Federal Register / Vol. 76, No. 119 / Tuesday, June 21, 2011 / Proposed Rules 36027 

(5) For a culture-based test method, 

the volume of test material that results 

in a dilution of the product that is not 

bacteriostatic or fungistatic; and 

(6) For a non-culture-based test 

method, the volume of test material that 

results in a dilution of the product that 

does not inhibit or otherwise hinder the 

detection of viable contaminating 

microorganisms. 

(e) Verification. (1) For culture-based 

test methods, studies must be conducted 

to demonstrate that the performance of 

the test organisms and culture media are 

suitable to consistently detect the 

presence of viable contaminating 

microorganisms, including tests for each 

lot of culture media to verify its growthpromoting properties over the shelf-life 

of the media. 

(2) For non-culture-based test 

methods, within the test itself, 

appropriate controls must be used to 

demonstrate the ability of the test 

method to continue to consistently 

detect the presence of viable 

contaminating microorganisms. 

(f) Repeat Test Procedures. (1) If the 

initial test indicates the presence of 

microorganisms, the product does not 

comply with the sterility test 

requirements unless a thorough 

investigation by the quality control unit 

can ascribe definitively the microbial 

presence to a laboratory error or faulty 

materials used in conducting the 

sterility testing. 

(2) If the investigation described in 

paragraph (f)(1) of this section finds that 

the initial test indicated the presence of 

microorganisms due to laboratory error 

or the use of faulty materials, a sterility 

test may be repeated one time. If no 

evidence of microorganisms is found in 

the repeat test, the product examined 

complies with the sterility test 

requirements. If evidence of 

microorganisms is found in the repeat 

test, the product examined does not 

comply with the sterility test 

requirements. 

(3) If a repeat test is conducted, the 

same test method must be used for both 

the initial and repeat tests, and the 

repeat test must be conducted with 

comparable product that is reflective of 

the initial sample in terms of sample 

location and the stage in the 

manufacturing process from which it 

was obtained. 

(g) Records. The records related to the 

test requirements of this section must be 

prepared and maintained as required by 

21 CFR 211.167 and 211.194 of this 

chapter. 

(h) Exceptions. Sterility testing must 

be performed on final container material 

or other appropriate material as defined 

in the approved biologics license 

application or supplement and as 

described in this section, except as 

follows: 

(1) Sterility testing is not required for 

Whole Blood, Cryoprecipitated 

Antihemophilic Factor, Platelets, Red 

Blood Cells, Plasma, Source Plasma, 

Smallpox Vaccine, Reagent Red Blood 

Cells, Anti-Human Globulin, and Blood 

Grouping Reagents. 

(2) A manufacturer is not required to 

comply with the sterility test 

requirements if the Director of the 

Center for Biologics Evaluation and 

Research or the Director of the Center 

for Devices and Radiological Health, as 

appropriate, determines that data 

submitted in the biologics license 

application or supplement adequately 

establish that the route of 

administration, the method of 

preparation, or any other aspect of the 

product precludes or does not 

necessitate a sterility test to assure the 

safety, purity, and potency of the 

product. 

PART 680—ADDITIONAL STANDARDS 

FOR MISCELLANEOUS PRODUCTS 

5. The authority citation for 21 CFR 

part 680 continues to read as follows: 

Authority: 21 U.S.C. 321, 351, 352, 353, 

355, 360, 371; 42 U.S.C. 216, 262, 263, 263a, 

264. 

6. Section 680.3 is amended by 

revising paragraph (c) to read as follows: 

§ 680.3 Tests. 

* * * * * 

(c) Sterility. A sterility test shall be 

performed on each lot of each 

Allergenic Product as required by 

§ 601.12 of this chapter. 

Dated: June 16, 2011. 

Leslie Kux, 

Acting Assistant Commissioner for Policy. 

