Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. November 1, 2001 Dear Acting Associate Attorney General Perry: We submit this letter to set forth the comments of the State of New York and the City of New York on the recently enacted Air Transportation Safety and System Stabilization Act ("ATSSSA") and, specifically, the provisions establishing procedures and standards for compensating victims who suffered injury or death as a result of the September 11th terrorist attacks. As you undoubtedly appreciate, New Yorkers and other injured in New York as a result of the terrorist attacks at the World Trade Center constitute the vast majority of those harmed on September 11th. To be an effective and meaningful vehicle for victim compensation, the ATSSSA must be interpreted and administered in a manner that gives full force to Congress' clear statement of the purpose of ATSSSA, which is "to provide compensation to any individual (or relatives of a deceased individual) who was physically injured or killed as a result of the terrorist-related aircraft crashes of September 11, 2001." §403. The attached memorandum sets forth our comments and recommendations in detail. As you will see, based upon the language of the statute and the intent of Congress, we recommend that the regulations: * provide that all individuals in New York City physically harmed by the airline crashes, the collapse of the World Trade Center, or the smoke and debris resulting from those events are eligible to submit claims for compensation; * ensure that the individuals working to extinguish the ongoing fires, clear debris, and recover remains, including the police officers, firefighters, construction workers and other emergency personnel who have been injured during this difficult effort, are not excluded from the claims process: * make clear that individuals who suffered any physical harm are able to file claims; * define the "personal representative" of the decedent who may file a claim according to state estate law; * provide that a victim's compensation include any pecuniary losses specifically enumerated in the statute, as well as any other compensable under state law; and * make clear that a claimant's compensation may be reduced only by the amount of the collateral source compensation the claimant is legally entitled to receive as a result of the terrorist-related aircraft crashes of September 11, 2001. The issue of collateral source compensation is of particular importance. ATSSSA defines the term "collateral source" as "all collateral sources, including life insurance, pension funds, death benefit programs, and payments by Federal, State, or local governments related to the terrorist-related aircraft crashes of September 11, 2001." §403(4). As the attached memorandum makes clear, statutory language, the intent of Congress, analogous provisions of New York State law, and public policy all point to a definition of "collateral source" that includes only legally-required monetary payments, and not assistance from family and friends, charitable contributions in-kind benefits, or payments contingent upon future events. Finally, we offer various suggestions for the claims form and the rules for submission of evidence. For example, while documentation should be required for establishing medical expenses, it should not be required to demonstrate physical harm, because many individuals who were physically harmed either did not seek medical attention or received medical care at a triage location where no documentation was kept. Liberal procedures should permit claimants to present newly discovered evidence of harm or other losses(e.g., latent injuries or future medical expenses). Thank you for considering our views on this important matter. If you have questions regarding any of the issues discussed in this letter or the attached memorandum, please feel free to contact Counsel to the Governor James McGuire, Deputy Attorney General Debra Cohn or Deputy Counsel to the Mayor Larry Levy. We look forward to working with you to serve all the victims of the September 11th terrorist attacks. Sincerely, Comments by: James McGuire, Counsel to Governor George Pataki David Nocenti, Counsel to Attorney General Eliot Spitzer Dennison Young, Jr., Counsel to Mayor Rudolph Giuliani Attachment 1 COMMENTS OF THE STATE OF NEW YORK AND THE CITY OF NEW YORK ON THE AIR TRANSPORTATION SAFETY AND SYSTEM STABILIZATION ACT This memorandum sets forth the comments of the State of New York and the City of New York on the recently enacted Air Transportation Safety and System Stabilization Act ("ATSSSA"). In particular, the memorandum comments on ATSSSA's procedures and standards for compensating victims who suffered injury or death as a result of the September 11th terrorist attacks. Title IV of ATSSSA, which is the "September 11th Victim Compensation Fund of 2001," establishes two vehicles for victims to obtain compensation: 1) a claims process administered by the Attorney General, acting through a Special Master; and 2) a federal cause of action with exclusive jurisdiction in the Southern District of New York. This memorandum concerns the former, the administrative claims process. ATSSSA states that "the purpose of this title [is] to provide compensation to any individual (or relatives of a deceased individual) who was physically injured or killed as a result of the terrorist-related aircraft crashes of September 11, 2001." §403 (emphasis added). New Yorkers and others injured in