dojA002032.xml

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born-digital

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2001-12-15

Saturday, December 15, 2001 5:27 PM
Rulemaking under 28CFR, Part 104


I understand from various media accounts and from the DOJ statement issued
below that the DOJ is seeking comments on various aspects regarding the
application of the Victim Compensation Act of 2001.

My comments are limited to the question regarding the determination of
eligibility for "spouses" and others. I am an elected official in Charlotte,
North Carolina.

North Carolina law (as the law of some 15 other States) makes certain acts
and behaviors illegal (NCGS 14-177). North Carolina law also prohibits the
teaching of homosexual conduct as acceptable without full disclosure of the
illegality of the acts and the medical risks associated with it (NCGS
115C-81). These laws have been upheld by the US Supreme Court in 1987 in
"Bowers V. Hardwick" and in the NC Supreme Court in a case called "Pulliam
V. Smith" (1998). In addition, Federal law limits the number of covered
classes covered by Federal Civil rights laws to Race, Creed, Sex, Ethnic &
National Origin. "Sexual orientation" is excluded by failing to receive an
adequate number of votes in Congress to support such a change in the law.
Unmarried heterosexuals have consistently been rejected as a covered class
as well.

I would encourage your office to limit the applicability of this new law to
EXISTING standards and to reject expansion of and payment of benefits to
those that claim to be "spouses" or relatives but whom do not have the legal
standing to file such a claim.

Clearly, the terrorist attack is deplorable but it should not be used
administratively make new law when Congress could have specifically include
such additional classes of qualified individuals and has refused to date to
do so. Spousal benefits should go only to those that are "spouses" by LAW
and not individuals who the law purposely excludes from this covenant or
those, by their actions, that choose to exclude themselves.

Specifically, individuals who cohabitate together (whether homosexual or
heterosexual) should not be eligible for benefits as though they were
lawfully married.

To do otherwise is to ignore the existing will of Congress and the opinions
of voters in a number of States who reject such notions and do not believe
they should be established as law. It also would diminish the societal value
of marriage and effectively expand its definitions to include those other
than the legal def. of "one man and one woman joined in Holy Matrimony".

If individuals who are "not married" can receive spousal benefits it
diminishes the exclusivity of marriage in society something that your office
should not attempt to do by fiat.

It also ignored the laws of the State of North Carolina that reject such
activity as acceptable.

Regards,
Individual Comment

BILLING CODE:
DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 104
CIV 104P; AG Order No.
RIN: 1105-AA79
September 11th Victim Compensation Fund of 2001

AGENCY: Civil Division, Justice.

ACTION: Notice of Inquiry and Advance Notice of Rulemaking

SUMMARY: Shortly after the September 11, 2001 terrorist attack, the
President signed legislation authorizing compensation to any individual (or
the personal representative of a deceased individual) who was physically
injured or killed as a result of the terrorist-related aircraft crashes on
that day. This Notice of Inquiry and Advance Notice of Rulemaking seeks
public comment on a range of matters critical to implementing a program that
will carry out the intent of the legislation of providing compensation to
victims.

DATES: Comments in response to this notice are due by November 26, 2001.

ADDRESSES: Comments should be submitted by e-mail to:
victimcomp.comments@usdoj.gov, or by telefax to 301-519-5956. Telefaxes
should be limited to 15 pages. Comments may also be mailed to Kenneth L.
Zwick, Director, Office of Management Programs, Civil Division, U.S.
Department of Justice, Main Building, Room 3140, 950 Pennsylvania Avenue NW,
Washington, DC 20530. However, in view of the short time period for comments
and the current delays in the delivery of mail, it is strongly recommended
that comments be submitted by e-mail or telefax. Comments received are
public records. The name and address of the commenter should be included
with all submissions. The text of comments, along with the name and address
of the commenter, will be available on the Victim Compensation Fund web
site, www.usdoj.gov/victimcompensation. Comments will also be available for
public inspection at a reading room in Washington, DC. Arrangements to visit
the reading room must be made in advance by calling 888-714-3385 (TDD:
888-560-0844).

FOR FURTHER INFORMATION CONTACT: Kenneth L. Zwick, Director, Office of
Management Programs, Civil Division, U.S. Department of Justice, Main
Building, Room 3140, 950 Pennsylvania Avenue NW, Washington, DC 20530,
telephone 888-714-3385 (TDD 888-560-0844).