[FR Doc. 2011–15346 Filed 6–20–11; 8:45 am] 

BILLING CODE 4160–01–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 104 

[Docket No. CIV 151] 

RIN 1105–AB39 

James Zadroga 9/11 Health and 

Compensation Act of 2010 

AGENCY: Department of Justice. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: On January 2, 2011, President 

Obama signed into law the James 

Zadroga 9/11 Health and Compensation 

Act of 2010 (Zadroga Act). Title II of the 

Zadroga Act reactivates the September 

11th Victim Compensation Fund of 

2001 and requires a Special Master, 

appointed by the Attorney General, 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. 

This rule proposes to amend the 

regulations implementing the Fund to 

reflect the changes made by the Zadroga 

Act. 

DATES: Written comments must be 

postmarked and electronic comments 

must be submitted on or before August 

5, 2011. 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: Comments may be mailed to 

Kenneth L. Zwick, Director, Office of 

Management Programs, Civil Division, 

U.S. Department of Justice, Main 

Building, Room 3140, 950 Pennsylvania 

Avenue, NW., Washington, DC 20530. 

However, the Department encourages 

commenters to submit their comments 

using http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Kenneth L. Zwick, Director, Office of 

Management Programs, Civil Division, 

U.S. Department of Justice, Main 

Building, Room 3140, 950 Pennsylvania 

Avenue, NW., Washington, DC 20530, 

telephone 855–885–1555 (TTY 855– 

885–1558). 

SUPPLEMENTARY INFORMATION: 

Comment Period: The Department of 

Justice has allocated 45 days for public 

comment. This timeline is appropriate 

in light of the proposed regulations’ 

substantial incorporation of the 

regulations that were previously used, 

the Department’s experience in 

operating the Victim Compensation 

Fund, and the public interest in 

beginning operation of the Fund as soon 

as possible. 

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. 

Such information includes personal 

identifying information (such as your 

name and address) voluntarily 

submitted by the commenter. 

You are not required to submit 

personal identifying information in 

order to comment on this rule. 

Nevertheless, if you want to submit 

personal identifying information (such 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
36028 Federal Register / Vol. 76, No. 119 / Tuesday, June 21, 2011 / Proposed Rules 

as your name and address) as part of 

your comment, but do not want it to be 

posted online, you must include the 

phrase ‘‘PERSONAL IDENTIFYING 

INFORMATION’’ in the first paragraph 

of your comment. You also must locate 

all the personal identifying information 

you do not want posted online in the 

first paragraph of your comment and 

identify what information you want 

redacted. 

If you want to submit confidential 

business information as part of your 

comment but do not want it to be posted 

online, you must include the phrase 

‘‘CONFIDENTIAL BUSINESS 

INFORMATION’’ in the first paragraph 

of your comment. You also must 

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, all or part of that comment 

may not be posted on http:// 

www.regulations.gov. 

Personal identifying information and 

confidential business 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 inspect the agency’s public 

docket file in person by appointment, 

please see the paragraph above entitled 

FOR FURTHER INFORMATION CONTACT. 

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, 

available at http://www.justice.gov/ 

final_report.pdf. 

On January 2, 2011, President Obama 

signed the Zadroga Act into law. Title 

I of the Zadroga Act establishes a 

program within the Department of 

Health and Human Services to provide 

medical monitoring and treatment 

benefits to eligible individuals. Title II 

amends the 2001 Act and reopens the 

Fund. Among other changes, Title II 

adds new categories of beneficiaries for 

the Fund and sets new filing deadlines. 

It also imposes a cap on the total awards 

that can be paid by the Fund and limits 

the fees that an attorney may receive for 

awards made under the Fund. 

The Zadroga Act, as originally 

enacted, 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 has appointed 

Sheila L. Birnbaum to serve as Special 

Master and to administer the Fund. 

Statement From the Special Master 

The James Zadroga 9/11 Health and 

Compensation Act of 2010 reopens the 

September 11th Victim Compensation 

Fund of 2001 to provide compensation 

to those who were physically injured or 

who died in the immediate aftermath of 

the terrorist attacks of September 11, 

2001, including those who were injured 

during the clean-up and debris removal 

operations at a 9/11 crash site. This 

extension recognizes the considerable 

efforts of and effects on those engaged 

in or in the immediate vicinity of the 

response, recovery, and clean-up 

operations. The intent of the extension 

of the Fund is to provide fair and 

consistent compensation for those who 

are eligible and to do so in an efficient 

and timely manner. 

