notice under section 405(b)(3),
the name of the assignee to whom a qualified assignment is to be made and the
documents required to make the qualified assignment in a form acceptable to the
Special Master.
4. Tax Treatment of Amounts Paid From The Fund. Amounts paid from the Fund to, or on
behalf of, Claimants or beneficiaries upon a decision under the Act are compensation
(other than punitive damages) paid on account of personal injury or sickness, in a case
involving physical injury. For United Statcs federal income tax purposes, such amounts
are excludable from the gross income of the recipients. See 26 U.S.C § 104(a)(2).
6. Reports to Congress. The Attomev General shall report annually to the Committee on
the Judiciary of the U.S. House of Representatives and the Senate on claims paid under
the Act, stating the name of each Claimant, beneficiary and the amount awarded.
410. Privacy Policy.
a) The Special Master shall adopt and enforce a Privacy policy consistent with
Department of Justice privacy policy to ensure that any documents, testimony,
reports or other information utilized during the claim process are afforded protection
against improper disclosure.
b) The Special Master shall prominently display its privacy polioy on the claim form
and on all official publications that provide information concerning the claim
process.
c) The Special Master shall prominently display its privacy policy on the website.
411. Notice of Program to Potential Litigants. The Department of Justice shall monitor the
federal civil court docket for actions brought by victims in connection with the September 11th airline
crashes and inform the Special Master of any claims that have been brought or are brought within 90
days after the date on which these regulations are promulgated. When the Special Master receives this
information, it shall immediately notify any and all plaintiffs, by first class mail, of their rights to claim
benefits under the program if they withdraw from such action within 90 days after the date on which
these regulations are promulgated.
1. Public Notice of Program. The Special Master shall immediately develop and
implement a comprehensive program to inform the public about the Victim
Compensation Fund and their rights thereto.
In developing and implementing this program, the Special Master shall produce printed
informational material for the use of potential Claimants. This informational material
will explain to the public their rights to compensation under the program and will inform
persons as to the procedures necessary to file a claim. The informational material shall
also inform potential claimants of any available pro bono programs.
The Special Master shall send written notice immediately to all persons and/or the
families of persons identified as injured, missing or dead by the Attorney General as a
result of the September 11, 2001 airline crashes. This notice shall inform persons as to
their rights to compensation under the Fund and inform persons as to the procedures
necessary to file a claim. The Special Master shall send to each of these persons
copies of all informational materials on the program immediately upon availability.
The Special Master shall move immediately to establish a " 1-800" telephone number
and website to receive requests from potential Claimants for informational material and
claim forms.
The Special Master shall purchase sufficient advertising in both print and media in the
New York, New Jersey, Boston, Los Angeles, Chicago, Dallas and Washington, D.C.
media markets to inform the public about the availability of compensation and the
process for filing a claim.
The Special Master shall take whatever additional steps it deems appropriate to
publicize the availability of compensation for eligible Claimants.