81_FR_39051 81 FR 38936 - James Zadroga 9/11 Victim Compensation Fund Reauthorization Act

81 FR 38936 - James Zadroga 9/11 Victim Compensation Fund Reauthorization Act

DEPARTMENT OF JUSTICE

Federal Register Volume 81, Issue 115 (June 15, 2016)

Page Range38936-38948
FR Document2016-14259

On December 18, 2015, President Obama signed into law the James Zadroga 9/11 Victim Compensation Fund Reauthorization Act (the ``Reauthorized Zadroga Act''). The Act extends the September 11th Victim Compensation Fund of 2001 which provides compensation to any individual (or a personal representative of a deceased individual) who suffered physical harm or was killed as a result of the terrorist- related aircraft crashes of September 11, 2001, or the rescue and recovery efforts during the immediate aftermath of such crashes or the debris removal efforts that took place in the immediate aftermath of those crashes. Special Master Sheila L. Birnbaum, appointed by the Attorney General to administer the Fund, is issuing this Interim Final Rule to address changes required by the Reauthorized Zadroga Act. Specifically, the statute extends the time period during which eligible claimants may submit claims for compensation until December 18, 2020, increases the Victim Compensation Fund's total funding available to pay claims, creates different categories of claims, directs the Victim Compensation Fund to issue full compensation to eligible claimants and imposes limitations on certain components of future loss calculations.

Federal Register, Volume 81 Issue 115 (Wednesday, June 15, 2016)
[Federal Register Volume 81, Number 115 (Wednesday, June 15, 2016)]
[Rules and Regulations]
[Pages 38936-38948]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-14259]


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DEPARTMENT OF JUSTICE

28 CFR Part 104

[Docket No. CIV 151]
RIN 1105-AB49


James Zadroga 9/11 Victim Compensation Fund Reauthorization Act

AGENCY: Department of Justice.

ACTION: Interim final rule.

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SUMMARY: On December 18, 2015, President Obama signed into law the 
James Zadroga 9/11 Victim Compensation Fund Reauthorization Act (the 
``Reauthorized Zadroga Act''). The Act extends the September 11th 
Victim Compensation Fund of 2001 which provides compensation to any 
individual (or a personal representative of a deceased individual) who 
suffered physical harm or was killed as a result of the terrorist-
related aircraft crashes of September 11, 2001, or the rescue and 
recovery efforts during the immediate aftermath of such crashes or the 
debris removal efforts that took place in the immediate aftermath of 
those crashes. Special Master Sheila L. Birnbaum, appointed by the 
Attorney General to administer the Fund, is issuing this Interim Final 
Rule to address changes required by the Reauthorized Zadroga Act. 
Specifically, the statute extends the time period during which eligible 
claimants may submit claims for compensation until December 18, 2020, 
increases the Victim Compensation Fund's total funding available to pay 
claims, creates different categories of claims, directs the Victim 
Compensation Fund to issue full compensation to eligible claimants and 
imposes limitations on certain components of future loss calculations.

DATES: Effective date: This rule is effective June 15, 2016. Comment 
date: Written comments must be submitted on or before July 15, 2016. 
Comments received by mail will be considered timely if they are 
postmarked on or before that date. The electronic Federal Docket 
Management System (FDMS) will accept comments until midnight Eastern 
Time at the end of that day.

ADDRESSES: Please address all comments regarding this rule by U.S. mail 
to: Jordana Feldman, September 11th Victim Compensation Fund, Civil 
Division, U.S. Department of Justice, 290 Broadway, Suite 1300, New 
York, New York 10007. To ensure proper handling, please reference CIV 
Docket No. 151 on your correspondence. Comments may also be sent 
electronically through http://regulations.gov using the electronic 
comment form provided on that site. An electronic copy of this document 
is also available at the http://regulations.gov Web site. The Civil 
Division will accept attachments to electronic comments in Microsoft 
Word, WordPerfect, or Adobe PDF formats only.

FOR FURTHER INFORMATION CONTACT: Catherine V. Emerson, Director, Office 
of Management Programs, Civil Division, U.S. Department of Justice, 
Main Building, Room 3140, 950 Pennsylvania Avenue NW., Washington, DC 
20530, telephone 855-885-1555 (TTY 855-885-1558).

SUPPLEMENTARY INFORMATION: 

Public Comments

    The Department is publishing this interim final rule, effective on 
June 15, 2016, the statutory deadline for updating the existing 
regulations in light of the statutory changes made by the Reauthorized 
Zadroga Act.
    The Department is providing a 30-day period for public comment. The 
regulatory text of this rule is restating all of the provisions of 28 
CFR part 104, as revised, for ease of reference and application for the 
filing of claims. Commenters should be aware, though, that only certain 
portions of the existing regulations are being revised at this time, 
and the Department is only soliciting public comments on the changes 
being made from the existing

[[Page 38937]]

text of the regulations in 28 CFR part 104. These changes are clearly 
indicated in a redlined/strikeout version of the regulatory text that 
is included at www.regulations.gov and is available at www.vcf.gov or 
by calling 855-885-1555 (TTY 855-885-1558). Accordingly, public 
comments will be considered only with respect to the revisions made by 
the interim final rule and not as to provisions of the regulations that 
were already in effect prior to enactment of the Reauthorized Zadroga 
Act.

Posting of Public Comments

    Please note that all comments received are considered part of the 
public record and made available for public inspection online at http://www.regulations.gov. Information made available for public inspection 
includes personal identifying information (such as your name, address, 
etc.) voluntarily submitted by the commenter.
    If you wish to submit personal identifying information (such as 
your name, address, etc.) as part of your comment, but do not wish it 
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING 
INFORMATION'' in the first paragraph of your comment. You must also 
locate all the personal identifying information that you do not want 
posted online in the first paragraph of your comment and identify what 
information you want the agency to redact. Personal identifying 
information identified and located as set forth above will be placed in 
the agency's public docket file, but not posted online.
    If you wish to submit confidential business information as part of 
your comment but do not wish it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You must also prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, the agency may choose not to post that comment 
(or to only partially post that comment) on http://www.regulations.gov. 
Confidential business information identified and located as set forth 
above will not be placed in the public docket file, nor will it be 
posted online.
    If you wish to inspect the agency's public docket file in person by 
appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.

Background

    Pursuant to Title IV of Public Law 107-42 (``Air Transportation 
Safety and System Stabilization Act'') (2001 Act), the September 11th 
Victim Compensation Fund of 2001 was open for claims from December 21, 
2001, through December 22, 2003. The Fund provided compensation to 
eligible individuals who were physically injured as a result of the 
terrorist-related aircraft crashes of September 11, 2001, and to 
personal representatives of those who died as a result of the crashes.
    Special Master Kenneth R. Feinberg was appointed by the Attorney 
General to administer the Fund. The Fund was governed by Interim Final 
Regulations issued on December 21, 2001, see 66 FR 66274, and by Final 
Regulations issued on March 13, 2002, see 67 FR 11233. During its two 
years of operation, the Fund distributed over $7.049 billion to 
survivors of 2,880 persons killed in the September 11th attacks and to 
2,680 individuals who were injured in the attacks or in the rescue 
efforts conducted thereafter. In 2004, Special Master Feinberg issued a 
report describing how the fund was administered. See Final Report of 
the Special Master for the September 11th Victim Compensation Fund of 
2001.
    On January 2, 2011, President Obama signed Public Law 111-347, the 
James Zadroga 9/11 Health and Compensation Act of 2010 (Zadroga Act) 
Public Law 114-113, Div. O, Title IV, into law. Title I of the Zadroga 
Act established a program within the Department of Health and Human 
Services to provide medical monitoring and treatment benefits to 
eligible individuals. Title II amended the 2001 Act and reopened the 
Fund. Among other changes, Title II added new categories of 
beneficiaries for the Fund and set new filing deadlines. It also 
imposed a cap on the total awards that can be paid by the Fund and 
limited the fees that an attorney may receive for awards made under the 
Fund.
    The Zadroga Act did not appropriate administrative funds for the 
Fund to begin taking and processing claims. On April 15, 2011, 
President Obama signed into law Public Law 112-10, the continuing 
budget resolution for 2011, which permits the Fund to draw on the money 
originally allocated in the Zadroga Act in order to pay for its 
administrative expenses, beginning on October 1, 2011.
    The Attorney General appointed Sheila L. Birnbaum to serve as 
Special Master and to administer the Fund. On June 21, 2011, the 
Special Master issued the Notice of Proposed Rulemaking, which provided 
for a 45-day public comment period. On August 26, 2011, after 
evaluating the comments received, the Special Master signed the Final 
Rule, and on August 31, 2011, the Final Rule was published in the 
Federal Register. See 76 FR 54112.
    On December 18, 2015, President Obama signed into law Public Law 
114-113, providing for the reauthorization of the Zadroga Act. The 
Reauthorized Zadroga Act extends the time period during which eligible 
claimants may submit claims, increases the Victim Compensation Fund's 
total funding available to pay claims, creates different categories of 
claims, directs the Victim Compensation Fund to issue full compensation 
to eligible claimants and instructs the Victim Compensation Fund to 
implement certain changes to the policies and procedures used to 
evaluate and process claims.
    This Interim Final Rule addresses those changes mandated by the 
statute. In accordance with the rulemaking process, this Interim Final 
Rule is effective on June 15, 2016. Once the rule is published in the 
Federal Register, there will be a 30-day public comment period. After 
that period, the Special Master will review and evaluate any comments 
and will publish a final rule with any clarifications or amendments 
deemed appropriate.

A. Summary of Key Statutory Changes

    The Reauthorized Zadroga Act makes several changes to the Zadroga 
Act, including the following: The statute extends the deadline for 
filing claims; adds or changes certain eligibility definitions; 
establishes different categories of claims based on timing of the 
issuance of a letter setting forth the total amount of compensation to 
which a claimant is entitled; changes certain policies and procedures 
for evaluating claims and computing losses; removes a category of 
losses previously compensable by the Fund; requires that the amount of 
compensation to which a claimant is entitled not exceed the collateral 
source compensation that the claimant has received or is entitled to 
receive; increases the amount of funding available to pay claims and 
administrative costs and accelerates of the availability of funding; 
and directs the Fund to perform an annual reassessment of policies and 
procedures.
    Specifically, the statute:
     Extends the deadline for filing a claim from the original 
deadline of October 3, 2016 to the new deadline of December 18, 2020;
     Codifies the definition of ``9/11 crash site'' to reflect 
the definition of the

[[Page 38938]]

New York City exposure zone provided in the 2011 regulations;
     Adds new definitions regarding the types of conditions 
covered by referencing WTC-related health conditions as defined by 
Section 3312(a) and 3322(b) of the Public Health Service Act (42 U.S.C. 
300mm-22 and 300mm-32) and specifically excluding mental health 
conditions;
     Establishes two categories of claims--Group A and Group 
B--based on the date the Special Master ``postmarks and transmits'' a 
final award determination to the claimant;
     Imposes caps on the amount of non-economic loss that can 
be computed for different types of conditions (categorized as cancer 
and non-cancer);
     Imposes a $200,000 cap on the annual gross income, as 
defined in Section 61 of the Internal Revenue Code, used to determine 
economic loss;
     Directs the Victim Compensation Fund to prioritize the 
compensation of claims that present the most debilitating physical 
conditions;
     Eliminates ``future medical expense loss'' as a 
compensable economic loss;
     Eliminates any minimum award to the extent that collateral 
source offsets exceed the amount of compensation;
     Makes the original $2,775,000,000 appropriation available 
immediately to pay claims. Previously, only $875,000,000 of this amount 
was available through October 3, 2016. It also provides an additional 
$4,600,000,000 in funding that becomes available in October 2016; and
     Directs the Special Master to conduct an annual 
reassessment of policies and procedures.

B. Revisions to the Rule Conforming to Statutory Changes

    These interim final regulations amend the Department of Justice's 
August 2011 final regulations in order to reflect changes required by 
the Reauthorized Zadroga Act. Specifically:
     Section 104.2 Eligibility definitions and requirements is 
revised to include the definition of ``Group A claims'' and ``Group B 
claims.'' It also includes the definition of a ``WTC-Related Physical 
Health Condition'', and makes clear that mental health conditions are 
not covered. This section also reflects the codification of the prior 
regulations in terms of one of the definitions of the ``9/11 crash 
site''--the definition of the New York City exposure zone.
     Section 104.41 Amount of compensation is revised to 
reflect the statutory mandate that no Group B claim shall receive 
compensation greater than the amount of loss determined less the amount 
of any collateral source compensation that the claimant has received or 
is entitled to receive, thus eliminating the $10,000 minimum award that 
the Fund issued for Group A claims in the event that collateral offsets 
exceeded losses.
     Section 104.43 Determination of presumed economic loss for 
decedents is revised to account for the $200,000 annual gross income 
cap and the elimination of future medical expenses loss as a 
compensable loss.
     Section 104.44 Determination of presumed economic loss for 
injured claimants is revised to account for the $200,000 annual gross 
income cap and the elimination of future medical expenses loss as a 
compensable loss.
     Section 104.46 Determination of presumed noneconomic 
losses for injured claimants is revised to reflect the noneconomic loss 
cap of $250,000 for any single type of cancer and a noneconomic loss 
cap of $90,000 for any single type of non-cancer condition
     Section 104.51 Payments to eligible individuals is revised 
to reflect the amount and timing of availability of funding to pay 
claims and administrative costs: The $2,755,000,000 previously 
appropriated over time to be made immediately available and paid as 
soon as practicable and an additional $4,600,000,000 to be available in 
October 2016. The section also reflects the directive to the Special 
Master to prioritize the compensation of claims that present the most 
debilitating physical conditions. The section further addresses the 
statutory mandate to conduct an annual reassessment of policies and 
procedures and make adjustments as necessary to ensure that total 
expenditures do not exceed available funds.
     Section 104.62 Time limit on filing claims is revised to 
reflect the extended statutory deadline for filing claims, from October 
3, 2016 to December 18, 2020.

C. Additional Regulatory Changes To Reduce Burdens for Claimants

    This rule includes four additional regulatory changes, not required 
by the statute. All of these changes are designed to benefit claimants 
or reduce claimant burden.
    First, in section 104.3(c)(3), the definition of ``spouse'' has 
been expanded. Under the previous definition, the Special Master was 
required to identify the spouse of the deceased victim as the person 
who was reported or who legally could have been identified as the 
spouse on the victim's Federal tax return for the year prior to the 
year of the victim's death. The previous definition included two 
exceptions: (1) If the victim was married or divorced in accordance 
with applicable state law on or after January 1 of the year of the 
victim's death; or (2) If the victim was not required by law to file a 
Federal tax return for the year prior to the year of the victim's 
death. The updated regulations expand this definition to include a 
third exception: If the victim had a same-sex spouse who was lawfully 
married to the victim under applicable state law. The 2011 regulations 
were published when Section 3 of the Defense of Marriage Act was in 
effect, prohibiting the Federal government from recognizing same-sex 
marriages. As such, same-sex married couples could not identify 
themselves as married on their tax returns. Since that time, that 
section was held to be unconstitutional. These updated regulations 
reflect the changed law. They also reflect the Fund's policy to treat a 
same-sex spouse who was legally married to the victim under applicable 
state law as a spouse for purposes of this program.
    Second, section 104.22(c)(1) has been revised to remove the 
requirement that all claimants shall, at a minimum, submit all tax 
returns that were filed for the period beginning three years prior to 
the year of death or discovery of the injury and ending with the year 
the claim was filed or the year of death. Over the course of the 
program, the Special Master has found that this requirement can be 
burdensome in some cases where the tax returns are not necessary for 
determination. The Special Master retains the discretion to require the 
submission of tax returns where necessary for evaluation of the claim. 
For example, the Special Master may require the submission of tax 
returns where a claimant is seeking loss of self-employment income or 
loss of partnership income, or in order to evaluate whether an 
individual was identified on a deceased victim's Federal tax return for 
the year prior to the year of the victim's death. Accordingly, the 
updated regulations allow the Special Master discretion to determine 
whether and to what extent tax returns should be submitted for a 
particular claimant.
    Third, section 104.45(e) has been added as a new paragraph to 
address the determination of noneconomic losses for claimants who have 
a WTC-Related Physical Condition and who are found eligible for 
economic loss. The Reauthorized Zadroga Act imposes caps on the amount 
of noneconomic loss for an eligible cancer ($250,000) and an eligible 
non-cancer condition ($90,000). The revised regulations clarify that 
the

[[Page 38939]]

Special Master shall determine the appropriate noneconomic loss for 
economic loss claims in the same manner that she determines noneconomic 
loss only claims, see section 104.46, taking into account the extent of 
disability and the fact that different eligible conditions may 
contribute to the disability.
    The regulations further make clear in section 104.46 that the 
Reauthorized Zadroga Act does not place an aggregate cap on noneconomic 
loss but merely states that the loss for any type of cancer shall not 
exceed $250,000 and the loss for any type of non-cancer shall not 
exceed $90,000. A noneconomic loss may result from both a cancer and 
non-cancer condition and/or may result from more than one type of 
cancer. The revised regulations provide that the Special Master has 
discretion to consider the effect of multiple cancer conditions or 
multiple cancer and non-cancer conditions in computing the total 
noneconomic loss in such claims.
    Fourth, section 104.52 has been revised to remove the requirement 
that, for a claim filed by a Personal Representative on behalf of a 
deceased victim, the Personal Representative shall submit a plan of 
distribution for any award received from the Fund before the payment is 
authorized. Because the Personal Representative has an independent 
fiduciary obligation to distribute the award in accordance with 
applicable state law or court order, this documentation may not be 
needed in every case. Therefore, the revised regulations allow the 
Special Master discretion to determine whether a distribution plan is 
required prior to authorizing the payment authorization on a particular 
claim.

Regulatory Certifications

Administrative Procedure Act

    The Department's implementation of this rule as an interim final 
rule, with provision for post-promulgation public comment, is based on 
Sections 553(b)(A), 553(b)(B) and 553(d) of the Administrative 
Procedure Act. 5 U.S.C. 553. Under Section 553(b), an agency may issue 
a rule without notice of proposed rulemaking and the pre-promulgation 
opportunity for public comment where ``good cause'' exists or for 
``interpretive rules, general statements of policy, or rules of agency 
organization, procedure, or practice.''
    The revisions made by this interim final rule fit within the 
exceptions to the requirement for pre-promulgation opportunity for 
notice and comment set out in Section 553. See 5 U.S.C. 553(b)(A). All 
of the revisions identified in Part B above, ``Revisions to the Rule 
Conforming to Statutory Changes'' are interpretive rules issued by the 
Department to advise the public of the Department's construction of the 
new statute. These revisions to the rule merely explain or clarify the 
application of the substantive law set forth in the Reauthorized 
Zadroga Act; they do not create new rights or impose obligations 
independent of the statute. As noted, the Reauthorized Zadroga Act 
requires revisions to the implementing regulations including extending 
the deadline for filing claims, defining different categories of claims 
(Group A and Group B), changing certain policies and procedures for 
evaluating claims and computing compensable losses and increasing the 
funding available to pay claims, among other things. The interim final 
rule merely incorporates those changes and explains certain provisions 
in more detail, such as those relating to the filing and evaluation of 
claims and computation of losses for claims defined as Group B under 
the statute.
    The four additional changes, described in Part C, ``Additional 
Regulatory Changes to Reduce Burdens for Claimants,'' similarly are not 
subject to formal notice-and-comment requirements. The first change, to 
section 104.3(c)(3) is interpretive and clarifies the meaning of the 
term ``spouse'' consistent with law and pre-existing Department policy. 
The second and fourth changes, which eliminate certain documentation 
requirements, see sections 104.22(c)(1) and 104.52, are procedural in 
nature; they eliminate a required component of the documentation 
submitted with a claim and instead advise that the Special Master 
retains the discretion to ask for these documents if needed. Finally, 
the addition of section 104.45(e) and the revisions of section 104.46 
reflect general statements of policy; they serve only to advise the 
public that the Special Master may exercise her discretionary power in 
certain ways. For these reasons, the interim final rule is not subject 
to the formal notice-and-comment requirements under Section 553 of the 
APA.
    Furthermore, an agency may find good cause to exempt a rule from 
provisions of the APA if it is determined that those procedures are 
impracticable, unnecessary, or contrary to the public interest. (5 
U.S.C. 553(b)(B)). The Department finds that it is unnecessary and 
contrary to the public interest to seek public comment prior to 
promulgating this interim final rule for several reasons. First, 
delaying the implementation of the rule would delay the determination 
and payment of appropriate compensation for eligible Group B claims. 
Compensation determinations and corresponding payments will not be 
issued until the rule is effective. Thus, eligible claimants, 
particularly those suffering from terminal illness or extreme financial 
hardship, would be harmed by any delay. Second, the regulations that 
the interim final rule modifies were enacted pursuant to notice and 
comment rulemaking and to a large extent reflect changes recently 
mandated by statute. As previously discussed, the changes made by this 
interim final rule that are not mandated by the Reauthorized Zadroga 
Act reduce certain regulatory burdens on claimants or otherwise benefit 
the claimant by alleviating unnecessary document submission 
requirements and asserting the Special Master's discretion to 
prioritize the compensation of claims based on indicators that 
demonstrate severity of the claimant's eligible conditions. Third, the 
interim rule will be subject to public comment before its final 
implementation. The Department will consider any public comments made 
following publication of this interim final rule and make any 
appropriate adjustments or clarifications in the final rule. Finally, 
the deadline imposed by Congress to implement the regulations is 
exceedingly strict and therefore the Department has a limited period of 
time within which to update the regulations.
    The APA also permits an agency to make a rule effective upon date 
of publication in the Federal Register where ``good cause'' exists or 
for ``interpretive rules and statements of policy.'' 5 U.S.C. 553(d). 
As stated, the Department has determined that it would be unnecessary 
and contrary to the public interest to engage in full notice and 
comment rulemaking before putting these interim final regulations into 
effect, and that it is in the public interest to promulgate interim 
final regulations. For the same reasons, the Department has determined 
that there is good cause to make these interim final regulations 
effective immediately upon publication in the Federal Register, in 
accordance with Section 553(d) of the APA (5 U.S.C. 553(d)). Therefore, 
waiver of the 30-day period prior to the rule's effective date is 
appropriate here. The Department welcomes public comments on the 
changes being made by this interim final rule, and will carefully 
review any comments to ensure that any substantive concerns or issues 
regarding these changes are addressed in the final rule.