As I stated when I was appointed, my 

goal is for the September 11th Victim 

Compensation Fund to be fair, 

transparent, and easy to navigate. In 

order to achieve that goal, I intend to 

build on the strong foundation that was 

established by Special Master Kenneth 

Feinberg in the first iteration of the 

Victim Compensation Fund and listen 

carefully to the views and concerns 

expressed by those who will be most 

affected by the program. I have sought 

to publish these proposed regulations 

quickly, so that there will be ample time 

for others to review them and for 

comments to be fully evaluated and the 

regulations revised, where appropriate, 

before the Victim Compensation Fund 

opens later this year. Given the Victim 

Compensation Fund’s success in its 

previous iteration, I propose to 

implement the original processes where 

I can and to propose additional or 

different procedures where the Zadroga 

Act requires a different approach. 

At the outset, I would highlight some 

key principles that will guide my effort 

to create a process that is fair, 

transparent, and easy to navigate. First, 

I intend to make decisions based on the 

best scientific and medical evidence 

that is available. The Zadroga Act 

requires the Special Master to make a 

number of decisions about who is 

eligible to bring a claim, based on the 

nature of the individual’s injuries, how 

it was caused, and whether the 

individual was present in an area where 

there was a demonstrable risk of 

physical harm resulting from the 

crashes. In order to make these 

determinations in a fair manner, I 

intend to look to the evidence that 

scientists and medical professionals rely 

on in exercising their best professional 

judgment. I also intend for the Victim 

Compensation Fund to keep pace with 

the evolving science and to ensure that 

as we learn more about conditions that 

may have been caused by the crashes or 

related debris-removal efforts, we are 

able to compensate claimants 

accordingly. 

Second, Congress has appropriated a 

capped amount—$2.775 billion payable 

over a period of years—for this program. 

Only $875 million may be spent in the 

first five years of the program with the 

remainder being paid out in the sixth 

year. It is important therefore to assure 

that funds are targeted to the payment 

of eligible claims and to avoid 

procedures or guidelines that will dilute 

those payments. Funds used to process 

ineligible claims or for unnecessary 

administrative costs result in fewer 

funds available to pay intended and 

deserving claimants. In implementing 

the program, I intend to initiate 

procedures that will permit efficiency 

without sacrificing fairness, and to seek 

ways to minimize administrative 

expenses, thereby maximizing the 

amount available for distribution to 

eligible claimants. 

Third, it is exceedingly important, in 

my view, to fully investigate the facts 

and circumstances surrounding the 

response, clean-up and debris removal 

activities necessitated by the attacks and 

the injuries that have resulted from 

these activities. To achieve these goals 

over the next several months, I will hold 

meetings with interested parties to 

explain the Victim Compensation Fund 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
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and the proposed regulations, to hear 

your thoughts, and to answer as many 

questions as I can. I also look forward 

to reviewing your written comments 

about these proposed regulations, so 

that I can make the best decisions 

possible to refine the regulations and 

administer the program. 

Discussion 

The following discussion explains the 

proposed updates to the regulations 

governing the Fund. The proposed 

regulations are based on the Final 

Regulations governing the Fund from 

2001–2004. Nevertheless, the Zadroga 

Act requires certain changes. Section I 

discusses proposed changes to the 

eligibility criteria; Section II discusses 

proposed procedures for amending 

claims; Section III discusses awards and 

proration of awards; and Section IV 

discusses proposed changes to the 

claims evaluation process. The text of 

the proposed regulations, as amended, 

is set forth following these explanatory 

sections. More detailed information, 

including a comparison of the original 

regulations to these proposed 

regulations, will be available on the 

Victim Compensation Fund’s Web site 

at www.usdoj.gov/vcf. 