SUPPLEMENTARY INFORMATION:

Background.

The President signed the ?September 11 Victim Compensation Fund of 2001"
(the "Fund") into law on September 22, 2001, as Title IV of Public Law
107-42, 115 Stat. 230 ("Air Transportation Safety and System Stabilization
Act") (the "Act"). The purpose of the Fund is to provide compensation to
eligible individuals who were physically injured as a result of the
terrorist-related aircraft crashes of September 11, 2001, and compensation
through a ?personal representative? for those who were killed as a result of
the crashes. Generally, eligibility extends to those who suffered physical
harm or death as a result of the September 11 air crashes, which would
include individuals on the planes at the time of the crashes (other than the
terrorists) and individuals present at the World Trade Center, the Pentagon,
or the site of the crash inPennsylvania at the time of the crashes, as well
as those present in the immediate aftermath of the crashes.

The Attorney General, acting through a Special Master appointed by the
Attorney General, is responsible for the administration of the Fund. By law,
regulations addressing certain administrative matters must be issued within
90 days of enactment (i.e. by December 21, 2001). Section 407 of the Act
provides that the Attorney General, in consultation with the Special Master,
promulgate regulations on four matters by December 21, 2001:

(1) forms to be used in submitting claims;

(2) the information to be included in such forms;

(3) procedures for hearing and the presentation of evidence; and

(4) procedures to assist an individual in filing and pursuing claims.

In addition, section 407 authorizes the Attorney General to issue additional
rules to implement the program.

After determining whether an individual is an eligible claimant under the
Act and applicable regulations, the Special Master is to determine the
extent of harm to the claimant and determine the amount of compensation to
be awarded based on ?the harm to the claimant, the facts of the claim, and
the individual circumstances of the claimant.? Section 405(b)(1)(B)(i). The
law also provides that the Special Master is to make a final determination
on any claim within 120 days of its receipt and, if an award is made, to
authorize payment within 20 days thereafter. Sections 405(b)(3), 406(a). The
determinations of the Special Master are final and are not subject to
judicial review. Section 405(b)(3).

The Fund is designed to provide a no-fault alternative to tort litigation
for individualswho were physically injured or killed as a result of the
aircraft highjackings and crashes on September 11, 2001. Individuals who may
have suffered other kinds of losses as a result of those events (e.g., those
without identifiable physical injuries but who lost employment) are not
included in this special program. However, the Act provides that a claimant
who files for compensation must, at the time of filing, waive any right to
file a civil action (or to be a party to an action) in any federal or state
court for damages sustained as a result of the terrorist-related aircraft
crashes of September 11, 2001.

Claims with the Fund must be filed within two years after the initial
regulations are promulgated. Payments from the Fund are made by the United
States government, which in turn obtains the right of subrogation to each
award.

General approach to regulations that must be promulgated by December 21,
2001.

a) The purpose of this notice.

As noted above, the Act requires that the Attorney General promulgate
regulations in consultation with the Special Master. The Department is
currently considering potential candidates for the Special Master position.
In addition, the Department is in the process of seeking information from
state and local agencies, as well as many other sources, that may be useful
in crafting proposed regulations. In the meantime, however, the Department
believes that it is very important, to the extent feasible within the time
frames involved, to involve the public in the development of any rules
established under the program ? including, but not limited to, potential
beneficiaries of the program, their employers, the legal community, and all
those who have come forward to help those impacted. For this reason, the
Department has decided to issue this notice to obtain as much public comment
as feasible before issuing the rules that it isrequired to promulgate by
December 21, 2001. This notice describes the issues involved, identifies
possible courses of action, and invites comment on a number of points. At
various points the Department solicits views on interpretations or
applications of the Act. Although the Department welcomes comments, it is
ultimately the Department?s responsibility to interpret and apply the Act.

b) The Department?s plan to issue implementing regulations by December 21,
2001 as ?interim final? rules.

Although the Attorney General, in consultation with the Special Master, is
to issue certain implementing rules by December 21, 2001, the law does not
specifically define how such rules must be issued. The Department welcomes
comments on these procedural issues.