[[Page 38940]]

Paperwork Reduction Act of 1995

    This rule implements Public Law 114-113 which reauthorizes the 
September 11th Victim Compensation Fund of 2001. In order to be able to 
evaluate claims and provide compensation, the Fund will need to collect 
information from an individual (or a personal representatives of a 
deceased individual) who suffered physical harm or was killed as a 
result of the terrorist-related aircraft crashes of September 11, 2001 
or the debris removal efforts that took place in the immediate 
aftermath of those crashes. Accordingly, the Department of Justice, 
Civil Division will submit an information collection request to the 
Office of Management and Budget (OMB) for review and clearance in 
accordance with the emergency review procedures of the Paperwork 
Reduction Act of 1995. This request will seek reinstatement of the 
prior information collection authorized under Public Law 111-347. The 
Department has also published a Notice in the Federal Register 
soliciting public comment on the information collection associated with 
this rulemaking. 81 FR 20674 (April 8, 2016).

Regulatory Flexibility Act

    These regulations set forth procedures by which the Federal 
government will award compensation benefits to eligible victims of the 
September 11, 2001 terrorist attacks. Under 5 U.S.C. 601(6), the term 
``small entity'' does not include the Federal government, the party 
charged with incurring the costs attendant to the implementation and 
administration of the Victim Compensation Fund. Because this rule is 
being adopted as an interim final rule, a Regulatory Flexibility 
analysis is not required. This rule provides compensation to 
individuals, not to entities.

Executive Orders 12866 and 13563--Regulatory Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b), 
Principles of Regulation and in accordance with Executive Order 13563 
``Improving Regulation and Regulatory Review'' section 1(b) General 
Principles of Regulation. The Department of Justice has determined that 
this rule is an ``economically significant regulatory action'' under 
Executive Order 12866, section 3(f), Regulatory Planning and Review, 
and accordingly this rule has been reviewed by the Office of Management 
and Budget. Further, both Executive Orders 12866 and 13563 direct 
agencies to assess all costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, distributive impacts, 
and equity). Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. The Department has assessed the 
costs and benefits of this regulation and believes that the regulatory 
approach selected maximizes net benefits. As is described more fully in 
the next paragraph, the economic impact of the rule is a transfer of 
the funds that are being allocated by the Federal government to any 
individual (or a personal representative of a deceased individual) who 
suffered physical harm or was killed as a result of the terrorist-
related aircraft crashes of September 11, 2001, or the rescue and 
recovery efforts during the immediate aftermath of such crashes or the 
debris removal efforts that took place in the immediate aftermath of 
those crashes.
Assessment of Benefits, Costs, and Alternatives
    As required by Executive Order 13563 and Executive Order 12866 for 
economically significant regulatory actions, the Department has 
assessed the benefits and costs anticipated from this rulemaking and 
considered whether there are reasonably feasible alternatives to this 
rulemaking, including considering whether there are reasonably viable 
non-regulatory actions that could be taken in lieu of this rulemaking. 
The purpose of this rulemaking is to provide the legal and 
administrative framework necessary to provide compensation to any 
individual (or a personal representative of a deceased individual) who 
suffered physical harm or was killed as a result of the terrorist-
related aircraft crashes of September 11, 2001 or the debris removal 
efforts that took place in the immediate aftermath of those crashes, as 
provided by Title II of the Zadroga Act and the Reauthorized Zadroga 
Act. The primary benefits and costs of this rulemaking are both set by 
statute as Congress has appropriated a capped amount for this program--
an initial $2.775 billion payable under the Zadroga Act and an 
additional $4.6 billion under the Reauthorized Zadroga Act. Because the 
$7.375 billion appropriated by Congress for the Fund must pay for 
claimant awards as well as the Fund's administrative expenses, it is 
important for the Fund to establish procedures to screen out ineligible 
or inappropriate claims while keeping administrative expenses as low as 
possible consistent with the goal of ensuring that funds are not 
diverted to processing ineligible claims in order to maximize the 
amount of funds available for claimants. Finally, based on past 
practice with the operation of the original Fund and the reopened Fund 
and the necessity to establish the legal and administrative framework 
for the reauthorized Fund, the Department concludes that there are no 
viable non-regulatory actions that it could take to implement the 
Reauthorized Zadroga Act in a fair and efficient manner.
Time Period for Public Comment
    This interim final rule provides for a 30-day public comment period 
after publication. The rule is an interpretive rule that merely 
clarifies or explains the statute or that sets out procedural rules or 
general statements of policy. Therefore, an extended period of public 
comment is not necessary. A 30-day comment period will afford the 
public a meaningful opportunity to comment on the interim final rule.

Executive Order 13132--Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment. However, the Department of Justice has worked cooperatively 
with state and local officials in the affected communities in the 
preparation of this rule. Also, the Department individually notified 
national associations representing elected officials regarding this 
rulemaking.

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions

[[Page 38941]]

of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more, a major increase in costs or prices, or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign- based companies in domestic and export markets.

List of Subjects in 28 CFR Part 104

    Disaster assistance, Disability benefits, Terrorism.


0
Accordingly, for the reasons set forth in the preamble, chapter I of 
Title 28 of the Code of Federal Regulations is amended by revising part 
104 to read as follows:

PART 104--SEPTEMBER 11TH VICTIM COMPENSATION FUND

Subpart A--General; Eligibility
Sec.
104.1 Purpose.
104.2 Eligibility definitions and requirements.
104.3 Other definitions.
104.4 Personal Representative.
104.5 Foreign claims.
104.6 Amendments to this part.
Subpart B--Filing for Compensation
104.21 Presumptively covered conditions.
104.22 Filing for compensation.
Subpart C--Claim Intake, Assistance, and Review Procedures
104.31 Procedure for claims evaluation.
104.32 Eligibility review.
104.33 Hearing.
104.34 Publication of awards.
104.35 Claims deemed abandoned by claimants.
Subpart D--Amount of Compensation for Eligible Claimants
104.41 Amount of compensation.
104.42 Applicable state law.
104.43 Determination of presumed economic loss for decedents.
104.44 Determination of presumed noneconomic losses for claims on 
behalf of decedents.
104.45 Determination of presumed economic loss for injured 
claimants.
104.46 Determination of presumed noneconomic losses for injured 
claimants.
104.47 Collateral sources.
Subpart E--Payment of Claims
104.51 Payments to eligible individuals.
104.52 Distribution of award to decedent's beneficiaries.
Subpart F--Limitations
104.61 Limitation on civil actions.
104.62 Time limit on filing claims.
104.63 Subrogation.
Subpart G--Measures To Protect the Integrity of the Compensation 
Program
104.71 Procedures to prevent and detect fraud.
Subpart H--Attorney Fees
104.81 Limitation on attorney fees.

    Authority: Title IV of Pub. L. 107-42, 115 Stat. 230, 49 U.S.C. 
40101 note; Title II of Pub. L. 111-347, 124 Stat. 3623; Title IV of 
Pub. L. 114-113, 129 Stat. 2242.

Subpart A--General; Eligibility


Sec.  104.1  Purpose.

    This part implements the provisions of the September 11th Victim 
Compensation Fund of 2001, Title IV of Public Law 107-42, 115 Stat. 230 
(Air Transportation Safety and System Stabilization Act), as amended by 
the James Zadroga 9/11 Health and Compensation Act of 2010, Title II of 
Public Law 111-347, and as amended by the James Zadroga 9/11 Victim 
Compensation Fund Reauthorization Act, Division O, Title IV of Public 
Law 114-113 (the ``Act'') to provide full compensation to eligible 
individuals who were physically injured (as defined herein) as a result 
of the terrorist-related aircraft crashes of September 11, 2001, or the 
rescue and recovery efforts during the immediate aftermath of such 
crashes or debris removal during the immediate aftermath of those 
crashes, and to the ``personal representatives'' of those who were 
killed as a result of the crashes or the rescue and recovery efforts 
during the immediate aftermath of such crashes or debris removal during 
the immediate aftermath of such crashes. All compensation provided 
through the Victim Compensation Fund will be on account of personal 
physical conditions, physical injuries or death. The provisions of 
these regulations that relate to filing and evaluation of claims, 
determination of eligibility, and determination of compensable loss 
shall apply to all claims that are defined as Group B claims in the Act 
and in these regulations. Eligibility and compensation for Group A 
claims has been determined prior to the effective date of these 
regulations, pursuant to the regulations previously in effect.


Sec.  104.2  Eligibility definitions and requirements.

    (a) Categories of claims--(1) Group A claims. A claim is a Group A 
claim if the Special Master has transmitted a final award determination 
by sending a letter postmarked and transmitted on or before December 
17, 2015 indicating the total amount of compensation to which the 
claimant is entitled for that claim, pursuant to the regulations and 
methodology in effect on December 17, 2015.
    (2) Group B claims. A claim is a Group B claim if it is not a Group 
A claim. An individual can have both Group A claims and Group B claims.
    (b) Eligible claimants. The term eligible claimants means:
    (1) Individuals present at a 9/11 crash site at the time of or in 
the immediate aftermath of the terrorist-related aircraft crashes and 
who suffered physical harm, as defined herein, as a direct result of 
the crashes or the rescue and recovery efforts or debris removal;
    (2) The Personal Representatives of deceased individuals aboard 
American Airlines flights 11 or 77 and United Airlines flights 93 or 
175; and
    (3) The Personal Representatives of individuals who were present at 
a 9/11 crash site at the time of or in the immediate aftermath of the 
crashes and who died as a direct result of the terrorist-related 
aircraft crash or the rescue and recovery efforts during the immediate 
aftermath of such crashes or the debris removal during the immediate 
aftermath of such crashes.
    (4) The term eligible claimants does not include any individual or 
representative of an individual who is identified to have been a 
participant or conspirator in the terrorist-related crashes of 
September 11.
    (c) Immediate aftermath. The term immediate aftermath means any 
period beginning with the terrorist-related aircraft crashes of 
September 11, 2001, and ending on May 30, 2002.
    (d) Physical harm. The term physical harm shall mean:
    (1) A WTC-Related Physical Health Condition; or
    (2) A physical injury to the body resulting from the 9/11 attacks 
that was treated by a medical professional within a reasonable time 
from the date of discovering such harm and is verifiable by medical 
records created by or at the direction of the medical professional who 
provided the medical care contemporaneously with the care; but
    (3) Not including any Mental Health Condition.
    (e) Mental Health Condition. The term Mental Health Condition shall 
mean a mental health condition described in paragraph (1)(A)(ii) or 
(3)(B) of section 3312(a) of the Public Health Service Act (42 U.S.C. 
300 mm-22(a)), or any mental health condition certified under section 
3312(b)(2)(B)(iii) of such Act (including

[[Page 38942]]

such certification as applied under section 3322(a) (42 U.S.C. 300mm-
32(a) of such Act), or a mental health condition described in section 
3322(b)(2) (42 U.S.C. 300mm-32(b)(2)) of such Act, or any other mental 
health condition.
    (f) Personal Representative. The term Personal Representative shall 
mean the person determined to be the Personal Representative under 
Sec.  104.4 of this part.
    (g) WTC Health Program. The term WTC Health Program means the World 
Trade Center Health Program established by Title I of Public Law 111-
347 (codified at Title XXXIII of the Public Health Service Act, 42 
U.S.C. 300mm through 300mm-61).
    (h) WTC Program Administrator. The WTC Program Administrator shall 
mean the WTC Program Administrator as defined in section 3306 of the 
Public Health Service Act (42 U.S.C. 300mm-5).
    (i) WTC-Related Physical Health Condition. The term WTC-Related 
Physical Health Condition means a WTC-related health condition listed 
in Section 3312(a) of the Public Health Service Act (42 U.S.C. 300mm-
22(a)), including the conditions listed in section 3322(b) of such Act 
(42 U.S.C. 300mm-32(b)), and including those health conditions added by 
the WTC Program Administrator through rulemaking pursuant to the Public 
Health Service Act, 42 CFR part 88, except that such term shall not 
include any Mental Health Condition.
    (j) 9/11 crash site. The term 9/11 crash site means:
    (1) The World Trade Center site, Pentagon site, and Shanksville, 
Pennsylvania site; or
    (2) The buildings or portions of buildings that were destroyed as a 
result of the terrorist-related airplane crashes of September 11, 2001; 
or
    (3) The area in Manhattan that is south of the line that runs along 
Canal Street from the Hudson River to the intersection of Canal Street 
and East Broadway, north on East Broadway to Clinton Street, and east 
on Clinton Street to the East River; and
    (4) Any area related to, or along, routes of debris removal, such 
as barges and Fresh Kills.


Sec.  104.3  Other definitions.

    (a) Beneficiary. The term beneficiary shall mean a person to whom 
the Personal Representative shall distribute all or part of the award 
under Sec.  104.52 of this part.
    (b) Dependents. The Special Master shall identify as dependents 
those persons so identified by the victim on his or her Federal tax 
return for the year prior to the year of the victim's death (or those 
persons who legally could have been identified by the victim on his or 
her Federal tax return for the year prior to the year of the victim's 
death) unless:
    (1) The claimant demonstrates that a minor child of the victim was 
born or adopted on or after January 1 of the year of the victim's 
death;
    (2) Another person became a dependent in accordance with then- 
applicable law on or after January 1 of the year of the victim's death; 
or
    (3) The victim was not required by law to file a Federal income tax 
return for the year prior to the year of the victim's death.
    (c) Spouse. The Special Master shall identify as the spouse of a 
victim the person reported as spouse on the victim's Federal tax return 
for the year prior to the year of the victim's death (or the person who 
legally could have been identified by the victim on his or her Federal 
tax return for the year prior to the year of the victim's death) 
unless:
    (1) The victim was married or divorced in accordance with 
applicable state law on or after January 1 of the year of the victim's 
death; or
    (2) The victim was not required by law to file a Federal income tax 
return for the year prior to the year of the victim's death.
    (3) The Special Master shall identify as the spouse of a victim any 
same-sex spouse who was lawfully married to the victim under applicable 
state law.
    (d) The Act. The Act, as used in this part, shall mean Public Law 
107-42, 115 Stat. 230 (``Air Transportation Safety and System 
Stabilization Act''), 49 U.S.C. 40101 note, as amended by the James 
Zadroga 9/11 Health and Compensation Act of 2010, Title II of Public 
Law 111-347 and as further amended by the James Zadroga 9/11 Victim 
Compensation Fund Reauthorization Act, Division O, Title IV of Public 
Law 114-113.
    (e) Victim. The term victim shall mean an eligible injured claimant 
or a decedent on whose behalf a claim is brought by an eligible 
Personal Representative.
    (f) Substantially Complete. A claim becomes substantially complete 
when, in the opinion of the Special Master or her designee, the claim 
contains sufficient information and documentation to determine both the 
claimant's eligibility and, if the claimant is eligible, an appropriate 
award.


Sec.  104.4  Personal Representative.

    (a) In general. The Personal Representative shall be:
    (1) An individual appointed by a court of competent jurisdiction as 
the Personal Representative of the decedent or as the executor or 
administrator of the decedent's will or estate.
    (2) In the event that no Personal Representative or executor or 
administrator has been appointed by any court of competent 
jurisdiction, and such issue is not the subject of pending litigation 
or other dispute, the Special Master may, in her discretion, determine 
that the Personal Representative for purposes of compensation by the 
Fund is the person named by the decedent in the decedent's will as the 
executor or administrator of the decedent's estate. In the event no 
will exists, the Special Master may, in her discretion, determine that 
the Personal Representative for purposes of compensation by the Fund is 
the first person in the line of succession established by the laws of 
the decedent's domicile governing intestacy.
    (b) Notice to beneficiaries. (1) Any purported Personal 
Representative must, before filing an Eligibility Form, provide written 
notice of the claim (including a designated portion of the Eligibility 
Form) to the immediate family of the decedent (including, but not 
limited to, the decedent's spouse, former spouses, children, other 
dependents, and parents), to the executor, administrator, and 
beneficiaries of the decedent's will, and to any other persons who may 
reasonably be expected to assert an interest in an award or to have a 
cause of action to recover damages relating to the wrongful death of 
the decedent.
    (2) Personal delivery or transmission by certified mail, return 
receipt requested, shall be deemed sufficient notice under this 
provision. The claim forms shall require that the purported Personal 
Representative certify that such notice (or other notice that the 
Special Master deems appropriate) has been given. In addition, as 
provided in Sec.  104.21(b)(5) of this part, the Special Master may 
publish a list of individuals who have filed Eligibility Forms and the 
names of the victims for whom compensation is sought, but shall not 
publish the content of any such form.
    (c) Objections to Personal Representatives. Objections to the 
authority of an individual to file as the Personal Representative of a 
decedent may be filed with the Special Master by parties who assert a 
financial interest in the award up to 30 days following the filing by 
the Personal Representative. If timely filed, such objections shall be 
treated as evidence of a ``dispute''

[[Page 38943]]

pursuant to paragraph (d) of this section.
    (d) Disputes as to identity. The Special Master shall not be 
required to arbitrate, litigate, or otherwise resolve any dispute as to 
the identity of the Personal Representative. In the event of a dispute 
over the appropriate Personal Representative, the Special Master may 
suspend adjudication of the claim or, if sufficient information is 
provided, calculate the appropriate award and authorize payment, but 
place in escrow any payment until the dispute is resolved either by 
agreement of the disputing parties or by a court of competent 
jurisdiction. Alternatively, the disputing parties may agree in writing 
to the identity of a Personal Representative to act on their behalf, 
who may seek and accept payment from the Fund while the disputing 
parties work to settle their dispute.


Sec.  104.5  Foreign claims.

    In the case of claims brought by or on behalf of foreign citizens, 
the Special Master may alter the requirements for documentation set 
forth herein to the extent such materials are unavailable to such 
foreign claimants.


Sec.  104.6  Amendments to this part.

    All claims will be processed in accordance with the current 
provisions of this part.

Subpart B--Filing for Compensation


Sec.  104.21  Presumptively covered conditions.