I. Eligibility 

Title II of the Zadroga Act sets criteria 

for determining whether a claimant is 

eligible to receive compensation from 

the Fund. The Act made changes to the 

criteria that governed eligibility in the 

Fund’s previous iteration. In order to be 

eligible for the Fund, Title II of the 

Zadroga Act requires an individual to 

have been present at a ‘‘9/11 crash site’’ 

at the time or in the immediate 

aftermath of the crashes, and have 

suffered ‘‘physical harm or death as a 

result of’’ one of the air crashes or debris 

removal. In making these 

determinations, the Special Master is 

mindful that Congress has appropriated 

a limited amount of funds for paying 

awards, and therefore that inappropriate 

expansions of eligibility may result in 

lower awards for deserving claimants. 

(a) The Definition of ‘‘9/11 Crash Site’’ 

In requiring that a claimant have been 

present at a ‘‘9/11 crash site’’ in order 

to receive compensation from the Fund, 

Title II of the Zadroga Act recognizes 

that such sites include more than just 

the World Trade Center, Pentagon, and 

Shanksville, Pennsylvania sites and the 

buildings that were destroyed as a 

result. The Zadroga Act also 

encompasses two other areas. 

(1) Sufficiently Close to the Site 

First, Title II of the Zadroga Act 

defines ‘‘9/11 crash site’’ to include both 

the crash sites themselves and any area 

that is contiguous to one of the crash 

sites that the Special Master 

‘‘determines was sufficiently close to 

the site that there was a demonstrable 

risk of physical harm resulting from’’ 

the impact of the aircraft or subsequent 

fire, explosions, or building collapses. 

During the Fund’s first iteration, 

Special Master Feinberg applied a 

regulation that required him to make 

this same determination. At that time, 

the most prevalent physical injuries 

were blunt trauma injuries suffered by 

those who were struck by debris or who 

were in the zone in which there was a 

demonstrable risk of physical harm from 

falling debris, explosions, or fire. 

Accordingly, the relevant area was 

defined to include the immediate area 

surrounding the World Trade Center: 

starting from the intersection of Reade 

and Center Streets, the northern 

boundary ran west along Reade Street to 

the Hudson River; the western boundary 

was the Hudson River; the southern 

boundary ran from the Hudson River, 

east along the line of W. Thames Street, 

Edgar Street and Exchange Place to 

Nassau Street; and the eastern 

boundary, starting from the intersection 

of Exchange Place and Nassau Street, 

ran north along Nassau Street to the 

intersection of Center and Reade Streets. 

See Final Report of the Special Master 

for the September 11th Victim 

Compensation Fund of 2001 at 19 and 

n. 53. The Zadroga Act, which covers 

conditions that may have been caused 

over longer periods of time and thus are 

not limited to harms caused by falling 

debris, states that the term ‘‘9/11 crash 

sites’’ ‘‘includ[es]’’ that original area but 

could also include other areas. 

In determining which other areas to 

include, the Special Master will 

consider scientific evidence regarding 

the risks of physical harm resulting from 

the crashes and the text and structure of 

the Act, including the relationship 

between Title I and Title II and the goal 

of allocating the available funds to 

deserving claimants. Given these 

considerations, this proposed rule 

suggests that the term ‘‘9/11 crash site’’ 

includes the area in Manhattan south of 

the line that runs along Reade Street 

from the Hudson River to the 

intersection of Reade Street and Centre 

Street, south on Centre Street to the 

Brooklyn Bridge, and along the 

Brooklyn Bridge, or any other area 

contiguous to the crash sites that the 

Special Master determines was 

sufficiently close to the site that there 

was a demonstrable risk of physical 

harm resulting from the impact of the 

aircraft or any subsequent fire, 

explosions, or building collapses 

(including the immediate area in which 

the impact occurred, fire occurred, 

portions of buildings fell, or debris fell 

upon and injured individuals). These 

proposed boundaries are substantially 

broader than those used in the Fund’s 

first iteration and narrower than 

boundaries used for the World Trade 

Center (WTC) Health Program in Title I 

of the Act. The Special Master invites 

comments on the proposal. 