The Department is considering promulgating the initial rules on December 21,
2001 as ?interim final? rules. ?Interim final? rules are ?final? rules that
can be relied upon (and challenged) under the law, but that also become the
subject of a new round of immediate comment and review ? essentially, asking
the public for comment on whether the newly-adopted rules should be amended.
The Department wishes to begin processing claims as soon as possible. This
procedural methodology should permit the program to commence operations as
soon as practicable.

c) How to comment in response to this notice.

There are a number of issues presented in this notice, and 21 days are
provided for comment. The Department has only a limited time to evaluate the
information received in response to this notice. Accordingly, the Department
would appreciate comments that are transmitted as soon as possible and in a
form that is as succinct as possible. As indicated at thebeginning of this
notice, we encourage commenters to use e-mail and telefax for this purpose.

Although the Department will endeavor to review every submission it receives
in response to this notice, from handwritten letters to copies of scholarly
articles and books, it reserves the right under the circumstances to set
aside any information that it lacks the time to consider before the
Department must make its determination, even if that information is received
before the end of the comment period. The Department urges commenters to
submit materials as early within the comment period as possible.

If the Department cannot fully consider all the comments it receives before
it must act, the comments will be retained by the Department for subsequent
consideration as appropriate. As discussed above, the Department
contemplates providing another opportunity for notice and comment after the
initial rules are issued in December; any information submitted to the
Department in response to this notice that cannot be reviewed before the
December rules are issued will be considered during the subsequent review.
Similarly, to the extent that any issues addressed in the comments are not
addressed in this initial regulatory action, those comments will be retained
by the Special Master for appropriate consideration as the program is
implemented.

d) Will there also be meetings and hearings to gather information before
December 21, 2001?

The Department has received many requests for meetings from individuals and
groups who wish to provide input on these rules. And it is likely that the
Department will wish to initiate such meetings on its own as well. The
Department will endeavor to accommodate any such requests as best it can
given the available time and any applicable legal requirements.

As a matter of general policy, the Department has declined to take a
position prohibiting so-called ?ex parte communications? in informal
rulemaking proceedings. 28 CFR 50.17. Such a prohibition would inhibit the
ability of the Department to obtain valuable information, and would be
inconsistent with the nature of informal rulemaking under 5 U.S.C. 553 (as
contrasted with so-called ?formal? rulemaking under 5 U.S.C. 554, which is
handled in a quasi-judicial manner). Consistent with the policy set forth in
28 CFR 50.17, the Department will endeavor to make notes on any relevant
meetings or other communications part of the public record.

e) The effective date of the rules to be promulgated on December 21, 2001.

The law generally provides that rules not go into effect for at least 30
days after promulgation absent ?good cause? to waive this requirement. 5
U.S.C. 533(d). The Department is seeking comment on an appropriate effective
date for these rules, including whether ?good cause? exists under 5 U.S.C.
533(d) to waive the 30-day requirement. In ideal circumstances, the
Department would prefer not to waive the APA=s requirements for at least a
30-day delay in the effective date for rules. Given the circumstances here,
however, it seems likely that there may be good cause for taking such
action. The Department welcomes comments on this issue and on other
alternatives. For example, a 30-day effective date delay might not
significantly hinder implementation of the program and would provide time
for some initial counseling and other information dissemination prior to the
filing of any claims.

f) Issues relating to the rules to be promulgated by December 21, 2001.

The Department welcomes comment on whether the rules that must be issued by
December 21, 2001, should, pursuant to section 407(5), cover matters in
addition to those specifically identified in section 407(1)-(4) of the Act.
One reason for making the set ofregulations to be published in December as
comprehensive as possible is the possibility that there are some potential
claimants who have already filed or will soon be filing civil actions
seeking damages arising out of the September 11 incidents. Section
405(c)(3)(B)(ii) of the Act provides that, if an individual is already a
party to a civil action when the regulations enumerated in section 407 are
promulgated, the individual cannot submit a compensation claim under this
federal program unless he or she withdraws from the legal action within 90
days from the date the rules are promulgated. Without having information
about how the compensation program works, such individuals might not be able
to assess whether the compensation program is a viable alternative to
continuing their litigation.