    (a) In general. The Special Master shall maintain and publish on 
the Fund's Web site a list of presumptively covered conditions that 
resulted from the terrorist-related air crashes of September 11, 2001, 
or rescue and recovery or debris removal efforts during the immediate 
aftermath of such crashes. The list shall consist of the WTC-Related 
Physical Health Conditions that resulted from the terrorist-related air 
crashes of September 11, 2001 or rescue and recovery or debris removal 
efforts during the immediate aftermath of such crashes. Group B claims 
shall be eligible for compensation only if the Special Master 
determines based on the evidence presented that a claimant who seeks 
compensation for physical harm has at least one WTC-Related Physical 
Health Condition, with respect to a deceased individual, the cause of 
such individual's death is determined at least in part to be 
attributable to a WTC-Related Physical Health Condition.
    (b) Updates. The Special Master shall update the list of 
presumptively covered conditions to conform to any changes in the WTC-
Related Physical Health Conditions. Claims may then be amended pursuant 
to Sec.  104.22(e)(ii).
    (c) Conditions other than presumptively covered conditions. A 
claimant may also be eligible for payment under Sec.  104.51 where the 
claimant has at least one WTC-Related Physical Health Condition and the 
Special Master determines that the claimant--
    (1) Has a physical injury to the body that resulted from the 
terrorist-related air crashes of September 11, 2001 or rescue and 
recovery or debris removal efforts during the immediate aftermath of 
such crashes or presents extraordinary circumstances; and
    (2) Is otherwise eligible for payment.


Sec.  104.22  Filing for compensation.

    (a) Compensation form; ``filing.'' A compensation claim shall be 
deemed ``filed'' for purposes of section 405(b)(3) of the Act 
(providing that the Special Master shall issue a determination 
regarding the matters that were the subject of the claim not later than 
120 calendar days after the date on which a claim is filed), and for 
any time periods in this part, when it is substantially complete.
    (b) Eligibility Form. The Special Master shall develop an 
Eligibility Form, which may be a portion of a complete claim form, that 
will require the claimant to provide information necessary for 
determining the claimant's eligibility to recover from the Fund.
    (1) The Eligibility Form may require that the claimant certify that 
he or she has dismissed any pending lawsuit seeking damages as a result 
of the terrorist-related airplane crashes of September 11, 2001, or for 
damages arising from or related to debris removal (except for actions 
seeking collateral source benefits) no later than January 2, 2011 and 
that there is no pending lawsuit brought by a dependent, spouse, or 
beneficiary of the victim.
    (2) The Special Master may require as part of the notice 
requirement pursuant to Sec.  104.4(b) that the Personal Representative 
of the deceased individual provide copies of a designated portion of 
the Eligibility Form to the immediate family of the decedent 
(including, but not limited to, the spouse, former spouses, children, 
other dependents, and parents), to the executor, administrator, and 
beneficiaries of the decedent's will, and to any other persons who may 
reasonably be expected to assert an interest in an award or to have a 
cause of action to recover damages relating to the wrongful death of 
the decedent.
    (3) The Eligibility Form may require claimants to provide the 
following proof:
    (i) Proof of death: Death certificate or similar official 
documentation;
    (ii) Proof of presence at site: Documentation sufficient to 
establish presence at a 9/11 crash site, which may include, without 
limitation, a death certificate, proof of residence, such as a lease or 
utility bill, records of employment or school attendance, 
contemporaneous medical records, contemporaneous records of federal, 
state, city or local government, a pay stub, official personnel roster, 
site credentials, an affidavit or declaration of the decedent's or 
injured claimant's employer, or other sworn statement (or unsworn 
statement complying with 28 U.S.C. 1746) regarding the presence of the 
victim;
    (iii) Proof of physical harm: Certification of a conclusion by the 
WTC Health Program that the claimant suffers from a WTC-Related 
Physical Health Condition and is eligible for treatment under the WTC 
Health Program, or verification by the WTC Program Administrator that 
the claimant suffers from a WTC-Related Physical Health Condition, or 
other credible medical records from a licensed medical professional.
    (iv) Personal Representative: Copies of relevant legal 
documentation, including court orders; letters testamentary or similar 
documentation; proof of the purported Personal Representative's 
relationship to the decedent; copies of wills, trusts, or other 
testamentary documents; and information regarding other possible 
beneficiaries as requested by the Eligibility Form;
    (v) Any other information that the Special Master deems necessary 
to determine the claimant's eligibility.
    (vi) The Special Master may also require waivers, consents, or 
authorizations from claimants to obtain directly from third parties tax 
returns, medical information, employment information, or other 
information that the Special Master deems relevant in determining the 
claimant's eligibility or award, and may request an opportunity to 
review originals of documents submitted in connection with the Fund.
    (vii) The Special Master may publish a list of individuals who have 
filed Eligibility Forms on behalf of a deceased victim and the names of 
the deceased victims for whom compensation is sought, but shall not 
publish the content of any such form.
    (c) Personal Injury Compensation Form and Death Compensation Form. 
The Special Master shall develop a Personal Injury Compensation Form,

[[Page 38944]]

which may be a portion of a complete claim form, that each injured 
claimant must submit. The Special Master shall also develop a Death 
Compensation Form, which may be a portion of a complete claim form, 
that each Personal Representative must submit. These forms shall 
require the claimant to provide certain information that the Special 
Master deems necessary to determining the amount of any award, 
including information concerning income, collateral sources, benefits, 
settlements and attorneys' fees relating to civil actions described in 
section 405(c)(3)(C)(iii) of the Act, and other financial information, 
and shall require the claimant to state the factual basis for the 
amount of compensation sought. It shall also allow the claimant to 
submit certain other information that may be relevant, but not 
necessary, to the determination of the amount of any award.
    (1) The Special Master may ask claimants to submit certain tax 
returns or tax transcripts for returns that the Special Master deems 
appropriate for determination of an award. The Special Master may also 
require waivers, consents, or authorizations from claimants to obtain 
directly from third parties medical information, employment 
information, or other information that the Special Master deems 
relevant to determining the amount of any award.
    (2) Claimants may attach to the `Personal Injury Compensation 
Form'' or ``Death Compensation Form'' any additional statements, 
documents or analyses by physicians, experts, advisors, or any other 
person or entity that the claimant believes may be relevant to a 
determination of compensation.
    (d) Submission of a claim. Section 405(c)(3)(C) of the Act provides 
that upon the submission of a claim under the Fund, the claimant waives 
the 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, or debris 
removal, except for civil actions to recover collateral source 
obligations and civil actions against any person who is a knowing 
participant in any conspiracy to hijack any aircraft or commit any 
terrorist act. A claim shall be deemed submitted for purposes of 
section 405(c)(3)(C) of the Act when the Eligibility Form is deemed 
filed, regardless of whether any time limits are stayed or tolled.
    (e) Amendment of claims. A claimant who has previously submitted a 
claim may amend such claim to include:
    (1) An injury or loss that the claimant had not suffered (or did 
not reasonably know the claimant suffered) at the time the claimant 
filed the previous claim;
    (2) A condition that the Special Master has identified and 
published in accordance with 104.21(a), since the time the claimant 
filed the previous claim, as a presumptively covered condition;
    (3) An injury for which the claimant was previously compensated by 
the Fund, but only if that injury has substantially worsened, resulting 
in damages or loss that was not previously compensated.
    (f) Provisions of information by third parties. Any third party 
having an interest in a claim brought by a Personal Representative may 
provide written statements or information regarding the Personal 
Representative's claim. The Claims Evaluator or the Special Master or 
the Special Master's designee may, at his or her discretion, include 
the written statements or information as part of the claim.

Subpart C--Claim Intake, Assistance, and Review Procedures


Sec.  104.31  Procedure for claims evaluation.

    (a) Initial review. Claims Evaluators shall review the forms filed 
by the claimant and either deem the claim ``filed'' or notify the 
claimant of any deficiency in the forms or any required documents.
    (b) Procedure. The Claims Evaluator shall determine eligibility and 
the claimant's presumed award pursuant to Sec. Sec.  104.43 to 104.46 
of this part and notify the claimant in writing of the eligibility 
determination, or the amount of the presumed award as applicable, and 
the right to request a hearing before the Special Master or her 
designee under Sec.  104.33 of this part. After an eligible claimant 
has been notified of the presumed award, within 30 days the claimant 
may either accept the presumed compensation determination as the final 
determination and request payment, or may instead request a review 
before the Special Master or her designee pursuant to Sec.  104.33. 
Claimants found to be ineligible may appeal pursuant to Sec.  104.32.
    (c) Multiple claims from the same family. The Special Master may 
treat claims brought by or on behalf of two or more members of the same 
immediate family as related or consolidated claims for purposes of 
determining the amount of any award.


Sec.  104.32  Eligibility review.

    Any claimant deemed ineligible by the Claims Evaluator may appeal 
that decision to the Special Master or her designee by filing an 
eligibility appeal within 30 days on forms created by the office of the 
Special Master.


Sec.  104.33  Hearing.

    (a) Conduct of hearings. Hearings shall be before the Special 
Master or her designee. The objective of hearings shall be to permit 
the claimant to present information or evidence that the claimant 
believes is necessary to a full understanding of the claim. The 
claimant may request that the Special Master or her designee review any 
evidence relevant to the determination of the award, including without 
limitation: The nature and extent of the claimant's injury; evidence of 
the claimant's presence at a 9/11 crash site; factors and variables 
used in calculating economic loss; the identity of the victim's spouse 
and dependents; the financial needs of the claimant, facts affecting 
noneconomic loss; and any factual or legal arguments that the claimant 
contends should affect the award. Claimants shall be entitled to submit 
any statements or reports in writing. The Special Master or her 
designee may require authentication of documents, including medical 
records and reports, and may request and consider information regarding 
the financial resources and expenses of the victim's family or other 
material that the Special Master or her designee deems relevant.
    (b) Location and duration of hearings. The hearings shall, to the 
extent practicable, be scheduled at times and in locations convenient 
to the claimant or his or her representative. The hearings shall be 
limited in length to a time period determined by the Special Master or 
her designee.
    (c) Witnesses, counsel, and experts. Claimants shall be permitted, 
but not required, to present witnesses, including expert witnesses. The 
Special Master or her designee shall be permitted to question witnesses 
and examine the credentials of experts. The claimant shall be entitled 
to be represented by an attorney in good standing, but it is not 
necessary that the claimant be represented by an attorney. All 
testimony shall be taken under oath.
    (d) Waivers. The Special Master shall have authority and discretion 
to require any waivers necessary to obtain more individualized 
information on specific claimants.
    (e) Award Appeals. For award appeals, the Special Master or her 
designee shall make a determination whether:
    (1) There was an error in determining the presumptive award, either 
because

[[Page 38945]]

the claimant's individual criteria were misapplied or for another 
reason; or
    (2) The claimant presents extraordinary circumstances not 
adequately addressed by the presumptive award.
    (f) Determination. The Special Master shall notify the claimant in 
writing of the final amount of the award, but need not create or 
provide any written record of the deliberations that resulted in that 
determination. There shall be no further review or appeal of the 
Special Master's determination. In notifying the claimant of the final 
amount of the award, the Special Master may designate the portions or 
percentages of the final award that are attributable to economic loss 
and non-economic loss, respectively, and may provide such other 
information as appropriate to provide adequate guidance for a court of 
competent jurisdiction and a personal representative.


Sec.  104.34  Publication of awards.

    The Special Master reserves the right to publicize the amounts of 
some or all of the awards, but shall not publish the name of the 
claimants or victims that received each award. If published, these 
decisions would be intended by the Special Master as general guides for 
potential claimants and should not be viewed as precedent binding on 
the Special Master or her staff.


Sec.  104.35  Claims deemed abandoned by claimants.

    The Special Master and her staff will endeavor to evaluate promptly 
any information submitted by claimants. Nonetheless, it is the 
responsibility of the claimant to keep the Special Master informed of 
his or her current address and to respond within the duration of this 
program to requests for additional information. Claims outstanding 
because of a claimant's failure to complete his or her filings shall be 
deemed abandoned.

Subpart D--Amount of Compensation for Eligible Claimants


Sec.  104.41  Amount of compensation.

    As provided in section 405(b)(1)(B)(ii) of the Act, in determining 
the amount of compensation to which a claimant is entitled, the Special 
Master shall take into consideration the harm to the claimant, the 
facts of the claim, and the individual circumstances of the claimant. 
The individual circumstances of the claimant may include the financial 
needs or financial resources of the claimant or the victim's dependents 
and beneficiaries. As provided in section 405(b)(6) of the Act, the 
Special Master shall reduce the amount of compensation by the amount of 
collateral source compensation the claimant (or, in the case of a 
Personal Representative, the victim's beneficiaries) has received or is 
entitled to receive as a result of the terrorist- related aircraft 
crashes of September 11, 2001. In no event shall a Group B claim 
receive an amount of compensation that is greater than the amount of 
loss determined pursuant to these regulations less the amount of any 
collateral source compensation that the claimant has received or is 
entitled to receive for such claim as a result of the terrorist related 
aircraft crashes of September 11, 2001 for the Group B claim.


Sec.  104.42  Applicable state law.

    The phrase ``to the extent recovery for such loss is allowed under 
applicable state law,'' as used in the statute's definition of economic 
loss in section 402(5) of the Act, is interpreted to mean that the 
Special Master is not permitted to compensate claimants for those 
categories or types of economic losses that would not be compensable 
under the law of the state that would be applicable to any tort claims 
brought by or on behalf of the victim.


Sec.  104.43  Determination of presumed economic loss for decedents.

    In reaching presumed determinations for economic loss for Personal 
Representatives bringing claims on behalf of eligible decedents, the 
Special Master shall consider sums corresponding to the following:
    (a) Loss of earnings or other benefits related to employment. The 
Special Master, as part of the process of reaching a ``determination'' 
pursuant to section 405(b) of the Act, has developed a methodology and 
may publish updated schedules, tables, or charts that will permit 
prospective claimants to estimate determinations of loss of earnings or 
other benefits related to employment based upon individual 
circumstances of the deceased victim, including: The age of the 
decedent as of the date of death; the number of dependents who survive 
the decedent; whether the decedent is survived by a spouse; and the 
amount and nature of the decedent's income for recent years. The 
decedent's salary/income in the three years preceding the year of death 
(or for other years the Special Master deems relevant) shall be 
evaluated in a manner that the Special Master deems appropriate. The 
Special Master may, if she deems appropriate, take an average of income 
figures for the three years preceding the year of death, and may also 
consider income for other periods that she deems appropriate, including 
published pay scales for victims who were government or military 
employees. In computing any loss of earnings due to physical harm as 
defined herein the Special Master shall, for each year for which any 
loss of earnings or other benefits related to employment is computed, 
limit the annual past or projected future gross income of the decedent 
to an amount that is not greater than $200,000. For purposes of the 
computation of loss of earnings, annual gross income shall have the 
meaning given such term in section 61 of the Internal Revenue Code of 
1986. In cases where the victim was a minor child, the Special Master 
may assume an average income for the child commensurate with the 
average income of all wage earners in the United States. For victims 
who were members of the armed services or government employees such as 
firefighters or police officers, the Special Master may consider all 
forms of compensation (or pay) to which the victim was entitled. For 
example, military service members' and uniformed service members' 
compensation includes all of the various components of compensation, 
including, but not limited to, basic pay (BPY), basic allowance for 
housing (BAH), basic allowance for subsistence (BAS), federal income 
tax advantage (TAD), overtime bonuses, differential pay, and longevity 
pay.
    (b) Medical expense loss. This loss equals the documented past out-
of-pocket medical expenses that were incurred as a result of the 
eligible physical harm suffered by the decedent (i.e., those medical 
expenses that were not paid for or reimbursed through health insurance 
or other programs). This loss shall be calculated on a case-by-case 
basis, using documentation and other information submitted by the 
Personal Representative. The Special Master shall not consider any 
future medical expense loss.
    (c) Replacement services loss. For decedents who did not have any 
prior earned income, or who worked only part-time outside the home, 
economic loss may be determined with reference to replacement services 
and similar measures.
    (d) Loss due to death/burial costs. This loss shall be calculated 
on a case- by-case basis, using documentation and other information 
submitted by the personal representative and includes the out-of-pocket 
burial costs that were incurred.
    (e) Loss of business or employment opportunities. Such losses shall 
be addressed through the procedure

[[Page 38946]]

outlined above in paragraph (a) of this section.


Sec.  104.44  Determination of presumed noneconomic losses for death 
for claims on behalf of decedents.

    The presumed non-economic losses for an eligible death shall be 
$250,000 plus an additional $100,000 for the spouse and each dependent 
of the deceased victim. Such presumed losses include a noneconomic 
component of replacement services loss.


Sec.  104.45  Determination of presumed economic loss for injured 
claimants.

    In reaching presumed determinations for economic loss for claimants 
who suffered an eligible physical harm (but did not die), the Special 
Master shall consider sums corresponding to the following:
    (a) Loss of earnings or other benefits related to employment. The 
Special Master may determine the loss of earnings or other benefits 
related to employment on a case-by-case basis, using documentation and 
other information submitted by the claimant, regarding the actual 
amount of work that the claimant has missed or will miss without 
compensation. Alternatively, the Special Master may determine the loss 
of earnings or other benefits related to employment by relying upon the 
methodology created pursuant to Sec.  104.43(a) and adjusting the loss 
based upon the extent of the victim's physical harm. In determining or 
computing any loss of earnings due to eligible physical harm, the 
Special Master shall, for each year of any past or projected future 
loss of earnings or other benefits related to employment, limit the 
annual gross income of the claimant to an amount that is not greater 
than $200,000. For purposes of the computation of loss of earnings, 
annual gross income shall have the meaning given such term in section 
61 of the Internal Revenue Code of 1986.
    (1) Disability; in general. In evaluating claims of disability, the 
Special Master will, in general, make a determination regarding whether 
the claimant is capable of performing his or her usual profession in 
light of the eligible physical conditions. The Special Master may 
require that the claimant submit an evaluation of the claimant's 
disability and ability to perform his or her occupation prepared by 
medical experts.
    (2) Total permanent disability. With respect to claims of total 
permanent disability, the Special Master may accept a determination of 
disability made by the Social Security Administration as evidence of 
disability without any further medical evidence or review. The Special 
Master may also consider determinations of permanent total disability 
made by other governmental agencies or private insurers in evaluating 
the claim.
    (3) Partial disability. With respect to claims of partial 
disability, the Special Master may consider evidence of the effect of 
the partial disability on the claimant's ability to perform his or her 
usual occupation as well as the effect of the partial disability on the 
claimant's ability to participate in usual daily activities.
    (b) Medical Expense Loss. This loss equals the documented past out-
of-pocket medical expenses that were incurred as a result of the 
physical harm suffered by the victim (i.e., those medical expenses that 
were not paid for or reimbursed through health insurance or other 
programs). The Special Master shall not consider any future medical 
expense loss.
    (c) Replacement Services. For claimants who suffer physical harm 
and did not have any prior earned income or who worked only part time 
outside the home, economic loss may be determined with reference to 
replacement services and similar measures.
    (d) Loss of business or employment opportunities. Such losses shall 
be addressed through the procedure outlined above in paragraph (a) of 
this section.
    (e) Determination of Noneconomic Loss for Claimants Who Have a WTC-
Related Physical Condition and Who Are Found Eligible for Economic 
Loss. The Special Master shall determine the appropriate noneconomic 
loss for such claimants in accordance with the provisions of Sec.  
104.46, taking into account the extent of disability, and may consider 
whether the claimant has multiple WTC-Related Physical Health 
Conditions that contribute to the disability.


Sec.  104.46  Determination of presumed noneconomic losses for injured 
claimants

    The Special Master may determine the presumed noneconomic losses 
for claimants who suffered physical harm (but did not die) by relying 
upon the noneconomic losses described in Sec.  104.44 and adjusting the 
losses based upon the extent of the victim's physical harm. The 
presumed noneconomic loss for a claim based on any single type of 
cancer shall not exceed $250,000 and the presumed noneconomic loss for 
a claim based on any single type of non-cancer condition shall not 
exceed $90,000. Such presumed losses include any noneconomic component 
of replacement services loss. The Special Master has discretion to 
consider the effect of multiple cancer conditions or multiple cancer 
and non-cancer conditions in computing the total noneconomic loss.


Sec.  104.47  Collateral sources.