(2) Routes of Debris Removal 

Second, the Zadroga Act defines the 

term ‘‘9/11 crash site’’ to include ‘‘any 

area related to, or along, routes of debris 

removal, such as barges and Fresh 

Kills.’’ The Special Master invites 

comments that provide information 

regarding the routes of debris removal. 

(b) Physical Harm or Death as a Result 

of the Crash or Debris Removal 

In requiring that a claimant have 

suffered ‘‘physical harm or death as a 

result of’’ one of the air crashes or the 

debris removal, the Zadroga Act also 

requires the Special Master to determine 

which physical harms and deaths were 

‘‘a result of’’ the crashes or debris 

removal within the meaning of the 

statute. The Department notes that Title 

II of the Zadroga Act does not provide 

additional specificity about the harms 

that are to be covered by the Fund. 

However, Title I of the Zadroga Act, 

which establishes the WTC Health 

Program, contains a list of illnesses and 

health conditions for which exposure to 

air borne toxins, other hazards and any 

other adverse conditions resulting from 

the September 11, 2001 terrorists attacks 

could be determined by experienced 

medical professionals to be substantially 

likely to have been a significant factor 

in aggravating, causing, contributing to 

illness or health condition, as well as 

procedures for adding additional 

conditions to the list over time. That 

title also provides that in order for an 

individual to receive treatment under 

the WTC Health Program, there must be 

an individual determination that the 

WTC attacks were ‘‘substantially likely 

to be a significant factor in aggravating, 

contributing to, or causing the illness or 

health condition.’’ 

Accordingly, the Special Master 

proposes that the Fund maintain and 

publish a list of presumptively covered 

conditions that resulted from the air 

crashes or debris removal, and that this 

list shall consist of the physical injuries 

and conditions that are found, under the 

WTC Health Program, to be WTC-related 


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health conditions. The Special Master 

will update this list so that it includes 

not only those physical conditions 

listed in Title I of the Zadroga Act, but 

also any additional physical conditions 

that the WTC Health Program 

determines to be WTC-related. The list 

of presumptively covered conditions 

will be published on the Fund’s Web 

site. 

The Special Master notes that as in 

the Fund’s first iteration, the statute 

limits eligible injuries to those 

consisting of ‘‘physical harm.’’ 

Accordingly, as in the Fund’s first 

iteration, the statutory language does 

not permit the Fund to cover 

individuals with only mental and 

emotional injuries, even if the mental 

and emotional injuries are covered by 

the WTC Health Program. 

Finally, the Special Master notes that 

the proposed regulations does not make 

the list of presumptively covered 

conditions the only conditions for 

which a claimant may seek coverage 

from the Fund. Where the claimant is 

otherwise eligible for an award and 

establishes extraordinary circumstances 

that were not adequately taken into 

account in the list of presumptively 

covered conditions, the proposed rules 

will permit the Special Master to find 

the claimant eligible even if the injury 

in question is not on the list of 

presumptively covered conditions. 

Because the list of presumptively 

covered conditions will be set based on 

the WTC Health Program’s process for 

making decisions based on the best 

available science, it is anticipated that 

these instances will be rare. 

II. Amendments of Claims 

The 2001 Act provided that ‘‘not more 

than one claim may be submitted under 

this Title by an individual or on behalf 

of a deceased individual.’’ The Zadroga 

Act did not amend this limitation. This 

provision does not appear to bar 

individuals who previously submitted 

claims from amending those earlier 

claims if additional relevant information 

has become available. The Special 

Master proposes that claimants be 

permitted to amend their claims to 

reflect the following circumstances: 

(i) An injury that the claimant had not 

suffered (or did not reasonably know the 

claimant suffered) at the time the 

claimant filed the previous claim; 

(ii) A condition that the Special 

Master has identified, since the time the 

claimant filed the previous claim, as a 

presumptively covered condition; 

(iii) An injury for which the claimant 

was compensated by the Fund, but only 

if that injury has substantially 

worsened, resulting in damages or loss 

that was not previously compensated; 

and; 

(iv) Claims for which the individual is 

an eligible claimant as a result of 

amendments contained in the James 

Zadroga 9/11 Health and Compensation 

Act of 2010, Title II of Public Law 111– 

347. 