The Department believes that the number of individuals who already have
filed a civil claim, or who have irrevocably committed to doing so in the
next few months, may well be very small. The Department would welcome
information on this point. The Department also would welcome comment as to
whether the statutory requirement that a claimant ?withdraw[]? from such
action by 90 days after the date the initial rules are promulgated was
intended to preclude such a claimant from refiling or rejoining a civil
action: a) should the claimant ultimately elect not to file a compensation
claim under the federal program; or b) if the claimant is determined by the
Special Master not to be eligible to file a claim.

In short, potential claimants have an interest in knowing as soon as
possible how the program is likely to operate in their circumstances.
Litigation to obtain damages, particularly in a mass tort context, can be a
lengthy, uncertain, and complex process, filled with substantial risk and
expense. The purpose of this compensation program is to offer all potential
claimants a more expeditious, predictable, and less complex alternative to
that process. The Departmentrecognizes that unless and until it can provide
some certainty as to how the compensation award program will work, some
claimants may be reluctant to commit themselves to the Fund as an
alternative to tort awards.

We now turn to a set of specific topics on which comment is solicited. The
first four topics concern the Department?s obligations under section
407(1)-(4) of the Act. The remainder discuss key issues that may also be the
subject of regulatory action.

Topics #1 & 2: The forms to be used in submitting claims under this program
and the information to be included on the claims form.

Section 405(a) of the statute establishes some specific requirements with
respect to the claims form and the information to be included. The law
requires the Special Master to develop a claims form to use in filing claims
for compensation under this program. The Special Master is to ensure that
the form can be filed electronically if practicable.

The form must include a statement of the factual bases for eligibility and
for the amount of compensation sought. In addition, the form is to request
information from the claimant as to: 1) the physical harm suffered by a
victim, or information confirming the death of the victim, of the
terrorist-related aircraft crashes of September 11, 2001; 2) any possible
economic and noneconomic losses that the claimant suffered as a result of
the crashes; and 3) any collateral sources of compensation the claimant has
received or is entitled to receive as a result of such crashes.

It would appear that these requirements, combined with the statutory time
frame for the Special Master to reach a decision once a claim is filed,
contemplate a detailed form and filing, including submission by the claimant
of supporting documents and relevant medical records. Accordingly, the
Department invites comment on whether the Special Master should determine
that a claim has not been ?filed? in those circumstances in which the
Special Master determines that there is insufficient information submitted
to permit a reasonably informed determination to be made. Along similar
lines, the Department invites comments on whether there are actions the
Special Master should be required to take before he or she can accept a
claim, or deem a claim ?filed.?

The Department welcomes comment on the design and content of the claims
forms in light of the statutory requirements. Specific comments on making
the form and its instructions readable and readily available are welcome.

Topic #3: Procedures for hearing and the presentation of evidence.

Section 405(b)(4) provides that a claimant has the right, after the filing
of the claim, to present evidence to the office of the Special Master. The
statute specifically provides that the claimant has the right to present
witness statements and documents, the right to be represented by an
attorney, and such other due process rights as are determined to be
appropriate by the Special Master.

The Department solicits comments on the procedures to be used in taking and
evaluating such evidence. In formulating comments, commenters should keep in
mind that the Act gives the Special Master a very limited time to evaluate
such evidence before making a decision: Section 405(b)(3) of the statute
provides that the Special Master must make final decisions on claims within
120 days of the date of filing. Comments as to whether the statute permits
the Special Master to temporarily halt or toll the running of this clock, at
the initiative of the claimant or otherwise, are welcomed. In addition, the
Department invites comment on whether the SpecialMaster should be permitted
to dismiss a claim as not properly filed for lack of adequate supporting
information and, if so, whether an individual should thereafter be permitted
to refile the claim.

Among other matters, the Department welcomes comment on whether every
claimant should be granted an oral hearing or whether paper hearings may be
sufficient, and comments on what types of oral hearing may be practicable,
consistent with the statutory deadlines. If oral hearings are provided,
should the Special Master always use ?hearing officers? to hear witnesses
and review written evidence? What qualifications and training should those
who perform such tasks have? In addition, the Department welcomes comment on
whether there are other specific duties and powers that should be delegated
to hearing officers (e.g., to ask questions of the claimant or witnesses, to
request submissions of such further information as the hearing officer may
deem valuable in reaching a decision, and/or to prepare recommended
decisions for the consideration of the Special Master).