    (a) Payments that constitute collateral source compensation. The 
amount of compensation shall be reduced by all 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, 
or debris removal in the immediate aftermath, including life insurance, 
pension funds, death benefits programs, payments by Federal, State, or 
local governments related to the terrorist- related aircraft crashes of 
September 11, 2001, or debris removal and payments made pursuant to the 
settlement of a civil action as described in section 405(c)(3)(C)(iii) 
of the Act. In determining the appropriate collateral source offset for 
future benefit payments, the Special Master may employ an appropriate 
methodology for determining the present value of such future benefits. 
In determining the appropriate value of offsets for pension funds, life 
insurance and similar collateral sources, the Special Master may, as 
appropriate, reduce the amount of offsets to take account of self- 
contributions made or premiums paid by the victim during his or her 
lifetime. In determining the appropriate collateral source offset for 
future benefit payments that are contingent upon one or more future 
event(s), the Special Master may reduce such offsets to account for the 
possibility that the future contingencies may or may not occur. In 
cases where the recipients of collateral source compensation are not 
beneficiaries of the awards from the Fund, the Special Master shall 
have discretion to exclude such compensation from the collateral source 
offset where necessary to prevent beneficiaries from having their 
awards reduced by collateral source compensation that they will not 
receive.
    (b) Payments that do not constitute collateral source compensation. 
The following payments received by claimants do not constitute 
collateral source compensation:
    (1) The value of services or in-kind charitable gifts such as 
provision of emergency housing, food, or clothing; and
    (2) Charitable donations distributed to the beneficiaries of the 
decedent, to the injured claimant, or to the beneficiaries of the 
injured claimant by privately funded charitable entities; provided

[[Page 38947]]

however, that the Special Master may determine that funds provided to 
victims or their families through a privately funded charitable entity 
constitute, in substance, a payment described in paragraph (a) of this 
section.
    (3) Tax benefits received from the Federal government as a result 
of the enactment of the Victims of Terrorism Tax Relief Act.

Subpart E--Payment of Claims


Sec.  104.51  Payments to eligible individuals.

    (a) Payment date. Subject to paragraph (c) of this section, the 
Special Master shall authorize payment of an award to a claimant not 
later than 20 days after the date on which:
    (1) The claimant accepts the presumed award; or
    (2) A final award for the claimant is determined after a hearing on 
appeal.
    (b) Failure to accept or appeal presumed award. If a claimant fails 
to accept or appeal the presumed award determined for that claimant 
within 30 days, the presumed award shall be deemed to have been 
accepted and all rights to appeal the award shall have been waived.
    (c) Payment of Group A claims. Group A claims shall be paid as soon 
as practicable from the capped amount appropriated for such claims of 
$2,775,000,000.
    (d) Payment of Group B claims. Group B claims may be paid after the 
date on which new Group B claims may be filed under these regulations 
from the amount appropriated for Group A claims if and to the extent 
that there are funds remaining after all Group A claims have been paid 
and, thereafter, from the $4,600,000,000 amount appropriated 
specifically for Group B claims once it becomes available in fiscal 
year 2017 until expended.
    (e) Prioritization. The Special Master shall identify claims that 
present the most debilitating physical conditions and shall prioritize 
the compensation of such claims so that claimants with such 
debilitating conditions are not unduly burdened.
    (f) Reassessment. Commencing on December 18, 2017, and continuing 
at least annually thereafter until the closure of the Victim 
Compensation Fund, the Special Master shall review and reassess 
policies and procedures and make such adjustments as may be necessary 
to ensure that the total expenditures including administrative costs in 
providing compensation for claims in Group B do not exceed the funds 
deposited into the Victim Compensation Fund and to ensure that the 
compensation of those claimants who suffer from the most debilitating 
physical conditions is prioritized to avoid undue burden on such 
claimants.


Sec.  104.52  Distribution of award to decedent's beneficiaries.

    The Personal Representative shall distribute the award in a manner 
consistent with the law of the decedent's domicile or any applicable 
rulings made by a court of competent jurisdiction. The Special Master 
may require the Personal Representative to provide to the Special 
Master a plan for distribution of any award received from the Fund 
before payment is authorized. Notwithstanding any other provision of 
these regulations or any other provision of state law, in the event 
that the Special Master concludes that the Personal Representative's 
plan for distribution does not appropriately compensate the victim's 
spouse, children, or other relatives, the Special Master may direct the 
Personal Representative to distribute all or part of the award to such 
spouse, children, or other relatives.

Subpart F--Limitations


Sec.  104.61  Limitation on civil actions.

    (a) General. Section 405(c)(3)(C) of the Act provides that upon the 
submission of a claim under the Fund, the claimant waives the right to 
file a civil action (or 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, or for damages arising from or 
related to debris removal, except that this limitation does not apply 
to recover collateral source obligations, or to a civil action against 
any person who is a knowing participant in any conspiracy to hijack any 
aircraft or commit any terrorist act. The Special Master shall take 
appropriate steps to inform potential claimants of section 405(c)(3)(C) 
of the Act.
    (b) Pending actions. Claimants who have filed a civil action or who 
are a party to such an action as described in paragraph (a) of this 
section may not file a claim with the Special Master unless they 
withdraw from such action not later than January 2, 2012.
    (c) Settled actions. In the case of an individual who settled a 
civil action described in Section 405(c)(3)(C) of the Act, such 
individual may not submit a claim under this title unless such action 
was commenced after December 22, 2003, and a release of all claims in 
such action was tendered prior to January 2, 2011.


Sec.  104.62  Time limit on filing claims.

    (a) In general. Group B claims. Group B claims that were not 
submitted to the Victim Compensation Fund on or before December 17, 
2015 may be filed by an individual (or by a personal representative on 
behalf of a deceased individual) during the period beginning on June 
15, 2016, and ending on December 18, 2020. Notwithstanding the above, 
an individual who intends to file a Group B claim must register with 
the Victim Compensation Fund in accordance with the following:
    (1) In the case that the individual knew (or reasonably should have 
known) before October 3, 2011, that the individual suffered a physical 
harm or died as a result of the terrorist-related aircraft crashes of 
September 11, 2001, or as a result of debris removal, and is eligible 
to file a claim under this part as of October 3, 2011, the individual 
or representative of such individual as appropriate may file a claim 
not later than October 3, 2013.
    (2) In the case that the individual first knew (or reasonably 
should have known) on or after October 3, 2011, that the individual 
suffered a physical harm or died or in the case that the individual 
became eligible to file a claim under this part on or after that date, 
the individual or representative of such individual as appropriate may 
file a claim not later than the last day of the 2-year period beginning 
on the date that the individual or representative first knew (or should 
have known) that the individual both suffered from such harm and was 
eligible to file a claim under this title, but in no event beyond 
December 18, 2020.
    (b) Determination by Special Master. The Special Master or the 
Special Master's designee should determine the timeliness of all claims 
under paragraph of this section.


Sec.  104.63  Subrogation.

    Compensation under this Fund does not constitute the recovery of 
tort damages against a third party nor the settlement of a third party 
action, and the United States shall be subrogated to all potential 
claims against third party tortfeasors of any victim receiving 
compensation from the Fund. For that reason, no person or entity having 
paid other benefits or compensation to or on behalf of a victim shall 
have any right of recovery, whether through subrogation or otherwise, 
against the compensation paid by the Fund.

[[Page 38948]]

Subpart G--Measures To Protect the Integrity of the Compensation 
Program


Sec.  104.71  Procedures to prevent and detect fraud.

    (a) Review of claims. For the purpose of detecting and preventing 
the payment of fraudulent claims and for the purpose of assuring 
accurate and appropriate payments to eligible claimants, the Special 
Master shall implement procedures to:
    (1) Verify, authenticate, and audit claims;
    (2) Analyze claim submissions to detect inconsistencies, 
irregularities, duplication, and multiple claimants; and
    (3) Ensure the quality control of claims review procedures.
    (b) Quality control. The Special Master shall institute periodic 
quality control audits designed to evaluate the accuracy of submissions 
and the accuracy of payments, subject to the oversight of the Inspector 
General of the Department of Justice.
    (c) False or fraudulent claims. The Special Master shall refer all 
evidence of false or fraudulent claims to appropriate law enforcement 
authorities.

Subpart H--Attorney Fees


Sec.  104.81  Limitation on attorney fees.

    (a) In general--(1) In general. Notwithstanding any contract, the 
representative of an individual may not charge, for services rendered 
in connection with the claim of an individual under this title, 
including expenses routinely incurred in the course of providing legal 
services, more than 10 percent of an award paid under this title on 
such claim. Expenses incurred in connection with the claim of an 
individual in this title other than those that are routinely incurred 
in the course of providing legal services may be charged to a claimant 
only if they have been approved by the Special Master.
    (2) Certification. In the case of any claim in connection with 
which services covered by this section were rendered, the 
representative shall certify his or her compliance with this section 
and shall provide such information as the Special Master requires to 
ensure such compliance.
    (b) Limitation--(1) In general. Except as provided in paragraph 
(b)(2) of this section, in the case of an individual who was charged a 
legal fee in connection with the settlement of a civil action described 
in section 405(c)(3)(C)(iii) of the Act, the representative who charged 
such legal fee may not charge any amount for compensation for services 
rendered in connection with a claim filed by or on behalf of that 
individual under this title.
    (2) Exception. If the legal fee charged in connection with the 
settlement of a civil action described in section 405(c)(3)(C)(iii) of 
the Act of an individual is less than 10 percent of the aggregate 
amount of compensation awarded to such individual through such 
settlement, the representative who charged such legal fee to that 
individual may charge an amount for compensation for services rendered 
to the extent that such amount charged is not more than Ten (10) 
percent of such aggregate amount through the settlement, minus the 
total amount of all legal fees charged for services rendered in 
connection with such settlement.
    (c) Discretion to lower fee. In the event that the Special Master 
finds that the fee limit set by paragraph (a) or (b) of this section 
provides excessive compensation for services rendered in connection 
with such claim, the Special Master may, in the discretion of the 
Special Master, award as reasonable compensation for services rendered 
an amount lesser than that permitted for in paragraph (a) of this 
section.

    Dated: June 13, 2016.
Sheila L. Birnbaum,
Special Master.
[FR Doc. 2016-14259 Filed 6-13-16; 4:15 pm]
BILLING CODE 4410-12-P



                                           38936            Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations

                                           and not more than $189,361 for each                     PART 3282—MANUFACTURED HOME                            claimants may submit claims for
                                           such failure.                                           PROCEDURAL AND ENFORCEMENT                             compensation until December 18, 2020,
                                           *     *      *     *    *                               REGULATIONS                                            increases the Victim Compensation
                                                                                                                                                          Fund’s total funding available to pay
                                             (e) First offenders under paragraph (a)               ■ 21. The authority citation for part                  claims, creates different categories of
                                           or (b) of this section shall be subject to              3282 is revised to read as follows:                    claims, directs the Victim Compensation
                                           a civil penalty of $18,936, absent                                                                             Fund to issue full compensation to
                                           aggravating circumstances. Second and                     Authority: 28 U.S.C. 1 note; 28 U.S.C. 2461
                                                                                                   note; 42 U.S.C. 3535(d) and 5424.                      eligible claimants and imposes
                                           subsequent offenses by persons shall be                                                                        limitations on certain components of
                                           subject to an appropriate civil penalty                 ■ 22. Revise § 3282.10 to read as
                                                                                                                                                          future loss calculations.
                                           between $18,936 and $189,361, as                        follows:
                                                                                                                                                          DATES: Effective date: This rule is
                                           determined by the agency head or his or
                                                                                                   § 3282.10    Civil and criminal penalties.             effective June 15, 2016. Comment date:
                                           her designee.
                                                                                                      Failure to comply with these                        Written comments must be submitted
                                           *     *      *     *    *                               regulations may subject the party in                   on or before July 15, 2016. Comments
                                                                                                   question to the civil and criminal                     received by mail will be considered
                                           PART 180—CONSOLIDATED HUD                                                                                      timely if they are postmarked on or
                                           HEARING PROCEDURES FOR CIVIL                            penalties provided for in section 611 of
                                                                                                   the Act, 42 U.S.C. 5410. The maximum                   before that date. The electronic Federal
                                           RIGHTS MATTERS                                                                                                 Docket Management System (FDMS)
                                                                                                   amount of penalties imposed under
                                                                                                   section 611 of the Act shall be $2,750                 will accept comments until midnight
                                           ■  19. The authority citation for part 180              for each violation, up to a maximum of                 Eastern Time at the end of that day.
                                           is revised to read as follows:                          $3,437,500 for any related series of                   ADDRESSES: Please address all
                                             Authority: 28 U.S.C. 1 note; 29 U.S.C. 794;           violations occurring within one year                   comments regarding this rule by U.S.
                                           42 U.S.C. 2000d–1, 3535(d), 3601–3619,                  from the date of the first violation.                  mail to: Jordana Feldman, September
                                           5301–5320, and 6103.                                                                                           11th Victim Compensation Fund, Civil
                                                                                                     Dated: May 20, 2016.
                                                                                                                                                          Division, U.S. Department of Justice,
                                           ■ 20. In § 180.671, revise paragraphs                   Helen R. Kanovsky,
                                                                                                                                                          290 Broadway, Suite 1300, New York,
                                           (a)(1) through (3) to read as follows:                  General Counsel.
                                                                                                                                                          New York 10007. To ensure proper
                                                                                                   [FR Doc. 2016–14060 Filed 6–14–16; 8:45 am]            handling, please reference CIV Docket
                                           § 180.671 Assessing civil penalties for Fair
                                                                                                   BILLING CODE 4210–67–P                                 No. 151 on your correspondence.
                                           Housing Act cases.
                                                                                                                                                          Comments may also be sent
                                              (a) * * *                                                                                                   electronically through http://
                                              (1) $19,787, if the respondent has not               DEPARTMENT OF JUSTICE                                  regulations.gov using the electronic
                                           been adjudged in any administrative                                                                            comment form provided on that site. An
                                           hearing or civil action permitted under                 28 CFR Part 104                                        electronic copy of this document is also
                                           the Fair Housing Act or any state or                    [Docket No. CIV 151]                                   available at the http://regulations.gov
                                           local fair housing law, or in any                                                                              Web site. The Civil Division will accept
                                                                                                   RIN 1105–AB49                                          attachments to electronic comments in
                                           licensing or regulatory proceeding
                                           conducted by a federal, state, or local                 James Zadroga 9/11 Victim                              Microsoft Word, WordPerfect, or Adobe
                                           governmental agency, to have                            Compensation Fund Reauthorization                      PDF formats only.
                                           committed any prior discriminatory                      Act                                                    FOR FURTHER INFORMATION CONTACT:
                                           housing practice.                                                                                              Catherine V. Emerson, Director, Office
                                              (2) $49,467, if the respondent has                   AGENCY:    Department of Justice.                      of Management Programs, Civil
                                           been adjudged in any administrative                     ACTION:   Interim final rule.                          Division, U.S. Department of Justice,
                                           hearing or civil action permitted under                                                                        Main Building, Room 3140, 950
                                           the Fair Housing Act, or under any state                SUMMARY:   On December 18, 2015,                       Pennsylvania Avenue NW., Washington,
                                           or local fair housing law, or in any                    President Obama signed into law the                    DC 20530, telephone 855–885–1555
                                           licensing or regulatory proceeding                      James Zadroga 9/11 Victim                              (TTY 855–885–1558).
                                           conducted by a federal, state, or local                 Compensation Fund Reauthorization                      SUPPLEMENTARY INFORMATION:
                                           government agency, to have committed                    Act (the ‘‘Reauthorized Zadroga Act’’).
                                                                                                   The Act extends the September 11th                     Public Comments
                                           one other discriminatory housing
                                           practice and the adjudication was made                  Victim Compensation Fund of 2001                          The Department is publishing this
                                           during the 5-year period preceding the                  which provides compensation to any                     interim final rule, effective on June 15,
                                           date of filing of the charge.                           individual (or a personal representative               2016, the statutory deadline for
                                                                                                   of a deceased individual) who suffered                 updating the existing regulations in
                                              (3) $98,935, if the respondent has                   physical harm or was killed as a result                light of the statutory changes made by
                                           been adjudged in any administrative                     of the terrorist-related aircraft crashes of           the Reauthorized Zadroga Act.
                                           hearings or civil actions permitted                     September 11, 2001, or the rescue and                     The Department is providing a 30-day
                                           under the Fair Housing Act, or under                    recovery efforts during the immediate                  period for public comment. The
                                           any state or local fair housing law, or in              aftermath of such crashes or the debris                regulatory text of this rule is restating all
                                           any licensing or regulatory proceeding                  removal efforts that took place in the                 of the provisions of 28 CFR part 104, as
                                           conducted by a federal, state, or local                 immediate aftermath of those crashes.                  revised, for ease of reference and
                                           government agency, to have committed                    Special Master Sheila L. Birnbaum,                     application for the filing of claims.
ehiers on DSK5VPTVN1PROD with RULES




                                           two or more discriminatory housing                      appointed by the Attorney General to                   Commenters should be aware, though,
                                           practices and the adjudications were                    administer the Fund, is issuing this                   that only certain portions of the existing
                                           made during the 7-year period                           Interim Final Rule to address changes                  regulations are being revised at this
                                           preceding the date of filing of the                     required by the Reauthorized Zadroga                   time, and the Department is only
                                           charge.                                                 Act. Specifically, the statute extends the             soliciting public comments on the
                                           *      *     *     *     *                              time period during which eligible                      changes being made from the existing


                                      VerDate Sep<11>2014   14:36 Jun 14, 2016   Jkt 238001   PO 00000   Frm 00056   Fmt 4700   Sfmt 4700   E:\FR\FM\15JNR1.SGM   15JNR1


                                                            Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations                                            38937