Accordingly, the proposed regulations 

permit claimants to amend claims in 

those circumstances. 

III. Awards and Prorating of Awards 

The 2001 Act provides that the Fund 

will pay benefits for both ‘‘economic 

losses,’’ which consist of pecuniary 

losses such as lost earnings, medical 

expenses, and other costs, and 

‘‘noneconomic losses,’’ which include 

losses for physical and emotional pain, 

suffering, and loss of companionship. 

The Zadroga Act did not amend those 

provisions; however, the Zadroga Act 

does limit the total amount of funds 

available for paying awards and 

prohibits the Fund from distributing 

more than a certain amount of 

compensation within the first five years. 

(a) Advance Benefits 

The 2001 rule included a provision 

for ‘‘advance benefits’’ for eligible 

claimants to be paid during the 

pendency of the claims process, in 

recognition of the exigency of the 

circumstances and the urgency of the 

need for providing some immediate 

compensation to those who, without a 

moment’s notice, were physically 

injured and the families of those who 

were killed. The context at this point is 

different. The statute already 

contemplates two separate rounds of 

payments, one in the first five years and 

a second in the program’s sixth year. 

Further, the administrative costs 

associated with additional rounds of 

payments reduce the funds available to 

pay claimants. Accordingly, the 

proposed rule does not include a 

provision for payment of advance 

benefits. 

(b) Methodology for Calculating Awards 

The determination of ‘‘economic 

losses’’ will be made, as in the Fund’s 

first iteration, on a case-by-case basis 

according to the losses that each 

claimant has demonstrated. In the 

Fund’s first iteration, the Special Master 

determined that the ‘‘noneconomic 

losses’’ of a claimant who was killed in 

the 9/11 crashes themselves would be 

$250,000 plus an additional $100,000 

for each dependent. Those dollar values 

were consistent with the compensation 

that Congress made available under 

existing federal programs for certain 

citizens who have also died, often 

without a moment’s notice: public 

safety officers who are killed while on 

duty and members of our military who 

are killed in the line of duty while 

serving our nation. See 67 FR 11239 

(Mar. 13, 2002). Those awards for 

noneconomic losses were presumed 

correct, but individuals were able to 

submit additional evidence that would 

justify a higher amount in a particular 

instance. For individuals who suffered 

physical injuries, rather than death, the 

noneconomic awards determined 

adjusted based on the extent and 

duration of the physical harm. 

The Special Master proposes that the 

methodologies for establishing, and the 

compensation offered for, harms in the 

first iteration of the Fund are initially 

appropriate here. The Special Master 

will continue to consider whether 

noneconomic damages for such deaths 

should be adjusted. 

(c) Proration of Awards 

In the Zadroga Act, Congress 

appropriated $2.775 billion to be 

provided by the Fund during this 

second iteration. Of this amount, the 

Act provides that only $875 million may 

be spent during the program’s first five 

years, with the remaining funds to be 

paid during the sixth year. 

In order to ensure that the $875 

million cap is not exceeded during 

those first five years, the Zadroga Act 

requires the Special Master to ratably 

reduce the amount of compensation 

paid to claimants during that time to 

ensure that all claimants entitled to 

payment ‘‘receive a payment’’ during 

that period and to ensure that the $875 

million cap is not exceeded. The Act 

further requires that claimants whose 

payments are ratably reduced during 

this time are to receive a second 

payment in the year after the claims 

period has ended (July 1, 2016 to June 

30, 2017), consisting of the difference 

between the amount that the claimant 

should have been paid under the Act 

and the reduced amount paid during the 

first five years. The regulations 

accordingly require the Special Master 

to prorate payments in a manner 

consistent with the statute, based on 

available information regarding 

potential future claims and available 

funds. The Special Master invites 

comments on the best manner to fulfill 

the statute’s purposes in this respect. 

IV. Procedure for Claims Evaluation 

Because the $2.775 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 keep 

administrative expenses low in order to 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
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maximize the amount of funds available 

for claimants. Accordingly, the Special 

Master proposes eliminating one of the 

two procedures used previously for 

evaluating claims. 