The Department welcomes comment on whether claimants should have the
opportunity to appeal directly to the Special Master specific ?rulings? or
?working decisions? of a hearing officer on questions that arise in the
course of his or her evaluation of the claim. The Department also seeks
comment on whether it is authorized to enforce requests made by the hearing
officer to third parties for evidence that is necessary to a proceeding ?
e.g., evidence that might bear on whether all aspects of the claim file on
which the decision will be based are accurate and complete. The Department
also welcomes comment on whether such proceedings should be recorded,
whether such proceedings must be held in a location convenient to the
claimant and how to deal with scheduling conflicts, and whether the
opportunity for a hearing can be waivedby a claimant through inaction or
unwarranted delay.

The Department particularly welcomes comments that reference the practices
or experience of existing compensation programs with respect to the hearing
of evidence.

Topic #4: Procedures to assist an individual in filing and pursuing claims
under this title.

The statute does not provide guidance on what actions the Special Master is
to take to assist claimants in filing and pursuing claims. However, the
Department believes that it is important that claimants be able to proceed
without economic experts. Accordingly, the Department welcomes any and all
suggestions as to how it can assist claimants, including suggestions for
office locations, toll-free phone lines, outreach meetings, and newsletters.

In addition, the Department welcomes comments on whether the Special Master
has the authority to limit the types and amounts of fees that can be charged
by legal counsel, accountants, experts or others who are retained by
claimants to assist them in filing and pursuing compensation claims, and
whether such fees can and should be paid by the Special Master directly out
of compensation awards. The Department welcomes information about practices
in this regard with respect to other federal compensation programs, and
welcomes specific suggestions on any appropriate fee schedule or policy. The
Department also welcomes comments on what limitations, if any, the rules
should impose on non-attorney, non-claimant representatives' participation
in filing claims and in subsequent proceedings.

The Department is also interested in comments as to whether it needs to take
any actions to ensure that individuals who have the option of filing a
compensation claim with this programare not improperly solicited or
influenced by those with an interest in having them make such an election.

Topic #5: Claimant Eligibility.

Section 405(b) of the statute requires the Special Master to determine
whether a claimant is an ?eligible individual? under section 405(c).
?Eligibility,? in turn, is defined to include: (i) victims (other than the
terrorists) aboard American Airlines flights 11 and 77 and United Airlines
flights 93 and 175; or (ii) victims who were ?present at? the World Trade
Center, the Pentagon, or the site of the aircraft crash at Shanksville,
Pennsylvania at the time or in the immediate aftermath of the crashes, and
who suffered physical harm or death as a result of such an air crash. The
Department seeks comment on whether a Departmental regulation or a statement
of policy by the Special Master would be appropriate to clarify these
criteria and, if so, what those criteria should be.

Public commentators have suggested differing interpretations of the
statutory terms ?present at,? ?physical harm,? and ?immediate aftermath.?
The Department invites comment on the appropriate scope of each of those
terms. In particular, how should ?present at? be interpreted? Should the
term ?physical harm? be limited to serious injuries, as it is under some
other no-fault compensation schemes (see, e.g., N.Y. INSURANCE LAW § 5102
(d) (McKinney 2000)), or should it be construed more broadly? Further,
should ?physical harm? be limited to currently identifiable injuries? Can
and should the program address latent, but not yet evident, harm? What
documentation or other evidence should be required by the Special Master as
to the claimant?s presence at the World Trade Center or physical harm
resulting from the air crash? Moreover, what documentation or other evidence
should the Special Master seek to verify theidentity of those lost for whom
claims are filed? Finally, what duration of time is intended by the
statutory phrase ?immediate aftermath??