                                           text of the regulations in 28 CFR part                  Background                                             which provided for a 45-day public
                                           104. These changes are clearly indicated                   Pursuant to Title IV of Public Law                  comment period. On August 26, 2011,
                                           in a redlined/strikeout version of the                  107–42 (‘‘Air Transportation Safety and                after evaluating the comments received,
                                           regulatory text that is included at                     System Stabilization Act’’) (2001 Act),                the Special Master signed the Final
                                           www.regulations.gov and is available at                 the September 11th Victim                              Rule, and on August 31, 2011, the Final
                                           www.vcf.gov or by calling 855–885–                      Compensation Fund of 2001 was open                     Rule was published in the Federal
                                           1555 (TTY 855–885–1558). Accordingly,                   for claims from December 21, 2001,                     Register. See 76 FR 54112.
                                           public comments will be considered                                                                                On December 18, 2015, President
                                                                                                   through December 22, 2003. The Fund
                                           only with respect to the revisions made                                                                        Obama signed into law Public Law 114–
                                                                                                   provided compensation to eligible
                                           by the interim final rule and not as to                                                                        113, providing for the reauthorization of
                                                                                                   individuals who were physically
                                           provisions of the regulations that were                                                                        the Zadroga Act. The Reauthorized
                                                                                                   injured as a result of the terrorist-related
                                           already in effect prior to enactment of                                                                        Zadroga Act extends the time period
                                                                                                   aircraft crashes of September 11, 2001,                during which eligible claimants may
                                           the Reauthorized Zadroga Act.                           and to personal representatives of those               submit claims, increases the Victim
                                                                                                   who died as a result of the crashes.                   Compensation Fund’s total funding
                                           Posting of Public Comments
                                                                                                      Special Master Kenneth R. Feinberg
                                                                                                                                                          available to pay claims, creates different
                                              Please note that all comments                        was appointed by the Attorney General                  categories of claims, directs the Victim
                                           received are considered part of the                     to administer the Fund. The Fund was                   Compensation Fund to issue full
                                           public record and made available for                    governed by Interim Final Regulations                  compensation to eligible claimants and
                                           public inspection online at http://                     issued on December 21, 2001, see 66 FR                 instructs the Victim Compensation
                                           www.regulations.gov. Information made                   66274, and by Final Regulations issued                 Fund to implement certain changes to
                                           available for public inspection includes                on March 13, 2002, see 67 FR 11233.                    the policies and procedures used to
                                           personal identifying information (such                  During its two years of operation, the                 evaluate and process claims.
                                           as your name, address, etc.) voluntarily                Fund distributed over $7.049 billion to                   This Interim Final Rule addresses
                                           submitted by the commenter.                             survivors of 2,880 persons killed in the               those changes mandated by the statute.
                                                                                                   September 11th attacks and to 2,680                    In accordance with the rulemaking
                                              If you wish to submit personal                       individuals who were injured in the
                                           identifying information (such as your                                                                          process, this Interim Final Rule is
                                                                                                   attacks or in the rescue efforts                       effective on June 15, 2016. Once the rule
                                           name, address, etc.) as part of your                    conducted thereafter. In 2004, Special
                                           comment, but do not wish it to be                                                                              is published in the Federal Register,
                                                                                                   Master Feinberg issued a report                        there will be a 30-day public comment
                                           posted online, you must include the                     describing how the fund was                            period. After that period, the Special
                                           phrase ‘‘PERSONAL IDENTIFYING                           administered. See Final Report of the                  Master will review and evaluate any
                                           INFORMATION’’ in the first paragraph                    Special Master for the September 11th                  comments and will publish a final rule
                                           of your comment. You must also locate                   Victim Compensation Fund of 2001.                      with any clarifications or amendments
                                           all the personal identifying information                   On January 2, 2011, President Obama                 deemed appropriate.
                                           that you do not want posted online in                   signed Public Law 111–347, the James
                                           the first paragraph of your comment and                 Zadroga 9/11 Health and Compensation                   A. Summary of Key Statutory Changes
                                           identify what information you want the                  Act of 2010 (Zadroga Act) Public Law                     The Reauthorized Zadroga Act makes
                                           agency to redact. Personal identifying                  114–113, Div. O, Title IV, into law. Title             several changes to the Zadroga Act,
                                           information identified and located as set               I of the Zadroga Act established a                     including the following: The statute
                                           forth above will be placed in the                       program within the Department of                       extends the deadline for filing claims;
                                           agency’s public docket file, but not                    Health and Human Services to provide                   adds or changes certain eligibility
                                           posted online.                                          medical monitoring and treatment                       definitions; establishes different
                                              If you wish to submit confidential                   benefits to eligible individuals. Title II             categories of claims based on timing of
                                           business information as part of your                    amended the 2001 Act and reopened the                  the issuance of a letter setting forth the
                                           comment but do not wish it to be posted                 Fund. Among other changes, Title II                    total amount of compensation to which
                                           online, you must include the phrase                     added new categories of beneficiaries                  a claimant is entitled; changes certain
                                           ‘‘CONFIDENTIAL BUSINESS                                 for the Fund and set new filing                        policies and procedures for evaluating
                                           INFORMATION’’ in the first paragraph                    deadlines. It also imposed a cap on the                claims and computing losses; removes a
                                           of your comment. You must also                          total awards that can be paid by the                   category of losses previously
                                           prominently identify confidential                       Fund and limited the fees that an                      compensable by the Fund; requires that
                                           business information to be redacted                     attorney may receive for awards made                   the amount of compensation to which a
                                                                                                   under the Fund.                                        claimant is entitled not exceed the
                                           within the comment. If a comment has
                                                                                                      The Zadroga Act did not appropriate                 collateral source compensation that the
                                           so much confidential business
                                                                                                   administrative funds for the Fund to                   claimant has received or is entitled to
                                           information that it cannot be effectively
                                                                                                   begin taking and processing claims. On                 receive; increases the amount of funding
                                           redacted, the agency may choose not to
                                                                                                   April 15, 2011, President Obama signed                 available to pay claims and
                                           post that comment (or to only partially
                                                                                                   into law Public Law 112–10, the                        administrative costs and accelerates of
                                           post that comment) on http://
                                                                                                   continuing budget resolution for 2011,                 the availability of funding; and directs
                                           www.regulations.gov. Confidential                       which permits the Fund to draw on the
                                           business information identified and                                                                            the Fund to perform an annual
                                                                                                   money originally allocated in the                      reassessment of policies and
                                           located as set forth above will not be                  Zadroga Act in order to pay for its
                                           placed in the public docket file, nor will                                                                     procedures.
                                                                                                   administrative expenses, beginning on                    Specifically, the statute:
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                                           it be posted online.                                    October 1, 2011.                                         • Extends the deadline for filing a
                                              If you wish to inspect the agency’s                     The Attorney General appointed                      claim from the original deadline of
                                           public docket file in person by                         Sheila L. Birnbaum to serve as Special                 October 3, 2016 to the new deadline of
                                           appointment, please see the FOR                         Master and to administer the Fund. On                  December 18, 2020;
                                           FURTHER INFORMATION CONTACT                             June 21, 2011, the Special Master issued                 • Codifies the definition of ‘‘9/11
                                           paragraph.                                              the Notice of Proposed Rulemaking,                     crash site’’ to reflect the definition of the


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                                           38938            Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations

                                           New York City exposure zone provided                    determined less the amount of any                      previous definition included two
                                           in the 2011 regulations;                                collateral source compensation that the                exceptions: (1) If the victim was married
                                              • Adds new definitions regarding the                 claimant has received or is entitled to                or divorced in accordance with
                                           types of conditions covered by                          receive, thus eliminating the $10,000                  applicable state law on or after January
                                           referencing WTC-related health                          minimum award that the Fund issued                     1 of the year of the victim’s death; or (2)
                                           conditions as defined by Section 3312(a)                for Group A claims in the event that                   If the victim was not required by law to
                                           and 3322(b) of the Public Health Service                collateral offsets exceeded losses.                    file a Federal tax return for the year
                                           Act (42 U.S.C. 300mm–22 and 300mm–                         • Section 104.43 Determination of                   prior to the year of the victim’s death.
                                           32) and specifically excluding mental                   presumed economic loss for decedents                   The updated regulations expand this
                                           health conditions;                                      is revised to account for the $200,000                 definition to include a third exception:
                                              • Establishes two categories of                      annual gross income cap and the                        If the victim had a same-sex spouse who
                                           claims—Group A and Group B—based                        elimination of future medical expenses                 was lawfully married to the victim
                                           on the date the Special Master                          loss as a compensable loss.                            under applicable state law. The 2011
                                           ‘‘postmarks and transmits’’ a final award                  • Section 104.44 Determination of                   regulations were published when
                                           determination to the claimant;                          presumed economic loss for injured                     Section 3 of the Defense of Marriage Act
                                              • Imposes caps on the amount of non-                 claimants is revised to account for the                was in effect, prohibiting the Federal
                                           economic loss that can be computed for                  $200,000 annual gross income cap and                   government from recognizing same-sex
                                           different types of conditions                           the elimination of future medical                      marriages. As such, same-sex married
                                           (categorized as cancer and non-cancer);                 expenses loss as a compensable loss.                   couples could not identify themselves
                                              • Imposes a $200,000 cap on the                         • Section 104.46 Determination of                   as married on their tax returns. Since
                                           annual gross income, as defined in                      presumed noneconomic losses for                        that time, that section was held to be
                                           Section 61 of the Internal Revenue                      injured claimants is revised to reflect                unconstitutional. These updated
                                           Code, used to determine economic loss;                  the noneconomic loss cap of $250,000                   regulations reflect the changed law.
                                              • Directs the Victim Compensation                    for any single type of cancer and a                    They also reflect the Fund’s policy to
                                           Fund to prioritize the compensation of                  noneconomic loss cap of $90,000 for                    treat a same-sex spouse who was legally
                                           claims that present the most debilitating               any single type of non-cancer condition                married to the victim under applicable
                                           physical conditions;                                       • Section 104.51 Payments to                        state law as a spouse for purposes of this
                                              • Eliminates ‘‘future medical expense                eligible individuals is revised to reflect             program.
                                           loss’’ as a compensable economic loss;                  the amount and timing of availability of                  Second, section 104.22(c)(1) has been
                                              • Eliminates any minimum award to                    funding to pay claims and                              revised to remove the requirement that
                                           the extent that collateral source offsets               administrative costs: The                              all claimants shall, at a minimum,
                                           exceed the amount of compensation;                      $2,755,000,000 previously appropriated                 submit all tax returns that were filed for
                                              • Makes the original $2,775,000,000                  over time to be made immediately                       the period beginning three years prior to
                                           appropriation available immediately to                  available and paid as soon as practicable              the year of death or discovery of the
                                           pay claims. Previously, only                            and an additional $4,600,000,000 to be                 injury and ending with the year the
                                           $875,000,000 of this amount was                         available in October 2016. The section                 claim was filed or the year of death.
                                           available through October 3, 2016. It                   also reflects the directive to the Special             Over the course of the program, the
                                           also provides an additional                             Master to prioritize the compensation of               Special Master has found that this
                                           $4,600,000,000 in funding that becomes                  claims that present the most debilitating              requirement can be burdensome in some
                                           available in October 2016; and                          physical conditions. The section further               cases where the tax returns are not
                                              • Directs the Special Master to                      addresses the statutory mandate to                     necessary for determination. The
                                           conduct an annual reassessment of                       conduct an annual reassessment of                      Special Master retains the discretion to
                                           policies and procedures.                                policies and procedures and make                       require the submission of tax returns
                                                                                                   adjustments as necessary to ensure that                where necessary for evaluation of the
                                           B. Revisions to the Rule Conforming to
                                                                                                   total expenditures do not exceed                       claim. For example, the Special Master
                                           Statutory Changes
                                                                                                   available funds.                                       may require the submission of tax
                                              These interim final regulations amend                   • Section 104.62 Time limit on                      returns where a claimant is seeking loss
                                           the Department of Justice’s August 2011                 filing claims is revised to reflect the                of self-employment income or loss of
                                           final regulations in order to reflect                   extended statutory deadline for filing                 partnership income, or in order to
                                           changes required by the Reauthorized                    claims, from October 3, 2016 to                        evaluate whether an individual was
                                           Zadroga Act. Specifically:                              December 18, 2020.                                     identified on a deceased victim’s
                                              • Section 104.2 Eligibility                                                                                 Federal tax return for the year prior to
                                           definitions and requirements is revised                 C. Additional Regulatory Changes To                    the year of the victim’s death.
                                           to include the definition of ‘‘Group A                  Reduce Burdens for Claimants                           Accordingly, the updated regulations
                                           claims’’ and ‘‘Group B claims.’’ It also                  This rule includes four additional                   allow the Special Master discretion to
                                           includes the definition of a ‘‘WTC-                     regulatory changes, not required by the                determine whether and to what extent
                                           Related Physical Health Condition’’, and                statute. All of these changes are                      tax returns should be submitted for a
                                           makes clear that mental health                          designed to benefit claimants or reduce                particular claimant.
                                           conditions are not covered. This section                claimant burden.                                          Third, section 104.45(e) has been
                                           also reflects the codification of the prior               First, in section 104.3(c)(3), the                   added as a new paragraph to address the
                                           regulations in terms of one of the                      definition of ‘‘spouse’’ has been                      determination of noneconomic losses
                                           definitions of the ‘‘9/11 crash site’’—the              expanded. Under the previous                           for claimants who have a WTC-Related
                                           definition of the New York City                         definition, the Special Master was                     Physical Condition and who are found
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                                           exposure zone.                                          required to identify the spouse of the                 eligible for economic loss. The
                                              • Section 104.41 Amount of                           deceased victim as the person who was                  Reauthorized Zadroga Act imposes caps
                                           compensation is revised to reflect the                  reported or who legally could have been                on the amount of noneconomic loss for
                                           statutory mandate that no Group B                       identified as the spouse on the victim’s               an eligible cancer ($250,000) and an
                                           claim shall receive compensation                        Federal tax return for the year prior to               eligible non-cancer condition ($90,000).
                                           greater than the amount of loss                         the year of the victim’s death. The                    The revised regulations clarify that the


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                                                            Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations                                          38939

                                           Special Master shall determine the                      in Part B above, ‘‘Revisions to the Rule               appropriate compensation for eligible
                                           appropriate noneconomic loss for                        Conforming to Statutory Changes’’ are                  Group B claims. Compensation
                                           economic loss claims in the same                        interpretive rules issued by the                       determinations and corresponding
                                           manner that she determines                              Department to advise the public of the                 payments will not be issued until the
                                           noneconomic loss only claims, see                       Department’s construction of the new                   rule is effective. Thus, eligible
                                           section 104.46, taking into account the                 statute. These revisions to the rule                   claimants, particularly those suffering
                                           extent of disability and the fact that                  merely explain or clarify the application              from terminal illness or extreme
                                           different eligible conditions may                       of the substantive law set forth in the                financial hardship, would be harmed by
                                           contribute to the disability.                           Reauthorized Zadroga Act; they do not                  any delay. Second, the regulations that
                                             The regulations further make clear in                 create new rights or impose obligations                the interim final rule modifies were
                                           section 104.46 that the Reauthorized                    independent of the statute. As noted,                  enacted pursuant to notice and
                                           Zadroga Act does not place an aggregate                 the Reauthorized Zadroga Act requires                  comment rulemaking and to a large
                                           cap on noneconomic loss but merely                      revisions to the implementing                          extent reflect changes recently
                                           states that the loss for any type of cancer             regulations including extending the                    mandated by statute. As previously
                                           shall not exceed $250,000 and the loss                  deadline for filing claims, defining                   discussed, the changes made by this
                                           for any type of non-cancer shall not                    different categories of claims (Group A                interim final rule that are not mandated
                                           exceed $90,000. A noneconomic loss                      and Group B), changing certain policies
                                                                                                                                                          by the Reauthorized Zadroga Act reduce
                                           may result from both a cancer and non-                  and procedures for evaluating claims
                                                                                                                                                          certain regulatory burdens on claimants
                                           cancer condition and/or may result from                 and computing compensable losses and
                                                                                                                                                          or otherwise benefit the claimant by
                                           more than one type of cancer. The                       increasing the funding available to pay
                                                                                                   claims, among other things. The interim                alleviating unnecessary document
                                           revised regulations provide that the                                                                           submission requirements and asserting
                                           Special Master has discretion to                        final rule merely incorporates those
                                                                                                   changes and explains certain provisions                the Special Master’s discretion to
                                           consider the effect of multiple cancer
                                                                                                   in more detail, such as those relating to              prioritize the compensation of claims
                                           conditions or multiple cancer and non-
                                                                                                   the filing and evaluation of claims and                based on indicators that demonstrate
                                           cancer conditions in computing the total
                                                                                                   computation of losses for claims defined               severity of the claimant’s eligible
                                           noneconomic loss in such claims.
                                             Fourth, section 104.52 has been                       as Group B under the statute.                          conditions. Third, the interim rule will
                                           revised to remove the requirement that,                    The four additional changes,                        be subject to public comment before its
                                           for a claim filed by a Personal                         described in Part C, ‘‘Additional                      final implementation. The Department
                                           Representative on behalf of a deceased                  Regulatory Changes to Reduce Burdens                   will consider any public comments
                                           victim, the Personal Representative                     for Claimants,’’ similarly are not subject             made following publication of this
                                           shall submit a plan of distribution for                 to formal notice-and-comment                           interim final rule and make any
                                           any award received from the Fund                        requirements. The first change, to                     appropriate adjustments or clarifications
                                           before the payment is authorized.                       section 104.3(c)(3) is interpretive and                in the final rule. Finally, the deadline
                                           Because the Personal Representative has                 clarifies the meaning of the term                      imposed by Congress to implement the
                                           an independent fiduciary obligation to                  ‘‘spouse’’ consistent with law and pre-                regulations is exceedingly strict and
                                           distribute the award in accordance with                 existing Department policy. The second                 therefore the Department has a limited
                                           applicable state law or court order, this               and fourth changes, which eliminate                    period of time within which to update
                                           documentation may not be needed in                      certain documentation requirements,                    the regulations.
                                           every case. Therefore, the revised                      see sections 104.22(c)(1) and 104.52, are                 The APA also permits an agency to
                                           regulations allow the Special Master                    procedural in nature; they eliminate a                 make a rule effective upon date of
                                           discretion to determine whether a                       required component of the                              publication in the Federal Register
                                           distribution plan is required prior to                  documentation submitted with a claim                   where ‘‘good cause’’ exists or for
                                           authorizing the payment authorization                   and instead advise that the Special                    ‘‘interpretive rules and statements of
                                           on a particular claim.                                  Master retains the discretion to ask for
                                                                                                                                                          policy.’’ 5 U.S.C. 553(d). As stated, the
                                                                                                   these documents if needed. Finally, the
                                           Regulatory Certifications                                                                                      Department has determined that it
                                                                                                   addition of section 104.45(e) and the
                                                                                                                                                          would be unnecessary and contrary to
                                           Administrative Procedure Act                            revisions of section 104.46 reflect
                                                                                                                                                          the public interest to engage in full
                                                                                                   general statements of policy; they serve
                                              The Department’s implementation of                   only to advise the public that the                     notice and comment rulemaking before
                                           this rule as an interim final rule, with                Special Master may exercise her                        putting these interim final regulations
                                           provision for post-promulgation public                  discretionary power in certain ways. For               into effect, and that it is in the public
                                           comment, is based on Sections                           these reasons, the interim final rule is               interest to promulgate interim final
                                           553(b)(A), 553(b)(B) and 553(d) of the                  not subject to the formal notice-and-                  regulations. For the same reasons, the
                                           Administrative Procedure Act. 5 U.S.C.                  comment requirements under Section                     Department has determined that there is
                                           553. Under Section 553(b), an agency                    553 of the APA.                                        good cause to make these interim final
                                           may issue a rule without notice of                         Furthermore, an agency may find                     regulations effective immediately upon
                                           proposed rulemaking and the pre-                        good cause to exempt a rule from                       publication in the Federal Register, in
                                           promulgation opportunity for public                     provisions of the APA if it is determined              accordance with Section 553(d) of the
                                           comment where ‘‘good cause’’ exists or                  that those procedures are impracticable,               APA (5 U.S.C. 553(d)). Therefore,
                                           for ‘‘interpretive rules, general                       unnecessary, or contrary to the public                 waiver of the 30-day period prior to the
                                           statements of policy, or rules of agency                interest. (5 U.S.C. 553(b)(B)). The                    rule’s effective date is appropriate here.
                                           organization, procedure, or practice.’’                 Department finds that it is unnecessary                The Department welcomes public
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                                              The revisions made by this interim                   and contrary to the public interest to                 comments on the changes being made
                                           final rule fit within the exceptions to the             seek public comment prior to                           by this interim final rule, and will
                                           requirement for pre-promulgation                        promulgating this interim final rule for               carefully review any comments to
                                           opportunity for notice and comment set                  several reasons. First, delaying the                   ensure that any substantive concerns or
                                           out in Section 553. See 5 U.S.C.                        implementation of the rule would delay                 issues regarding these changes are
                                           553(b)(A). All of the revisions identified              the determination and payment of                       addressed in the final rule.