Previously, claimants could select one 

of two procedures: Track A or Track B. 

Under Track A, the Fund would 

determine eligibility and a presumed 

award based on the claimant’s filings. 

The claimant could then either (1) 

accept the presumed award and request 

payment or (2) request a hearing for 

further review of the determination. 

Importantly, every claimant had the 

option of a hearing to determine 

whether the claimant’s presumptive 

award was correct. 

Under Track B, claimants proceeded 

directly to a hearing following a finding 

of eligibility. Only after that hearing 

would the Fund make an award 

determination, which was not subject to 

any further review or appeal. 

The proposed regulations eliminate 

Track B. In doing so, the proposed 

regulations seek to reduce 

administrative expenses in order to 

maximize the funds available to pay 

claimants. Hearings are a substantial 

source of administrative expenses, and 

eliminating the initial hearing under 

Track B would still ensure that any 

claimant who wanted a hearing, after 

receiving his or her presumptive award, 

could receive one. Because some 

claimants who might have opted for a 

Track B initial hearing will find that 

they are satisfied with their presumptive 

award, some hearings will be avoided— 

and the costs associated with those 

hearings can instead be used to pay 

claimants. 

V. Other Changes 

The proposed regulations address a 

number of other issues. Among other 

things, the regulations address the 

ability of individuals who have settled 

civil actions to participate in the Fund, 

and the amounts that attorneys may 

charge claimants for services rendered 

in connection with a claim to the Fund. 

The Special Master invites comments on 

these and any other issues relating to 

the Fund. 

Regulatory Certifications 

Paperwork Reduction Act of 1995 

This rule proposes to implement Title 

II of the Zadroga Act which reactivates 

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 

(DOJ), 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. The Department will also 

publish a Notice in the Federal Register 

soliciting public comment on the 

information collection associated with 

this rulemaking. 

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 Victims 

Compensation Fund. Accordingly, the 

Department has reviewed this rule in 

accordance with the Regulatory 

Flexibility Act (5 U.S.C. 605(b)) and by 

approving it certifies that this rule will 

not have a significant economic impact 

on a substantial number of small entities 

because it provides compensation to 

eligible individuals who were 

physically injured as a result of the 

terrorist-related aircraft crashes of 

September 11, 2001, and compensation 

through a ‘‘personal representative’’ for 

those who were killed as a result of 

those crashes. 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. 

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. 

The primary benefits and costs of this 

rulemaking are both set by statute as 

Congress has appropriated a capped 

amount—$2.775 billion payable over a 

period of years—for this program. 

Because the $2.775 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 keep administrative 

expenses low 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 

necessity to establish the legal and 

administrative framework for the 

reopened Fund, the Department 

concludes that there are no viable nonregulatory actions that it could take to 

implement the Zadroga Act in a fair and 

efficient manner. 

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 


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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 

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 foreignbased companies in domestic and 

export markets. 

List of Subjects in 28 CFR Part 104 

Disaster assistance, Disability 

benefits, Terrorism. 

Accordingly, for the reasons set forth 

in the preamble, Part 104 of chapter I of 

Title 28 of the Code of Federal 

Regulations is proposed to be amended 

by revising part 104 to read as follows: 

PART 104—SEPTEMBER 11TH VICTIM 

COMPENSATION FUND 

Subpart A—General; Eligibility 

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 decedents. 

104.45 Determination of presumed 

economic loss for claimants who 

suffered physical harm. 

104.46 Determination of presumed 

noneconomic losses for claimants who 

suffered physical harm. 

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. 

Subpart A—General; Eligibility 

§ 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, to provide 

compensation to eligible individuals 

who were physically injured as a result 

of the terrorist-related aircraft crashes of 

September 11, 2001 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. All 

compensation provided through the 

Fund will be on account of personal 

physical injuries or death. 

§ 104.2 Eligibility definitions and 

requirements. 

(a) 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 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. 

(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. 

(b) 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. 