New York as a result of the terrorist attacks at the World Trade Center constitute the vast majority of those harmed and the regulations issued by the Department of Justice must fulfill the intent of Congress by ensuring that full compensation is provided to all such victims. I. POTENTIAL CLAIMANTS. A. INDIVIDUAL VICTIMS. The ATSSSA defines individuals who are eligible to file a claim with the Special Master as: (A) an individual who- (i) was present at the World Trade Center, (New York, New York), the Pentagon (Arlington, Virginia), or the site of the aircraft crash at Shanksville, Pennsylvania at the time, or in the immediate aftermath, of the terrorist-related aircraft crashes of September 11, 2001; and (ii) suffered physical harm or death as a result of such an air crash; (B) an individual who was a member of the flight crew or a passenger on [the aircrafts subject to terrorist-related crashes on September 11, 2001;] or (C) in the case of a decedent who is an individual described in subparagraph (A) or (B), the personal representative of the decedent who files a claim on behalf o the decedent. Sec. 405(c)(2) Thus, certain terms are critical to determining the eligible claimants: 1) "was present at the World Trade Center, New York, New York," §405(c)(2)(A); 2)"the immediate aftermath" id.; 3) "suffered physical harm" §§405(a)(2)(B)(i), 405(c)(2)(A); and 4)"personal representative of the decedent," §405(c)(2)(C). This memorandum discusses each in turn. The proposed definitions and standards set forth below aim to fulfill the congressional purpose of compensating all the victims. Where appropriate, references to New York law are provided. The proposals also draw on definitions, standards, and procedures used by federal, state, and local government agencies to identify and provide services to the victims of the World Trade Center tragedy. Finally, several other goals helped shape the proposed definitions: equity among victims; administrative ease; and discouraging fraud and abuse. 1. "Present at the World Trade Center, New York, New York" The phrase "present at the World Trade Center, New York New York" should be defined to cover al individuals in New York City harmed by the airline crashes, the collapse of the World Trade Center, or the smoke and debris resulting from those events. The vast majority of those victims were located in Manhattan south of 14th Street, but the regulations should ensure that individuals outside that area, who also were physically harmed, are allowed to file claims. The federal, state, and local governments already recognize that the effects of the World Trade Center attacks extended beyond the narrow confines of the twin tower complex. On September 13, 2001, President Bush signed a disaster declaration, making individuals in all five counties in New York City eligible for assistance. On September 11, New York City Police Department closed all streets in Manhattan south of 14th Street. Debris was found in parts of Brooklyn and Queens. For several days following the attack, the "red zone" restricted area included all of Manhattan south of 14th Street. Even now, more than a month after the crashes, the restricted area exceeds a 16 acre zone. FEMA's Mapping and Analysis Center (MAC) received remote sensing data on the days after the attacks, indicating that areas affected by the disaster were far-reaching. The available information documents that the ash and debris traveled across all of downtown Manhattan. A photograph of lower Manhattan taken on September 12, 2001, shows that, even 24 hours later, the ash and debris continued to travel north of Chambers Street and across the East River into Brooklyn. Defining "present at the World Trade Center, New York, New York," as covering all individuals who were in New York City who were harmed by the airline crashes, the collapse of the World Trade Center, or the smoke and debris resulting from those events, would ensure that all individuals who were physically harmed as a result of the crashes of September 11, can file claims, while offering administrative ease to the Department of Justice. An alternative definition would frustrate congressional purpose and consign victims physically harmed by the terrorist attacks to an uncertain future by being forced to litigate in the Southern District of New York. 2. "At the Time, or the Immediate Aftermath" The World Trade Center disaster response is still continuing. Although most of the areas in Manhattan outside the "red zone" have been cleared of debris, the "red zone" itself remains an active disaster site, with fires still burning, and the search for bodies continuing. Just as a forest fire does not end the moment it is lit, but continues until the fire is extinguished, so too does the World Trade Center disaster. Undoubtedly, Congress intended that the firefighters, police officers and other emergency and construction workers who continue to work at the site should be covered by the victim compensation scheme. In light of the congressional intent, and the Presidential disaster declaration, the phrase "at the time or the immediate aftermath" should be defined to continue until the fires have been extinguished, the debris cleared, and a determination has been made that no other bodies remain at the site. 3. "Suffered Physical Harm" ATSSSA provides that a person is eligible under the statute if he or she meets the "present at" requirement and suffered "physical harm" or death as a result of one of the