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                                           38940            Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations

                                           Paperwork Reduction Act of 1995                         Executive Orders 12866 and 13563                       important for the Fund to establish
                                             This rule implements Public Law                       direct agencies to assess all costs and                procedures to screen out ineligible or
                                           114–113 which reauthorizes the                          benefits of available regulatory                       inappropriate claims while keeping
                                           September 11th Victim Compensation                      alternatives and, if regulation is                     administrative expenses as low as
                                           Fund of 2001. In order to be able to                    necessary, to select regulatory                        possible consistent with the goal of
                                                                                                   approaches that maximize net benefits                  ensuring that funds are not diverted to
                                           evaluate claims and provide
                                                                                                   (including potential economic,                         processing ineligible claims in order to
                                           compensation, the Fund will need to
                                                                                                   environmental, public health and safety                maximize the amount of funds available
                                           collect information from an individual
                                                                                                   effects, distributive impacts, and                     for claimants. Finally, based on past
                                           (or a personal representatives of a
                                                                                                   equity). Executive Order 13563                         practice with the operation of the
                                           deceased individual) who suffered
                                                                                                   emphasizes the importance of                           original Fund and the reopened Fund
                                           physical harm or was killed as a result
                                                                                                   quantifying both costs and benefits, of                and the necessity to establish the legal
                                           of the terrorist-related aircraft crashes of
                                                                                                   reducing costs, of harmonizing rules,                  and administrative framework for the
                                           September 11, 2001 or the debris
                                                                                                   and of promoting flexibility. The                      reauthorized Fund, the Department
                                           removal efforts that took place in the
                                                                                                   Department has assessed the costs and                  concludes that there are no viable non-
                                           immediate aftermath of those crashes.                   benefits of this regulation and believes
                                           Accordingly, the Department of Justice,                                                                        regulatory actions that it could take to
                                                                                                   that the regulatory approach selected                  implement the Reauthorized Zadroga
                                           Civil Division will submit an                           maximizes net benefits. As is described
                                           information collection request to the                                                                          Act in a fair and efficient manner.
                                                                                                   more fully in the next paragraph, the
                                           Office of Management and Budget                         economic impact of the rule is a transfer              Time Period for Public Comment
                                           (OMB) for review and clearance in                       of the funds that are being allocated by                 This interim final rule provides for a
                                           accordance with the emergency review                    the Federal government to any                          30-day public comment period after
                                           procedures of the Paperwork Reduction                   individual (or a personal representative               publication. The rule is an interpretive
                                           Act of 1995. This request will seek                     of a deceased individual) who suffered                 rule that merely clarifies or explains the
                                           reinstatement of the prior information                  physical harm or was killed as a result                statute or that sets out procedural rules
                                           collection authorized under Public Law                  of the terrorist-related aircraft crashes of           or general statements of policy.
                                           111–347. The Department has also                        September 11, 2001, or the rescue and                  Therefore, an extended period of public
                                           published a Notice in the Federal                       recovery efforts during the immediate                  comment is not necessary. A 30-day
                                           Register soliciting public comment on                   aftermath of such crashes or the debris                comment period will afford the public
                                           the information collection associated                   removal efforts that took place in the                 a meaningful opportunity to comment
                                           with this rulemaking. 81 FR 20674                       immediate aftermath of those crashes.                  on the interim final rule.
                                           (April 8, 2016).
                                                                                                   Assessment of Benefits, Costs, and                     Executive Order 13132—Federalism
                                           Regulatory Flexibility Act                              Alternatives                                              This regulation will not have
                                              These regulations set forth procedures                 As required by Executive Order 13563                 substantial direct effects on the States,
                                           by which the Federal government will                    and Executive Order 12866 for                          on the relationship between the national
                                           award compensation benefits to eligible                 economically significant regulatory                    government and the States, or on
                                           victims of the September 11, 2001                       actions, the Department has assessed the               distribution of power and
                                           terrorist attacks. Under 5 U.S.C. 601(6),               benefits and costs anticipated from this               responsibilities among the various
                                           the term ‘‘small entity’’ does not include              rulemaking and considered whether                      levels of government. Therefore, in
                                           the Federal government, the party                       there are reasonably feasible alternatives             accordance with Executive Order 13132,
                                           charged with incurring the costs                        to this rulemaking, including                          it is determined that this rule does not
                                           attendant to the implementation and                     considering whether there are                          have sufficient federalism implications
                                           administration of the Victim                            reasonably viable non-regulatory actions               to warrant the preparation of a
                                           Compensation Fund. Because this rule                    that could be taken in lieu of this                    Federalism Assessment. However, the
                                           is being adopted as an interim final rule,              rulemaking. The purpose of this                        Department of Justice has worked
                                           a Regulatory Flexibility analysis is not                rulemaking is to provide the legal and                 cooperatively with state and local
                                           required. This rule provides                            administrative framework necessary to                  officials in the affected communities in
                                           compensation to individuals, not to                     provide compensation to any individual                 the preparation of this rule. Also, the
                                           entities.                                               (or a personal representative of a                     Department individually notified
                                                                                                   deceased individual) who suffered                      national associations representing
                                           Executive Orders 12866 and 13563—
                                                                                                   physical harm or was killed as a result                elected officials regarding this
                                           Regulatory Review
                                                                                                   of the terrorist-related aircraft crashes of           rulemaking.
                                              This regulation has been drafted and                 September 11, 2001 or the debris
                                           reviewed in accordance with Executive                   removal efforts that took place in the                 Executive Order 12988—Civil Justice
                                           Order 12866, ‘‘Regulatory Planning and                  immediate aftermath of those crashes, as               Reform
                                           Review’’ section 1(b), Principles of                    provided by Title II of the Zadroga Act                  This regulation meets the applicable
                                           Regulation and in accordance with                       and the Reauthorized Zadroga Act. The                  standards set forth in sections 3(a) and
                                           Executive Order 13563 ‘‘Improving                       primary benefits and costs of this                     3(b)(2) of Executive Order 12988.
                                           Regulation and Regulatory Review’’                      rulemaking are both set by statute as
                                           section 1(b) General Principles of                      Congress has appropriated a capped                     Unfunded Mandates Reform Act of 1995
                                           Regulation. The Department of Justice                   amount for this program—an initial                       This rule will not result in the
                                           has determined that this rule is an                     $2.775 billion payable under the                       expenditure by State, local and tribal
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                                           ‘‘economically significant regulatory                   Zadroga Act and an additional $4.6                     governments, in the aggregate, or by the
                                           action’’ under Executive Order 12866,                   billion under the Reauthorized Zadroga                 private sector, of $100,000,000 or more
                                           section 3(f), Regulatory Planning and                   Act. Because the $7.375 billion                        in any one year, and it will not
                                           Review, and accordingly this rule has                   appropriated by Congress for the Fund                  significantly or uniquely affect small
                                           been reviewed by the Office of                          must pay for claimant awards as well as                governments. Therefore, no actions were
                                           Management and Budget. Further, both                    the Fund’s administrative expenses, it is              deemed necessary under the provisions


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                                                            Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations                                           38941

                                           of the Unfunded Mandates Reform Act                     104.52 Distribution of award to decedent’s             final award determination by sending a
                                           of 1995.                                                    beneficiaries.                                     letter postmarked and transmitted on or
                                                                                                   Subpart F—Limitations                                  before December 17, 2015 indicating the
                                           Small Business Regulatory Enforcement
                                                                                                   104.61 Limitation on civil actions.                    total amount of compensation to which
                                           Fairness Act of 1996
                                                                                                   104.62 Time limit on filing claims.                    the claimant is entitled for that claim,
                                             This rule is not a major rule as                      104.63 Subrogation.                                    pursuant to the regulations and
                                           defined by section 804 of the Small                                                                            methodology in effect on December 17,
                                           Business Regulatory Enforcement                         Subpart G—Measures To Protect the
                                                                                                   Integrity of the Compensation Program
                                                                                                                                                          2015.
                                           Fairness Act of 1996. This rule will not                                                                          (2) Group B claims. A claim is a
                                           result in an annual effect on the                       104.71 Procedures to prevent and detect                Group B claim if it is not a Group A
                                           economy of $100,000,000 or more, a                          fraud.
                                                                                                                                                          claim. An individual can have both
                                           major increase in costs or prices, or                   Subpart H—Attorney Fees                                Group A claims and Group B claims.
                                           significant adverse effects on                          104.81 Limitation on attorney fees.                       (b) Eligible claimants. The term
                                           competition, employment, investment,                                                                           eligible claimants means:
                                                                                                     Authority: Title IV of Pub. L. 107–42, 115
                                           productivity, innovation, or on the                                                                               (1) Individuals present at a 9/11 crash
                                                                                                   Stat. 230, 49 U.S.C. 40101 note; Title II of
                                           ability of United States-based                          Pub. L. 111–347, 124 Stat. 3623; Title IV of           site at the time of or in the immediate
                                           companies to compete with foreign-                      Pub. L. 114–113, 129 Stat. 2242.                       aftermath of the terrorist-related aircraft
                                           based companies in domestic and                                                                                crashes and who suffered physical
                                           export markets.                                         Subpart A—General; Eligibility                         harm, as defined herein, as a direct
                                                                                                                                                          result of the crashes or the rescue and
                                           List of Subjects in 28 CFR Part 104                     § 104.1    Purpose.                                    recovery efforts or debris removal;
                                             Disaster assistance, Disability                          This part implements the provisions                    (2) The Personal Representatives of
                                           benefits, Terrorism.                                    of the September 11th Victim                           deceased individuals aboard American
                                           ■ Accordingly, for the reasons set forth
                                                                                                   Compensation Fund of 2001, Title IV of                 Airlines flights 11 or 77 and United
                                           in the preamble, chapter I of Title 28 of               Public Law 107–42, 115 Stat. 230 (Air                  Airlines flights 93 or 175; and
                                           the Code of Federal Regulations is                      Transportation Safety and System                          (3) The Personal Representatives of
                                           amended by revising part 104 to read as                 Stabilization Act), as amended by the                  individuals who were present at a 9/11
                                           follows:                                                James Zadroga 9/11 Health and                          crash site at the time of or in the
                                                                                                   Compensation Act of 2010, Title II of                  immediate aftermath of the crashes and
                                           PART 104—SEPTEMBER 11TH VICTIM                          Public Law 111–347, and as amended                     who died as a direct result of the
                                           COMPENSATION FUND                                       by the James Zadroga 9/11 Victim                       terrorist-related aircraft crash or the
                                                                                                   Compensation Fund Reauthorization                      rescue and recovery efforts during the
                                           Subpart A—General; Eligibility                          Act, Division O, Title IV of Public Law                immediate aftermath of such crashes or
                                           Sec.                                                    114–113 (the ‘‘Act’’) to provide full                  the debris removal during the
                                           104.1 Purpose.                                          compensation to eligible individuals                   immediate aftermath of such crashes.
                                           104.2 Eligibility definitions and                       who were physically injured (as defined                   (4) The term eligible claimants does
                                                requirements.                                      herein) as a result of the terrorist-related           not include any individual or
                                           104.3 Other definitions.
                                           104.4 Personal Representative.
                                                                                                   aircraft crashes of September 11, 2001,                representative of an individual who is
                                           104.5 Foreign claims.                                   or the rescue and recovery efforts during              identified to have been a participant or
                                           104.6 Amendments to this part.                          the immediate aftermath of such crashes                conspirator in the terrorist-related
                                                                                                   or debris removal during the immediate                 crashes of September 11.
                                           Subpart B—Filing for Compensation                       aftermath of those crashes, and to the                    (c) Immediate aftermath. The term
                                           104.21 Presumptively covered conditions.                ‘‘personal representatives’’ of those who              immediate aftermath means any period
                                           104.22 Filing for compensation.                         were killed as a result of the crashes or              beginning with the terrorist-related
                                           Subpart C—Claim Intake, Assistance, and                 the rescue and recovery efforts during                 aircraft crashes of September 11, 2001,
                                           Review Procedures                                       the immediate aftermath of such crashes                and ending on May 30, 2002.
                                           104.31 Procedure for claims evaluation.                 or debris removal during the immediate                    (d) Physical harm. The term physical
                                           104.32 Eligibility review.                              aftermath of such crashes. All                         harm shall mean:
                                           104.33 Hearing.                                         compensation provided through the                         (1) A WTC-Related Physical Health
                                           104.34 Publication of awards.                           Victim Compensation Fund will be on                    Condition; or
                                           104.35 Claims deemed abandoned by                       account of personal physical conditions,                  (2) A physical injury to the body
                                               claimants.                                          physical injuries or death. The                        resulting from the 9/11 attacks that was
                                           Subpart D—Amount of Compensation for                    provisions of these regulations that                   treated by a medical professional within
                                           Eligible Claimants                                      relate to filing and evaluation of claims,             a reasonable time from the date of
                                                                                                   determination of eligibility, and                      discovering such harm and is verifiable
                                           104.41 Amount of compensation.
                                           104.42 Applicable state law.                            determination of compensable loss shall                by medical records created by or at the
                                           104.43 Determination of presumed                        apply to all claims that are defined as                direction of the medical professional
                                                economic loss for decedents.                       Group B claims in the Act and in these                 who provided the medical care
                                           104.44 Determination of presumed                        regulations. Eligibility and                           contemporaneously with the care; but
                                                noneconomic losses for claims on behalf            compensation for Group A claims has                       (3) Not including any Mental Health
                                                of decedents.                                      been determined prior to the effective                 Condition.
                                           104.45 Determination of presumed                                                                                  (e) Mental Health Condition. The term
                                                economic loss for injured claimants.
                                                                                                   date of these regulations, pursuant to
                                                                                                   the regulations previously in effect.                  Mental Health Condition shall mean a
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                                           104.46 Determination of presumed                                                                               mental health condition described in
                                                noneconomic losses for injured                     § 104.2 Eligibility definitions and                    paragraph (1)(A)(ii) or (3)(B) of section
                                                claimants.                                         requirements.
                                           104.47 Collateral sources.
                                                                                                                                                          3312(a) of the Public Health Service Act
                                                                                                     (a) Categories of claims—(1) Group A                 (42 U.S.C. 300 mm–22(a)), or any mental
                                           Subpart E—Payment of Claims                             claims. A claim is a Group A claim if                  health condition certified under section
                                           104.51 Payments to eligible individuals.                the Special Master has transmitted a                   3312(b)(2)(B)(iii) of such Act (including


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                                           38942            Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations

                                           such certification as applied under                     his or her Federal tax return for the year                (1) An individual appointed by a
                                           section 3322(a) (42 U.S.C. 300mm–32(a)                  prior to the year of the victim’s death (or            court of competent jurisdiction as the
                                           of such Act), or a mental health                        those persons who legally could have                   Personal Representative of the decedent
                                           condition described in section                          been identified by the victim on his or                or as the executor or administrator of
                                           3322(b)(2) (42 U.S.C. 300mm–32(b)(2))                   her Federal tax return for the year prior              the decedent’s will or estate.
                                           of such Act, or any other mental health                 to the year of the victim’s death) unless:                (2) In the event that no Personal
                                           condition.                                                 (1) The claimant demonstrates that a                Representative or executor or
                                              (f) Personal Representative. The term                minor child of the victim was born or                  administrator has been appointed by
                                           Personal Representative shall mean the                  adopted on or after January 1 of the year              any court of competent jurisdiction, and
                                           person determined to be the Personal                    of the victim’s death;                                 such issue is not the subject of pending
                                           Representative under § 104.4 of this                       (2) Another person became a                         litigation or other dispute, the Special
                                           part.                                                   dependent in accordance with then-                     Master may, in her discretion,
                                              (g) WTC Health Program. The term                     applicable law on or after January 1 of                determine that the Personal
                                           WTC Health Program means the World                      the year of the victim’s death; or                     Representative for purposes of
                                           Trade Center Health Program                                (3) The victim was not required by                  compensation by the Fund is the person
                                           established by Title I of Public Law                    law to file a Federal income tax return                named by the decedent in the
                                           111–347 (codified at Title XXXIII of the                for the year prior to the year of the                  decedent’s will as the executor or
                                           Public Health Service Act, 42 U.S.C.                    victim’s death.                                        administrator of the decedent’s estate. In
                                           300mm through 300mm–61).                                   (c) Spouse. The Special Master shall                the event no will exists, the Special
                                              (h) WTC Program Administrator. The                   identify as the spouse of a victim the                 Master may, in her discretion,
                                           WTC Program Administrator shall mean                    person reported as spouse on the                       determine that the Personal
                                           the WTC Program Administrator as                        victim’s Federal tax return for the year               Representative for purposes of
                                           defined in section 3306 of the Public                   prior to the year of the victim’s death (or            compensation by the Fund is the first
                                           Health Service Act (42 U.S.C. 300mm–                                                                           person in the line of succession
                                                                                                   the person who legally could have been
                                           5).                                                                                                            established by the laws of the
                                                                                                   identified by the victim on his or her
                                              (i) WTC-Related Physical Health                                                                             decedent’s domicile governing
                                                                                                   Federal tax return for the year prior to
                                           Condition. The term WTC-Related                                                                                intestacy.
                                                                                                   the year of the victim’s death) unless:                   (b) Notice to beneficiaries. (1) Any
                                           Physical Health Condition means a                          (1) The victim was married or
                                           WTC-related health condition listed in                                                                         purported Personal Representative
                                                                                                   divorced in accordance with applicable                 must, before filing an Eligibility Form,
                                           Section 3312(a) of the Public Health                    state law on or after January 1 of the
                                           Service Act (42 U.S.C. 300mm–22(a)),                                                                           provide written notice of the claim
                                                                                                   year of the victim’s death; or                         (including a designated portion of the
                                           including the conditions listed in
                                                                                                      (2) The victim was not required by                  Eligibility Form) to the immediate
                                           section 3322(b) of such Act (42 U.S.C.
                                                                                                   law to file a Federal income tax return                family of the decedent (including, but
                                           300mm–32(b)), and including those
                                                                                                   for the year prior to the year of the                  not limited to, the decedent’s spouse,
                                           health conditions added by the WTC
                                                                                                   victim’s death.                                        former spouses, children, other
                                           Program Administrator through
                                                                                                      (3) The Special Master shall identify               dependents, and parents), to the
                                           rulemaking pursuant to the Public
                                                                                                   as the spouse of a victim any same-sex                 executor, administrator, and
                                           Health Service Act, 42 CFR part 88,
                                                                                                   spouse who was lawfully married to the                 beneficiaries of the decedent’s will, and
                                           except that such term shall not include
                                                                                                   victim under applicable state law.                     to any other persons who may
                                           any Mental Health Condition.
                                              (j) 9/11 crash site. The term 9/11 crash                (d) The Act. The Act, as used in this               reasonably be expected to assert an
                                           site means:                                             part, shall mean Public Law 107–42, 115                interest in an award or to have a cause
                                              (1) The World Trade Center site,                     Stat. 230 (‘‘Air Transportation Safety                 of action to recover damages relating to
                                           Pentagon site, and Shanksville,                         and System Stabilization Act’’), 49                    the wrongful death of the decedent.
                                           Pennsylvania site; or                                   U.S.C. 40101 note, as amended by the                      (2) Personal delivery or transmission
                                              (2) The buildings or portions of                     James Zadroga 9/11 Health and                          by certified mail, return receipt
                                           buildings that were destroyed as a result               Compensation Act of 2010, Title II of                  requested, shall be deemed sufficient
                                           of the terrorist-related airplane crashes               Public Law 111–347 and as further                      notice under this provision. The claim
                                           of September 11, 2001; or                               amended by the James Zadroga 9/11                      forms shall require that the purported
                                              (3) The area in Manhattan that is                    Victim Compensation Fund                               Personal Representative certify that
                                           south of the line that runs along Canal                 Reauthorization Act, Division O, Title                 such notice (or other notice that the
                                           Street from the Hudson River to the                     IV of Public Law 114–113.                              Special Master deems appropriate) has
                                           intersection of Canal Street and East                      (e) Victim. The term victim shall                   been given. In addition, as provided in
                                           Broadway, north on East Broadway to                     mean an eligible injured claimant or a                 § 104.21(b)(5) of this part, the Special
                                           Clinton Street, and east on Clinton                     decedent on whose behalf a claim is                    Master may publish a list of individuals
                                           Street to the East River; and                           brought by an eligible Personal                        who have filed Eligibility Forms and the
                                              (4) Any area related to, or along,                   Representative.                                        names of the victims for whom
                                           routes of debris removal, such as barges                   (f) Substantially Complete. A claim                 compensation is sought, but shall not
                                           and Fresh Kills.                                        becomes substantially complete when,                   publish the content of any such form.
                                                                                                   in the opinion of the Special Master or                   (c) Objections to Personal
                                           § 104.3   Other definitions.                            her designee, the claim contains                       Representatives. Objections to the
                                             (a) Beneficiary. The term beneficiary                 sufficient information and                             authority of an individual to file as the
                                           shall mean a person to whom the                         documentation to determine both the                    Personal Representative of a decedent
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                                           Personal Representative shall distribute                claimant’s eligibility and, if the claimant            may be filed with the Special Master by
                                           all or part of the award under § 104.52                 is eligible, an appropriate award.                     parties who assert a financial interest in
                                           of this part.                                                                                                  the award up to 30 days following the
                                              (b) Dependents. The Special Master                   § 104.4    Personal Representative.                    filing by the Personal Representative. If
                                           shall identify as dependents those                        (a) In general. The Personal                         timely filed, such objections shall be
                                           persons so identified by the victim on                  Representative shall be:                               treated as evidence of a ‘‘dispute’’


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                                                            Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations                                           38943