Section 405(c)(2)(C) provides that the ?personal representative? of an
eligible decedent is the appropriate person to file a claim on a decedent?s
behalf. The Department seeks comment on whether a Departmental regulation or
a statement of policy by the Special Master would be appropriate to clarify
questions concerning personal representatives, for example:


a.. Whether the Special Master should require that all those who consider
themselves to be survivors of someone lost in the crashes be notified of a
claim by a ?personal representative?;

b.. Whether the Special Master should require that the ?personal
representative? identify all those who consider themselves to be survivors
of someone lost in the crashes and obtain from each a signed statement
waiving the right to litigation prior to the acceptance of a claim;

c.. Whether the Special Master can, within the brief statutory period
identified by the statute, determine who among different claimants is the
appropriate ?personal representative?;

d.. Whether the Special Master should, in any matter involving a dispute
as to the identity of the ?personal representative,? require prior
adjudication and judgment by a state court of competent jurisdiction; and

e.. Whether the Special Master should make determinations of compensation
for claimants and escrow payment until disputes regarding the identity of
the ?personal representative? can be resolved by a court of competent
jurisdiction.
Topic #6: Nature and Amount of Compensation.

Section 405(b) of the statute indicates that the Special Master shall
determine the amount of compensation based on ?the harm to the claimant, the
facts of the claim, and the individual circumstances of the claimant.? Yet
each of the perhaps thousands of determinations must be made in a very short
period of time. Moreover, such determinations should be founded on
consistent and clear principles that treat each claimant fairly. The
Department invites comments that identify the practical means to achieve
these results all within the very short time period that Congress has
permitted. Among other topics, the Department would welcome comment on
whether and how schedules or statistical methodologies should be developed
and used in reaching a determination for each claimant within the mandated
time period. In addition, comments are welcomed on whether publication of
such schedules or hypothetical or presumptive awards for classes of
individuals would assist potential claimants in determining whether to file.

Economic Loss: As indicated above, the Department is of the view that the
Special Master should not require that any claimant employ any experts on
economic or other theories of losses. It may therefore be appropriate for
regulations to draw on available information from appropriate specialists in
relevant fields to analyze economic losses. The Department invites comment
regarding the necessary qualifications for such specialists, the data that
should be utilized, the methodologies that should be employed in analyzing
economic losses, the documentation that should be required for every
claimant, and how state law should bear upon such determinations. In
addition, the Department invites comments on how to address theeconomic
losses of individuals whose lost future income streams would have been
highly contingent, variable, or unpredictable.

Noneconomic Losses: Section 402(7) lists several types of noneconomic losses
that should be considered. The Department invites comments regarding
whether, and in what manner, the Special Master can or should draw
meaningful distinctions between individuals who died in different locations
and, similarly, whether the Special Master can or should draw meaningful
distinctions between individuals who suffered similar injuries. The
Department also invites comments on whether the Department should issue
regulations determining the amount of noneconomic loss for classes of
similarly situated individuals or whether, instead, the Special Master
should determine all noneconomic loss on a detailed claim-by-claim basis.
Further, what facts and circumstances should be considered in determining
noneconomic losses for each individual, and what standards should be
employed?

Collateral Sources: Section 405(b)(6) provides that the Special Master shall
reduce the amount of compensation by the amount of the collateral source
compensation the claimant has received or is entitled to receive as a result
of the terrorist-related aircraft crashes of September 11, 2001. The
Department invites comments on how to determine what constitutes a
"collateral source" for purposes of this provision, and other related
issues. For example, the Department appreciates the strong policy reasons
for excluding charitable contributions from the definition of ?collateral
sources? and invites comment regarding whether the Act indeed permits the
Department to exclude such contributions from the definition. Similarly, the
Department invites comments on whether "in kind" and/or material
contributions could or should be considered collateral sources. Finally, the
Department invites comments on how to determine whetherpotential future
collateral source payments are ones that individuals are ?entitled to
receive? for purposes of Section 405(b)(6).

Fraud Prevention Measures

The Department is committed to preventing and prosecuting any fraudulent
attempts to collect from the Fund. The Department therefore invites comments
regarding any measures that the Department should take to prevent and detect
fraud.

Other topics for comment

The Department reiterates that it welcomes public comments on any and all
aspects of the administration of the fund.

Application of various laws and Executive Orders to this rulemaking.

There are a number of laws and Executive Orders whose provisions may have
implications for this rulemaking process. Due to the preliminary nature of
this notice, it does not address these requirements. Nonetheless, the
Department welcomes comments that will help it address the applicability of
any laws or Executive Orders to future rulemaking under the Act.




Dated: ____________________________
John Ashcroft
Attorney General

2001-12-15