crashes. §405 (c)(2)(a)(ii). The regulations, therefore, should make clear that an otherwise eligible person may apply for an award as long as he or she can show any physical harm. This is consistent with the purpose of the statute, which is to compensate "any individual" who was physically injured or killed as a result of the aircraft crashes of September 11, 2001. §403. Neither the statement of purpose nor the eligibility language requires that the injury or harm be "serious" or otherwise meet an arbitrary threshold. Cf. 29 U.S.C. §654(a)(l) (OSHA imposes duty on employer to provide working environment free from hazards likely to cause death or "serious physical harm"; 30 U.S.C. §1291(8) (Surface Mining Control and Reclamation Act of 1977 addresses condition which could reasonably be expected to cause "substantial physical harm" to persons outside permit area); 42 U.S.C.§14952 (b)(1)(Secretary of State may waive laws governing intercountry adoptions to prevent "grave physical harm" to child); N.Y. Ins. Law §§5102, 5104 (person injured in automobile accident can bring pain and suffering claim only if he suffered "serious injury"); Oberly v. Bangs Ambulance, Inc., 96 N.Y. 2d 295 (2001)(No- Fault Law requires "serious injury" before injured party may bring tort action for noneconomic loss, pain and suffering). Although victims who suffered any physical harm should be allowed to file a claim, the amount of the award, of course, will depend upon the extent of the harm to the claimant. §§405(b)(1)(B)(i) and (ii). B. "PERSONAL REPRESENTATIVE" OF INDIVIDUAL VICTIMS. "Personal representative" should be defined according to applicable state law. The New York Estates, Powers, and Trusts Law ("EPTL") defines a "personal representative" as "a person who received letters to administrate the estate of a decdent". EPTL §1-2.13. A person who receives letters to administrate a decedent's estate must be either a "distributee" (a decedent's adopted or biological relative) if the person died without a will, a person named as executor or executrix if decedent had executed a will, the public administrator (if decedent dies without known relatives or a will), or a person appointed by the court as temporary administrator. EPTL §§4-1.1; 5-4.1; 5-4.5; N.Y. Surr. Ct. Proc. Act. §1001. Letters of administration must be granted to persons who are distributees of a person who died without a will in the following order: surviving spouse; children; grandchildren; parents; siblings; and then any other persons who are distributees.. N.Y. Surr. Ct. Proc. Act §1001. The distributees also may consent, if unanimous, to appointment of a non- distributee. Id. §§ 1001. 1002. A personal representative of a deceased may bring a wrongful death action on behalf of the distributee of the deceased to recover the pecuniary damages suffered by the distributee as a result of the decedent's death, EPTL §5-4.1; see EPTL §§4-1.1,5-4.5, or an action to recover for injuries, including conscious pain and suffering, suffered by the decedent prior to his death EPTL §11-3.1. The damages recovered in a wrongful death action are to be distributed by the personal representatives to the relatives of the deceased as specified in EPTL §§4-1.1, 5-4.4(a) and 5-4.5, without going through the estate, and in proportion to the pecuniary injuries suffered by each of them. EPTL §5-4.4(a)(l). II. AMOUNT OF COMPENSATION. The ATSSSA provides that "the amount of compensation is based on the harm to the claimant, the facts of the claim, and the individual circumstances of the claim." §405(b)(ii). The Special Master will determine the extent of the harm to the claimant, including any economic and noneconomic losses. §405(b)(1)(B)(i) A. ECONOMIC LOSSES. ATSSSA defines the term "economic loss" to mean: any pecuniary loss resulting from harm (including the loss of earnings or other benefits related to employment, medical expense loss, replacement services loss, loss due to death, burial costs, and loss of business or employment opportunities) to the extent recovery for such loss is allowed under applicable State law. §402(5). The state law applicable to the victims harmed in New York will in most instances be New York law. See generally Babcock v, Jackson, 12 N.Y. 2d473 (1963). New York law allows all the types of economic loss enumerated in ATSSSA. Consistent with ATSSSA's purpose - - "to provide compensation to any individual (or relatives of a deceased individual) who was physically injured or killed as a result of the terriorist- related aircraft crashes of September 11, 2001" - ATSSSA and New York law in a wrongful death action allow for recovery of all pecuniary losses resulting from the decedent's death. See EPTL § 5-4.3 (damages in wrongful death action consist of fair and just compensation for "pecuniary injuries" suffered by distributees of decedent including but not limited to medical, nursing and attention expenses, funeral expenses); Loetsch v. New York City Omnibus Corp., 291 N.Y. 308 (1943) (pecuniary losses include loss of financial support); EPTL §5-4.3, Practice Commentaries (pecuniary losses Attachment 2 Wasau Business Insurance Companya/s/o Central Synagogue v. Turner Construction Co., et al., No. 99 CIV 0862 (RWS)(amicus brief) Attachment 3 New York Crime Victims Board Website September 11 Email: Date The local time and date when the message was written. 2001-11-01 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojW000749.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-01