                                           pursuant to paragraph (d) of this                       the WTC-Related Physical Health                           (3) The Eligibility Form may require
                                           section.                                                Conditions. Claims may then be                         claimants to provide the following
                                             (d) Disputes as to identity. The                      amended pursuant to § 104.22(e)(ii).                   proof:
                                           Special Master shall not be required to                    (c) Conditions other than                              (i) Proof of death: Death certificate or
                                           arbitrate, litigate, or otherwise resolve               presumptively covered conditions. A                    similar official documentation;
                                           any dispute as to the identity of the                   claimant may also be eligible for                         (ii) Proof of presence at site:
                                           Personal Representative. In the event of                payment under § 104.51 where the                       Documentation sufficient to establish
                                           a dispute over the appropriate Personal                 claimant has at least one WTC-Related                  presence at a 9/11 crash site, which may
                                           Representative, the Special Master may                  Physical Health Condition and the                      include, without limitation, a death
                                           suspend adjudication of the claim or, if                Special Master determines that the                     certificate, proof of residence, such as a
                                           sufficient information is provided,                     claimant—                                              lease or utility bill, records of
                                           calculate the appropriate award and                        (1) Has a physical injury to the body               employment or school attendance,
                                           authorize payment, but place in escrow                  that resulted from the terrorist-related               contemporaneous medical records,
                                           any payment until the dispute is                        air crashes of September 11, 2001 or                   contemporaneous records of federal,
                                           resolved either by agreement of the                     rescue and recovery or debris removal                  state, city or local government, a pay
                                           disputing parties or by a court of                      efforts during the immediate aftermath                 stub, official personnel roster, site
                                           competent jurisdiction. Alternatively,                  of such crashes or presents                            credentials, an affidavit or declaration of
                                           the disputing parties may agree in                      extraordinary circumstances; and                       the decedent’s or injured claimant’s
                                           writing to the identity of a Personal                                                                          employer, or other sworn statement (or
                                                                                                      (2) Is otherwise eligible for payment.
                                           Representative to act on their behalf,                                                                         unsworn statement complying with 28
                                           who may seek and accept payment from                    § 104.22    Filing for compensation.                   U.S.C. 1746) regarding the presence of
                                           the Fund while the disputing parties                       (a) Compensation form; ‘‘filing.’’ A                the victim;
                                           work to settle their dispute.                           compensation claim shall be deemed                        (iii) Proof of physical harm:
                                                                                                   ‘‘filed’’ for purposes of section 405(b)(3)            Certification of a conclusion by the
                                           § 104.5   Foreign claims.                                                                                      WTC Health Program that the claimant
                                             In the case of claims brought by or on                of the Act (providing that the Special
                                                                                                   Master shall issue a determination                     suffers from a WTC-Related Physical
                                           behalf of foreign citizens, the Special                                                                        Health Condition and is eligible for
                                           Master may alter the requirements for                   regarding the matters that were the
                                                                                                   subject of the claim not later than 120                treatment under the WTC Health
                                           documentation set forth herein to the                                                                          Program, or verification by the WTC
                                           extent such materials are unavailable to                calendar days after the date on which a
                                                                                                   claim is filed), and for any time periods              Program Administrator that the claimant
                                           such foreign claimants.                                                                                        suffers from a WTC-Related Physical
                                                                                                   in this part, when it is substantially
                                           § 104.6   Amendments to this part.                      complete.                                              Health Condition, or other credible
                                                                                                                                                          medical records from a licensed medical
                                             All claims will be processed in                          (b) Eligibility Form. The Special
                                                                                                                                                          professional.
                                           accordance with the current provisions                  Master shall develop an Eligibility                       (iv) Personal Representative: Copies of
                                           of this part.                                           Form, which may be a portion of a                      relevant legal documentation, including
                                                                                                   complete claim form, that will require                 court orders; letters testamentary or
                                           Subpart B—Filing for Compensation                       the claimant to provide information                    similar documentation; proof of the
                                           § 104.21 Presumptively covered                          necessary for determining the claimant’s               purported Personal Representative’s
                                           conditions.                                             eligibility to recover from the Fund.                  relationship to the decedent; copies of
                                             (a) In general. The Special Master                       (1) The Eligibility Form may require                wills, trusts, or other testamentary
                                           shall maintain and publish on the                       that the claimant certify that he or she               documents; and information regarding
                                           Fund’s Web site a list of presumptively                 has dismissed any pending lawsuit                      other possible beneficiaries as requested
                                           covered conditions that resulted from                   seeking damages as a result of the                     by the Eligibility Form;
                                           the terrorist-related air crashes of                    terrorist-related airplane crashes of                     (v) Any other information that the
                                           September 11, 2001, or rescue and                       September 11, 2001, or for damages                     Special Master deems necessary to
                                           recovery or debris removal efforts                      arising from or related to debris removal              determine the claimant’s eligibility.
                                           during the immediate aftermath of such                  (except for actions seeking collateral                    (vi) The Special Master may also
                                           crashes. The list shall consist of the                  source benefits) no later than January 2,              require waivers, consents, or
                                           WTC-Related Physical Health                             2011 and that there is no pending                      authorizations from claimants to obtain
                                           Conditions that resulted from the                       lawsuit brought by a dependent, spouse,                directly from third parties tax returns,
                                           terrorist-related air crashes of September              or beneficiary of the victim.                          medical information, employment
                                           11, 2001 or rescue and recovery or                         (2) The Special Master may require as               information, or other information that
                                           debris removal efforts during the                       part of the notice requirement pursuant                the Special Master deems relevant in
                                           immediate aftermath of such crashes.                    to § 104.4(b) that the Personal                        determining the claimant’s eligibility or
                                           Group B claims shall be eligible for                    Representative of the deceased                         award, and may request an opportunity
                                           compensation only if the Special Master                 individual provide copies of a                         to review originals of documents
                                           determines based on the evidence                        designated portion of the Eligibility                  submitted in connection with the Fund.
                                           presented that a claimant who seeks                     Form to the immediate family of the                       (vii) The Special Master may publish
                                           compensation for physical harm has at                   decedent (including, but not limited to,               a list of individuals who have filed
                                           least one WTC-Related Physical Health                   the spouse, former spouses, children,                  Eligibility Forms on behalf of a deceased
                                           Condition, with respect to a deceased                   other dependents, and parents), to the                 victim and the names of the deceased
                                           individual, the cause of such                           executor, administrator, and                           victims for whom compensation is
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                                           individual’s death is determined at least               beneficiaries of the decedent’s will, and              sought, but shall not publish the content
                                           in part to be attributable to a WTC-                    to any other persons who may                           of any such form.
                                           Related Physical Health Condition.                      reasonably be expected to assert an                       (c) Personal Injury Compensation
                                             (b) Updates. The Special Master shall                 interest in an award or to have a cause                Form and Death Compensation Form.
                                           update the list of presumptively covered                of action to recover damages relating to               The Special Master shall develop a
                                           conditions to conform to any changes in                 the wrongful death of the decedent.                    Personal Injury Compensation Form,


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                                           38944            Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations

                                           which may be a portion of a complete                      (1) An injury or loss that the claimant              decision to the Special Master or her
                                           claim form, that each injured claimant                  had not suffered (or did not reasonably                designee by filing an eligibility appeal
                                           must submit. The Special Master shall                   know the claimant suffered) at the time                within 30 days on forms created by the
                                           also develop a Death Compensation                       the claimant filed the previous claim;                 office of the Special Master.
                                           Form, which may be a portion of a                         (2) A condition that the Special
                                                                                                                                                          § 104.33   Hearing.
                                           complete claim form, that each Personal                 Master has identified and published in
                                           Representative must submit. These                       accordance with 104.21(a), since the                      (a) Conduct of hearings. Hearings
                                           forms shall require the claimant to                     time the claimant filed the previous                   shall be before the Special Master or her
                                           provide certain information that the                    claim, as a presumptively covered                      designee. The objective of hearings shall
                                           Special Master deems necessary to                       condition;                                             be to permit the claimant to present
                                           determining the amount of any award,                      (3) An injury for which the claimant                 information or evidence that the
                                           including information concerning                        was previously compensated by the                      claimant believes is necessary to a full
                                           income, collateral sources, benefits,                   Fund, but only if that injury has                      understanding of the claim. The
                                           settlements and attorneys’ fees relating                substantially worsened, resulting in                   claimant may request that the Special
                                           to civil actions described in section                   damages or loss that was not previously                Master or her designee review any
                                           405(c)(3)(C)(iii) of the Act, and other                 compensated.                                           evidence relevant to the determination
                                           financial information, and shall require                  (f) Provisions of information by third               of the award, including without
                                           the claimant to state the factual basis for             parties. Any third party having an                     limitation: The nature and extent of the
                                           the amount of compensation sought. It                   interest in a claim brought by a Personal              claimant’s injury; evidence of the
                                           shall also allow the claimant to submit                 Representative may provide written                     claimant’s presence at a 9/11 crash site;
                                           certain other information that may be                   statements or information regarding the                factors and variables used in calculating
                                           relevant, but not necessary, to the                     Personal Representative’s claim. The                   economic loss; the identity of the
                                           determination of the amount of any                      Claims Evaluator or the Special Master                 victim’s spouse and dependents; the
                                           award.                                                  or the Special Master’s designee may, at               financial needs of the claimant, facts
                                              (1) The Special Master may ask                       his or her discretion, include the written             affecting noneconomic loss; and any
                                           claimants to submit certain tax returns                 statements or information as part of the               factual or legal arguments that the
                                           or tax transcripts for returns that the                 claim.                                                 claimant contends should affect the
                                           Special Master deems appropriate for                                                                           award. Claimants shall be entitled to
                                           determination of an award. The Special                  Subpart C—Claim Intake, Assistance,                    submit any statements or reports in
                                           Master may also require waivers,                        and Review Procedures                                  writing. The Special Master or her
                                           consents, or authorizations from                                                                               designee may require authentication of
                                           claimants to obtain directly from third                 § 104.31    Procedure for claims evaluation.           documents, including medical records
                                           parties medical information,                               (a) Initial review. Claims Evaluators               and reports, and may request and
                                           employment information, or other                        shall review the forms filed by the                    consider information regarding the
                                           information that the Special Master                     claimant and either deem the claim                     financial resources and expenses of the
                                           deems relevant to determining the                       ‘‘filed’’ or notify the claimant of any                victim’s family or other material that the
                                           amount of any award.                                    deficiency in the forms or any required                Special Master or her designee deems
                                              (2) Claimants may attach to the                      documents.                                             relevant.
                                           ‘Personal Injury Compensation Form’’ or                    (b) Procedure. The Claims Evaluator                    (b) Location and duration of hearings.
                                           ‘‘Death Compensation Form’’ any                         shall determine eligibility and the                    The hearings shall, to the extent
                                           additional statements, documents or                     claimant’s presumed award pursuant to                  practicable, be scheduled at times and
                                           analyses by physicians, experts,                        §§ 104.43 to 104.46 of this part and                   in locations convenient to the claimant
                                           advisors, or any other person or entity                 notify the claimant in writing of the                  or his or her representative. The
                                           that the claimant believes may be                       eligibility determination, or the amount               hearings shall be limited in length to a
                                           relevant to a determination of                          of the presumed award as applicable,                   time period determined by the Special
                                           compensation.                                           and the right to request a hearing before              Master or her designee.
                                              (d) Submission of a claim. Section                   the Special Master or her designee                        (c) Witnesses, counsel, and experts.
                                           405(c)(3)(C) of the Act provides that                   under § 104.33 of this part. After an                  Claimants shall be permitted, but not
                                           upon the submission of a claim under                    eligible claimant has been notified of                 required, to present witnesses,
                                           the Fund, the claimant waives the right                 the presumed award, within 30 days the                 including expert witnesses. The Special
                                           to file a civil action (or to be a party to             claimant may either accept the                         Master or her designee shall be
                                           an action) in any Federal or State court                presumed compensation determination                    permitted to question witnesses and
                                           for damages sustained as a result of the                as the final determination and request                 examine the credentials of experts. The
                                           terrorist-related aircraft crashes of                   payment, or may instead request a                      claimant shall be entitled to be
                                           September 11, 2001, or debris removal,                  review before the Special Master or her                represented by an attorney in good
                                           except for civil actions to recover                     designee pursuant to § 104.33.                         standing, but it is not necessary that the
                                           collateral source obligations and civil                 Claimants found to be ineligible may                   claimant be represented by an attorney.
                                           actions against any person who is a                     appeal pursuant to § 104.32.                           All testimony shall be taken under oath.
                                           knowing participant in any conspiracy                      (c) Multiple claims from the same                      (d) Waivers. The Special Master shall
                                           to hijack any aircraft or commit any                    family. The Special Master may treat                   have authority and discretion to require
                                           terrorist act. A claim shall be deemed                  claims brought by or on behalf of two                  any waivers necessary to obtain more
                                           submitted for purposes of section                       or more members of the same immediate                  individualized information on specific
                                           405(c)(3)(C) of the Act when the                        family as related or consolidated claims               claimants.
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                                           Eligibility Form is deemed filed,                       for purposes of determining the amount                    (e) Award Appeals. For award
                                           regardless of whether any time limits                   of any award.                                          appeals, the Special Master or her
                                           are stayed or tolled.                                                                                          designee shall make a determination
                                              (e) Amendment of claims. A claimant                  § 104.32    Eligibility review.                        whether:
                                           who has previously submitted a claim                      Any claimant deemed ineligible by                       (1) There was an error in determining
                                           may amend such claim to include:                        the Claims Evaluator may appeal that                   the presumptive award, either because


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                                                            Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations                                         38945

                                           the claimant’s individual criteria were                 compensation by the amount of                          that she deems appropriate, including
                                           misapplied or for another reason; or                    collateral source compensation the                     published pay scales for victims who
                                             (2) The claimant presents                             claimant (or, in the case of a Personal                were government or military employees.
                                           extraordinary circumstances not                         Representative, the victim’s                           In computing any loss of earnings due
                                           adequately addressed by the                             beneficiaries) has received or is entitled             to physical harm as defined herein the
                                           presumptive award.                                      to receive as a result of the terrorist-               Special Master shall, for each year for
                                             (f) Determination. The Special Master                 related aircraft crashes of September 11,              which any loss of earnings or other
                                           shall notify the claimant in writing of                 2001. In no event shall a Group B claim                benefits related to employment is
                                           the final amount of the award, but need                 receive an amount of compensation that                 computed, limit the annual past or
                                           not create or provide any written record                is greater than the amount of loss                     projected future gross income of the
                                           of the deliberations that resulted in that              determined pursuant to these                           decedent to an amount that is not
                                           determination. There shall be no further                regulations less the amount of any                     greater than $200,000. For purposes of
                                           review or appeal of the Special Master’s                collateral source compensation that the                the computation of loss of earnings,
                                           determination. In notifying the claimant                claimant has received or is entitled to                annual gross income shall have the
                                           of the final amount of the award, the                   receive for such claim as a result of the              meaning given such term in section 61
                                           Special Master may designate the                        terrorist related aircraft crashes of                  of the Internal Revenue Code of 1986. In
                                           portions or percentages of the final                    September 11, 2001 for the Group B                     cases where the victim was a minor
                                           award that are attributable to economic                 claim.                                                 child, the Special Master may assume
                                           loss and non-economic loss,                                                                                    an average income for the child
                                           respectively, and may provide such                      § 104.42    Applicable state law.
                                                                                                                                                          commensurate with the average income
                                           other information as appropriate to                       The phrase ‘‘to the extent recovery for              of all wage earners in the United States.
                                           provide adequate guidance for a court of                such loss is allowed under applicable                  For victims who were members of the
                                           competent jurisdiction and a personal                   state law,’’ as used in the statute’s                  armed services or government
                                           representative.                                         definition of economic loss in section                 employees such as firefighters or police
                                                                                                   402(5) of the Act, is interpreted to mean              officers, the Special Master may
                                           § 104.34   Publication of awards.
                                                                                                   that the Special Master is not permitted               consider all forms of compensation (or
                                             The Special Master reserves the right                 to compensate claimants for those
                                           to publicize the amounts of some or all                                                                        pay) to which the victim was entitled.
                                                                                                   categories or types of economic losses                 For example, military service members’
                                           of the awards, but shall not publish the                that would not be compensable under
                                           name of the claimants or victims that                                                                          and uniformed service members’
                                                                                                   the law of the state that would be                     compensation includes all of the various
                                           received each award. If published, these                applicable to any tort claims brought by
                                           decisions would be intended by the                                                                             components of compensation,
                                                                                                   or on behalf of the victim.                            including, but not limited to, basic pay
                                           Special Master as general guides for
                                           potential claimants and should not be                   § 104.43 Determination of presumed                     (BPY), basic allowance for housing
                                           viewed as precedent binding on the                      economic loss for decedents.                           (BAH), basic allowance for subsistence
                                           Special Master or her staff.                              In reaching presumed determinations                  (BAS), federal income tax advantage
                                                                                                   for economic loss for Personal                         (TAD), overtime bonuses, differential
                                           § 104.35 Claims deemed abandoned by                                                                            pay, and longevity pay.
                                           claimants.
                                                                                                   Representatives bringing claims on
                                                                                                   behalf of eligible decedents, the Special                 (b) Medical expense loss. This loss
                                             The Special Master and her staff will                 Master shall consider sums                             equals the documented past out-of-
                                           endeavor to evaluate promptly any                                                                              pocket medical expenses that were
                                                                                                   corresponding to the following:
                                           information submitted by claimants.                       (a) Loss of earnings or other benefits               incurred as a result of the eligible
                                           Nonetheless, it is the responsibility of                related to employment. The Special                     physical harm suffered by the decedent
                                           the claimant to keep the Special Master                 Master, as part of the process of                      (i.e., those medical expenses that were
                                           informed of his or her current address                  reaching a ‘‘determination’’ pursuant to               not paid for or reimbursed through
                                           and to respond within the duration of                   section 405(b) of the Act, has developed               health insurance or other programs).
                                           this program to requests for additional                 a methodology and may publish                          This loss shall be calculated on a case-
                                           information. Claims outstanding                         updated schedules, tables, or charts that              by-case basis, using documentation and
                                           because of a claimant’s failure to                                                                             other information submitted by the
                                                                                                   will permit prospective claimants to
                                           complete his or her filings shall be                                                                           Personal Representative. The Special
                                                                                                   estimate determinations of loss of
                                           deemed abandoned.                                                                                              Master shall not consider any future
                                                                                                   earnings or other benefits related to
                                                                                                   employment based upon individual                       medical expense loss.
                                           Subpart D—Amount of Compensation
                                           for Eligible Claimants                                  circumstances of the deceased victim,                     (c) Replacement services loss. For
                                                                                                   including: The age of the decedent as of               decedents who did not have any prior
                                           § 104.41   Amount of compensation.                      the date of death; the number of                       earned income, or who worked only
                                              As provided in section 405(b)(1)(B)(ii)              dependents who survive the decedent;                   part-time outside the home, economic
                                           of the Act, in determining the amount                   whether the decedent is survived by a                  loss may be determined with reference
                                           of compensation to which a claimant is                  spouse; and the amount and nature of                   to replacement services and similar
                                           entitled, the Special Master shall take                 the decedent’s income for recent years.                measures.
                                           into consideration the harm to the                      The decedent’s salary/income in the                       (d) Loss due to death/burial costs.
                                           claimant, the facts of the claim, and the               three years preceding the year of death                This loss shall be calculated on a case-
                                           individual circumstances of the                         (or for other years the Special Master                 by-case basis, using documentation and
                                           claimant. The individual circumstances                  deems relevant) shall be evaluated in a                other information submitted by the
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                                           of the claimant may include the                         manner that the Special Master deems                   personal representative and includes the
                                           financial needs or financial resources of               appropriate. The Special Master may, if                out-of-pocket burial costs that were
                                           the claimant or the victim’s dependents                 she deems appropriate, take an average                 incurred.
                                           and beneficiaries. As provided in                       of income figures for the three years                     (e) Loss of business or employment
                                           section 405(b)(6) of the Act, the Special               preceding the year of death, and may                   opportunities. Such losses shall be
                                           Master shall reduce the amount of                       also consider income for other periods                 addressed through the procedure


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                                           38946            Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations

                                           outlined above in paragraph (a) of this                 without any further medical evidence or                replacement services loss. The Special
                                           section.                                                review. The Special Master may also                    Master has discretion to consider the
                                                                                                   consider determinations of permanent                   effect of multiple cancer conditions or
                                           § 104.44 Determination of presumed                      total disability made by other                         multiple cancer and non-cancer
                                           noneconomic losses for death for claims on
                                           behalf of decedents.
                                                                                                   governmental agencies or private                       conditions in computing the total
                                                                                                   insurers in evaluating the claim.                      noneconomic loss.
                                             The presumed non-economic losses                         (3) Partial disability. With respect to
                                           for an eligible death shall be $250,000                 claims of partial disability, the Special              § 104.47   Collateral sources.
                                           plus an additional $100,000 for the                     Master may consider evidence of the                       (a) Payments that constitute collateral
                                           spouse and each dependent of the                        effect of the partial disability on the                source compensation. The amount of
                                           deceased victim. Such presumed losses                   claimant’s ability to perform his or her               compensation shall be reduced by all
                                           include a noneconomic component of                      usual occupation as well as the effect of              collateral source compensation the
                                           replacement services loss.                              the partial disability on the claimant’s               claimant has received or is entitled to
                                                                                                   ability to participate in usual daily                  receive as a result of the terrorist-related
                                           § 104.45 Determination of presumed
                                                                                                   activities.                                            aircraft crashes of September 11, 2001,
                                           economic loss for injured claimants.
                                                                                                      (b) Medical Expense Loss. This loss                 or debris removal in the immediate
                                             In reaching presumed determinations                                                                          aftermath, including life insurance,
                                           for economic loss for claimants who                     equals the documented past out-of-
                                                                                                   pocket medical expenses that were                      pension funds, death benefits programs,
                                           suffered an eligible physical harm (but                                                                        payments by Federal, State, or local
                                           did not die), the Special Master shall                  incurred as a result of the physical harm
                                                                                                   suffered by the victim (i.e., those                    governments related to the terrorist-
                                           consider sums corresponding to the                                                                             related aircraft crashes of September 11,
                                           following:                                              medical expenses that were not paid for
                                                                                                   or reimbursed through health insurance                 2001, or debris removal and payments
                                             (a) Loss of earnings or other benefits                                                                       made pursuant to the settlement of a
                                           related to employment. The Special                      or other programs). The Special Master
                                                                                                   shall not consider any future medical                  civil action as described in section
                                           Master may determine the loss of                                                                               405(c)(3)(C)(iii) of the Act. In
                                           earnings or other benefits related to                   expense loss.
                                                                                                      (c) Replacement Services. For                       determining the appropriate collateral
                                           employment on a case-by-case basis,                                                                            source offset for future benefit
                                                                                                   claimants who suffer physical harm and
                                           using documentation and other                                                                                  payments, the Special Master may
                                                                                                   did not have any prior earned income or
                                           information submitted by the claimant,                                                                         employ an appropriate methodology for
                                                                                                   who worked only part time outside the
                                           regarding the actual amount of work                                                                            determining the present value of such
                                                                                                   home, economic loss may be
                                           that the claimant has missed or will                                                                           future benefits. In determining the
                                                                                                   determined with reference to
                                           miss without compensation.                                                                                     appropriate value of offsets for pension
                                                                                                   replacement services and similar
                                           Alternatively, the Special Master may                                                                          funds, life insurance and similar
                                                                                                   measures.
                                           determine the loss of earnings or other                    (d) Loss of business or employment                  collateral sources, the Special Master
                                           benefits related to employment by                       opportunities. Such losses shall be                    may, as appropriate, reduce the amount
                                           relying upon the methodology created                    addressed through the procedure                        of offsets to take account of self-
                                           pursuant to § 104.43(a) and adjusting                   outlined above in paragraph (a) of this                contributions made or premiums paid
                                           the loss based upon the extent of the                   section.                                               by the victim during his or her lifetime.
                                           victim’s physical harm. In determining                     (e) Determination of Noneconomic                    In determining the appropriate
                                           or computing any loss of earnings due                   Loss for Claimants Who Have a WTC-                     collateral source offset for future benefit
                                           to eligible physical harm, the Special                  Related Physical Condition and Who                     payments that are contingent upon one
                                           Master shall, for each year of any past                 Are Found Eligible for Economic Loss.                  or more future event(s), the Special
                                           or projected future loss of earnings or                 The Special Master shall determine the                 Master may reduce such offsets to
                                           other benefits related to employment,                   appropriate noneconomic loss for such                  account for the possibility that the
                                           limit the annual gross income of the                    claimants in accordance with the                       future contingencies may or may not
                                           claimant to an amount that is not greater               provisions of § 104.46, taking into                    occur. In cases where the recipients of
                                           than $200,000. For purposes of the                      account the extent of disability, and                  collateral source compensation are not
                                           computation of loss of earnings, annual                 may consider whether the claimant has                  beneficiaries of the awards from the
                                           gross income shall have the meaning                     multiple WTC-Related Physical Health                   Fund, the Special Master shall have
                                           given such term in section 61 of the                    Conditions that contribute to the                      discretion to exclude such
                                           Internal Revenue Code of 1986.                          disability.                                            compensation from the collateral source
                                             (1) Disability; in general. In evaluating                                                                    offset where necessary to prevent
                                           claims of disability, the Special Master                § 104.46 Determination of presumed                     beneficiaries from having their awards
                                           will, in general, make a determination                  noneconomic losses for injured claimants               reduced by collateral source
                                           regarding whether the claimant is                         The Special Master may determine                     compensation that they will not receive.
                                           capable of performing his or her usual                  the presumed noneconomic losses for                       (b) Payments that do not constitute
                                           profession in light of the eligible                     claimants who suffered physical harm                   collateral source compensation. The
                                           physical conditions. The Special Master                 (but did not die) by relying upon the                  following payments received by
                                           may require that the claimant submit an                 noneconomic losses described in                        claimants do not constitute collateral
                                           evaluation of the claimant’s disability                 § 104.44 and adjusting the losses based                source compensation:
                                           and ability to perform his or her                       upon the extent of the victim’s physical                  (1) The value of services or in-kind
                                           occupation prepared by medical                          harm. The presumed noneconomic loss                    charitable gifts such as provision of
                                           experts.                                                for a claim based on any single type of                emergency housing, food, or clothing;
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                                             (2) Total permanent disability. With                  cancer shall not exceed $250,000 and                   and
                                           respect to claims of total permanent                    the presumed noneconomic loss for a                       (2) Charitable donations distributed to
                                           disability, the Special Master may                      claim based on any single type of non-                 the beneficiaries of the decedent, to the
                                           accept a determination of disability                    cancer condition shall not exceed                      injured claimant, or to the beneficiaries
                                           made by the Social Security                             $90,000. Such presumed losses include                  of the injured claimant by privately
                                           Administration as evidence of disability                any noneconomic component of                           funded charitable entities; provided


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                                                            Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations                                              38947

                                           however, that the Special Master may                    the compensation of those claimants                    § 104.62   Time limit on filing claims.
                                           determine that funds provided to                        who suffer from the most debilitating                     (a) In general. Group B claims. Group
                                           victims or their families through a                     physical conditions is prioritized to                  B claims that were not submitted to the
                                           privately funded charitable entity                      avoid undue burden on such claimants.
                                                                                                                                                          Victim Compensation Fund on or before
                                           constitute, in substance, a payment
                                                                                                   § 104.52 Distribution of award to                      December 17, 2015 may be filed by an
                                           described in paragraph (a) of this
                                           section.                                                decedent’s beneficiaries.                              individual (or by a personal
                                             (3) Tax benefits received from the                                                                           representative on behalf of a deceased
                                                                                                      The Personal Representative shall
                                           Federal government as a result of the                                                                          individual) during the period beginning
                                                                                                   distribute the award in a manner
                                           enactment of the Victims of Terrorism                                                                          on June 15, 2016, and ending on
                                                                                                   consistent with the law of the
                                           Tax Relief Act.                                         decedent’s domicile or any applicable                  December 18, 2020. Notwithstanding
                                                                                                   rulings made by a court of competent                   the above, an individual who intends to
                                           Subpart E—Payment of Claims                             jurisdiction. The Special Master may                   file a Group B claim must register with
                                                                                                   require the Personal Representative to                 the Victim Compensation Fund in
                                           § 104.51   Payments to eligible individuals.
                                                                                                   provide to the Special Master a plan for               accordance with the following:
                                              (a) Payment date. Subject to
                                           paragraph (c) of this section, the Special              distribution of any award received from                   (1) In the case that the individual
                                           Master shall authorize payment of an                    the Fund before payment is authorized.                 knew (or reasonably should have
                                           award to a claimant not later than 20                   Notwithstanding any other provision of                 known) before October 3, 2011, that the
                                           days after the date on which:                           these regulations or any other provision               individual suffered a physical harm or
                                              (1) The claimant accepts the                         of state law, in the event that the Special            died as a result of the terrorist-related
                                           presumed award; or                                      Master concludes that the Personal                     aircraft crashes of September 11, 2001,
                                              (2) A final award for the claimant is                Representative’s plan for distribution                 or as a result of debris removal, and is
                                           determined after a hearing on appeal.                   does not appropriately compensate the                  eligible to file a claim under this part as
                                              (b) Failure to accept or appeal                      victim’s spouse, children, or other                    of October 3, 2011, the individual or
                                           presumed award. If a claimant fails to                  relatives, the Special Master may direct               representative of such individual as
                                           accept or appeal the presumed award                     the Personal Representative to distribute              appropriate may file a claim not later
                                           determined for that claimant within 30                  all or part of the award to such spouse,               than October 3, 2013.
                                           days, the presumed award shall be                       children, or other relatives.
                                           deemed to have been accepted and all                                                                              (2) In the case that the individual first
                                           rights to appeal the award shall have                   Subpart F—Limitations                                  knew (or reasonably should have
                                           been waived.                                                                                                   known) on or after October 3, 2011, that
                                                                                                   § 104.61    Limitation on civil actions.               the individual suffered a physical harm
                                              (c) Payment of Group A claims. Group
                                           A claims shall be paid as soon as                          (a) General. Section 405(c)(3)(C) of the            or died or in the case that the individual
                                           practicable from the capped amount                      Act provides that upon the submission                  became eligible to file a claim under this
                                           appropriated for such claims of                         of a claim under the Fund, the claimant                part on or after that date, the individual
                                           $2,775,000,000.                                         waives the right to file a civil action (or            or representative of such individual as
                                              (d) Payment of Group B claims. Group                 be a party to an action) in any Federal                appropriate may file a claim not later
                                           B claims may be paid after the date on                  or State court for damages sustained as                than the last day of the 2-year period
                                           which new Group B claims may be filed                   a result of the terrorist-related aircraft             beginning on the date that the
                                           under these regulations from the                        crashes of September 11, 2001, or for                  individual or representative first knew
                                           amount appropriated for Group A                         damages arising from or related to                     (or should have known) that the
                                           claims if and to the extent that there are              debris removal, except that this                       individual both suffered from such
                                           funds remaining after all Group A                       limitation does not apply to recover                   harm and was eligible to file a claim
                                           claims have been paid and, thereafter,                  collateral source obligations, or to a civil           under this title, but in no event beyond
                                           from the $4,600,000,000 amount                          action against any person who is a                     December 18, 2020.
                                           appropriated specifically for Group B                   knowing participant in any conspiracy
                                           claims once it becomes available in                                                                               (b) Determination by Special Master.
                                                                                                   to hijack any aircraft or commit any                   The Special Master or the Special
                                           fiscal year 2017 until expended.                        terrorist act. The Special Master shall
                                              (e) Prioritization. The Special Master                                                                      Master’s designee should determine the
                                                                                                   take appropriate steps to inform
                                           shall identify claims that present the                                                                         timeliness of all claims under paragraph
                                                                                                   potential claimants of section
                                           most debilitating physical conditions                   405(c)(3)(C) of the Act.                               of this section.
                                           and shall prioritize the compensation of
                                                                                                      (b) Pending actions. Claimants who                  § 104.63   Subrogation.
                                           such claims so that claimants with such
                                           debilitating conditions are not unduly                  have filed a civil action or who are a                    Compensation under this Fund does
                                           burdened.                                               party to such an action as described in
                                                                                                                                                          not constitute the recovery of tort
                                              (f) Reassessment. Commencing on                      paragraph (a) of this section may not file
                                                                                                                                                          damages against a third party nor the
                                           December 18, 2017, and continuing at                    a claim with the Special Master unless
                                                                                                                                                          settlement of a third party action, and
                                           least annually thereafter until the                     they withdraw from such action not
                                                                                                   later than January 2, 2012.                            the United States shall be subrogated to
                                           closure of the Victim Compensation                                                                             all potential claims against third party
                                           Fund, the Special Master shall review                      (c) Settled actions. In the case of an              tortfeasors of any victim receiving
                                           and reassess policies and procedures                    individual who settled a civil action                  compensation from the Fund. For that
                                           and make such adjustments as may be                     described in Section 405(c)(3)(C) of the               reason, no person or entity having paid
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                                           necessary to ensure that the total                      Act, such individual may not submit a
                                                                                                                                                          other benefits or compensation to or on
                                           expenditures including administrative                   claim under this title unless such action
                                                                                                                                                          behalf of a victim shall have any right
                                           costs in providing compensation for                     was commenced after December 22,
                                                                                                                                                          of recovery, whether through
                                           claims in Group B do not exceed the                     2003, and a release of all claims in such
                                           funds deposited into the Victim                         action was tendered prior to January 2,                subrogation or otherwise, against the
                                           Compensation Fund and to ensure that                    2011.                                                  compensation paid by the Fund.



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                                           38948            Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations

                                           Subpart G—Measures To Protect the                       rendered in connection with a claim                    DATES:   Effective July 1, 2016.
                                           Integrity of the Compensation Program                   filed by or on behalf of that individual               FOR FURTHER INFORMATION CONTACT:
                                                                                                   under this title.                                      Deborah C. Murphy (Murphy.Deborah@
                                           § 104.71   Procedures to prevent and detect                (2) Exception. If the legal fee charged
                                           fraud.                                                                                                         PBGC.gov), Deputy Assistant General
                                                                                                   in connection with the settlement of a
                                             (a) Review of claims. For the purpose                                                                        Counsel for Regulatory Affairs, Pension
                                                                                                   civil action described in section
                                           of detecting and preventing the payment                                                                        Benefit Guaranty Corporation, 1200 K
                                                                                                   405(c)(3)(C)(iii) of the Act of an
                                           of fraudulent claims and for the purpose                                                                       Street NW., Washington, DC 20005,
                                                                                                   individual is less than 10 percent of the
                                           of assuring accurate and appropriate                                                                           202–326–4024. (TTY/TDD users may
                                                                                                   aggregate amount of compensation
                                           payments to eligible claimants, the                                                                            call the Federal relay service toll free at
                                                                                                   awarded to such individual through
                                           Special Master shall implement                                                                                 1–800–877–8339 and ask to be
                                                                                                   such settlement, the representative who
                                           procedures to:                                                                                                 connected to 202–326–4024.)
                                                                                                   charged such legal fee to that individual
                                             (1) Verify, authenticate, and audit                   may charge an amount for compensation                  SUPPLEMENTARY INFORMATION:        PBGC’s
                                           claims;                                                 for services rendered to the extent that               regulations on Allocation of Assets in
                                             (2) Analyze claim submissions to                      such amount charged is not more than                   Single-Employer Plans (29 CFR part
                                           detect inconsistencies, irregularities,                 Ten (10) percent of such aggregate                     4044) and Benefits Payable in
                                           duplication, and multiple claimants;                    amount through the settlement, minus                   Terminated Single-Employer Plans (29
                                           and                                                     the total amount of all legal fees charged             CFR part 4022) prescribe actuarial
                                             (3) Ensure the quality control of                     for services rendered in connection with               assumptions—including interest
                                           claims review procedures.                               such settlement.                                       assumptions — for valuing and paying
                                             (b) Quality control. The Special                         (c) Discretion to lower fee. In the event           plan benefits under terminating single-
                                           Master shall institute periodic quality                 that the Special Master finds that the fee             employer plans covered by title IV of
                                           control audits designed to evaluate the                 limit set by paragraph (a) or (b) of this              the Employee Retirement Income
                                           accuracy of submissions and the                         section provides excessive                             Security Act of 1974. The interest
                                           accuracy of payments, subject to the                    compensation for services rendered in                  assumptions in the regulations are also
                                           oversight of the Inspector General of the               connection with such claim, the Special                published on PBGC’s Web site (http://
                                           Department of Justice.                                  Master may, in the discretion of the                   www.pbgc.gov).
                                             (c) False or fraudulent claims. The                   Special Master, award as reasonable                       The interest assumptions in Appendix
                                           Special Master shall refer all evidence of              compensation for services rendered an                  B to Part 4044 are used to value benefits
                                           false or fraudulent claims to appropriate               amount lesser than that permitted for in               for allocation purposes under ERISA
                                           law enforcement authorities.                            paragraph (a) of this section.                         section 4044. PBGC uses the interest
                                                                                                     Dated: June 13, 2016.                                assumptions in Appendix B to Part 4022
                                           Subpart H—Attorney Fees                                                                                        to determine whether a benefit is
                                                                                                   Sheila L. Birnbaum,
                                           § 104.81   Limitation on attorney fees.                 Special Master.                                        payable as a lump sum and to determine
                                             (a) In general—(1) In general.                        [FR Doc. 2016–14259 Filed 6–13–16; 4:15 pm]            the amount to pay. Appendix C to Part
                                           Notwithstanding any contract, the                       BILLING CODE 4410–12–P
                                                                                                                                                          4022 contains interest assumptions for
                                           representative of an individual may not                                                                        private-sector pension practitioners to
                                           charge, for services rendered in                                                                               refer to if they wish to use lump-sum
                                           connection with the claim of an                                                                                interest rates determined using PBGC’s
                                                                                                   PENSION BENEFIT GUARANTY
                                           individual under this title, including                                                                         historical methodology. Currently, the
                                                                                                   CORPORATION
                                           expenses routinely incurred in the                                                                             rates in Appendices B and C of the
                                           course of providing legal services, more                29 CFR Parts 4022 and 4044                             benefit payment regulation are the same.
                                           than 10 percent of an award paid under                                                                            The interest assumptions are intended
                                           this title on such claim. Expenses                      Allocation of Assets in Single-                        to reflect current conditions in the
                                           incurred in connection with the claim of                Employer Plans; Benefits Payable in                    financial and annuity markets.
                                           an individual in this title other than                  Terminated Single-Employer Plans;                      Assumptions under the asset allocation
                                           those that are routinely incurred in the                Interest Assumptions for Valuing and                   regulation are updated quarterly;
                                           course of providing legal services may                  Paying Benefits                                        assumptions under the benefit payments
                                           be charged to a claimant only if they                   AGENCY:  Pension Benefit Guaranty                      regulation are updated monthly. This
                                           have been approved by the Special                       Corporation.                                           final rule updates the benefit payments
                                           Master.                                                                                                        interest assumptions for July 2016 and
                                                                                                   ACTION: Final rule.
                                             (2) Certification. In the case of any                                                                        updates the asset allocation interest
                                           claim in connection with which services                 SUMMARY:   This final rule amends the                  assumptions for the third quarter (July
                                           covered by this section were rendered,                  Pension Benefit Guaranty Corporation’s                 through September) of 2016.
                                           the representative shall certify his or her             regulations on Benefits Payable in                        The third quarter 2016 interest
                                           compliance with this section and shall                  Terminated Single-Employer Plans and                   assumptions under the allocation
                                           provide such information as the Special                 Allocation of Assets in Single-Employer                regulation will be 2.50 percent for the
                                           Master requires to ensure such                          Plans to prescribe interest assumptions                first 20 years following the valuation
                                           compliance.                                             under the benefit payments regulation                  date and 2.85 percent thereafter. In
                                             (b) Limitation—(1) In general. Except                 for valuation dates in July 2016 and                   comparison with the interest
                                           as provided in paragraph (b)(2) of this                 interest assumptions under the asset                   assumptions in effect for the second
                                           section, in the case of an individual who               allocation regulation for valuation dates              quarter of 2016, these interest
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                                           was charged a legal fee in connection                   in the third quarter of 2016. The interest             assumptions represent no change in the
                                           with the settlement of a civil action                   assumptions are used for valuing and                   select period (the period during which
                                           described in section 405(c)(3)(C)(iii) of               paying benefits under terminating                      the select rate (the initial rate) applies),
                                           the Act, the representative who charged                 single-employer plans covered by the                   a decrease of 0.27 percent in the select
                                           such legal fee may not charge any                       pension insurance system administered                  rate, and a decrease of 0.01 percent in
                                           amount for compensation for services                    by PBGC.                                               the ultimate rate (the final rate).


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Document Created: 2016-06-15 02:21:17
Document Modified: 2016-06-15 02:21:17
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionInterim final rule.
ContactCatherine V. Emerson, Director, Office of Management Programs, Civil Division, U.S. Department of Justice, Main Building, Room 3140, 950 Pennsylvania Avenue NW., Washington, DC 20530, telephone 855-885-1555 (TTY 855-885-1558).
FR Citation81 FR 38936 
RIN Number1105-AB49
CFR AssociatedDisaster Assistance; Disability Benefits and Terrorism

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