(c) Physical harm. (1) The term 

physical harm shall mean a physical 

injury to the body that was treated by 

a medical professional within a 

reasonable time from the date of 

discovering such harm; and 

(2) The physical injury must be 

verified by medical records created by 

or at the direction of the medical 

professional who provided the medical 

care contemporaneously with the care. 

(d) Personal Representative. The term 

Personal Representative shall mean the 

person determined to be the Personal 

Representative under § 104.4 of this 

part. 

(e) 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—300mm–61). 

(f) WTC-related health condition. The 

term WTC-related health condition 

means those health conditions 

identified as WTC-related by Title I of 

Public Law 111–347 and by regulations 

implementing that Title. 

(g) 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 


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(3) The area in Manhattan south of the 

line that runs along Reade Street from 

the Hudson River to the intersection of 

Reade Street and Centre Street, south on 

Centre Street to the Brooklyn Bridge, 

and along the Brooklyn Bridge, or any 

other area contiguous to the crash sites 

that the Special Master determines was 

sufficiently close to the site that there 

was a demonstrable risk of physical 

harm resulting from the impact of the 

aircraft or any subsequent fire, 

explosions, or building collapses 

(including the immediate area in which 

the impact occurred, fire occurred, 

portions of buildings fell, or debris fell 

upon and injured individuals); or 

(4) Any area related to, or along, 

routes of debris removal, such as barges 

and Fresh Kills. 

§ 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 § 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 thenapplicable 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. 

(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. 

(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. 

§ 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 

§ 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’’ 

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. 

§ 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. 

§ 104.6 Amendments to this part. 

Claimants are entitled to have their 

claims processed in accordance with the 

provisions of this Part that were in effect 

at the time that their claims were 

submitted under § 104.22(d). All claims 

will be processed in accordance with 

the current provisions of this Part, 

unless the claimant has notified the 

Special Master that he or she has elected 

to have the claim resolved under the 

regulations that were in effect at the 

time that the claim was submitted under 

§ 104.22(d). 


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Subpart B—Filing for Compensation 

§ 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 debris removal. 

The list shall consist of physical injuries 

that are determined to be WTC-related 

health conditions by the WTC Health 

Program. 

(b) Updates. The Special Master shall 

update the list of presumptively covered 

conditions as the list of WTC-related 

health conditions by the WTC Health 

Program is updated. Claims may then be 

amended pursuant to § 104.22(e)(ii). 

(c) Conditions other than 

presumptively covered conditions. A 

claimant may also be eligible for 

payment under § 104.51 where the 

claimant— 

(1) Presents extraordinary 

circumstances not adequately addressed 

by the list of presumptively covered 

conditions; and 

(2) Is otherwise eligible for payment. 

§ 104.22 Filing for compensation. 

(a) Compensation form; ‘‘filing.’’ A 

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 

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) within 90 days of the 

effective date of this part pursuant to 

section 405(c)(3)(C)(ii) of the Act 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 § 104.4(b) that the claimant 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, records of 

employment or school attendance, 

contemporaneous medical records, 

contemporaneous records of federal, 

state, city or local government, 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 health 

condition; a health form provided by the 

Fund and completed by 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. 

(4) 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. 

(5) 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) Personal Injury Compensation 

Form and Death Compensation Form. 

The Special Master shall develop a 

Personal Injury Compensation Form that 

each injured claimant must submit. The 

Special Master shall also develop a 

Death Compensation 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) 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. The 

Special Master may, at the Special 

Master’s discretion, require that 

claimants submit copies of tax returns 

or other records for any other period of 

years 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, 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 

claim is deemed filed pursuant to 

§ 104.21, regardless of whether any time 

limits are stayed or tolled. 


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(e) Amendment of claims. A claimant 

who has previously submitted a claim 

may amend such claim to include 

(1) An injury 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; and 

(4) Claims for which the individual is 

an eligible claimant as a result of 

amendments contained in the James 

Zadroga 9/11 Health and Compensation 

Act of 2010, Title II of Public Law 111– 

347. 

(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 

§ 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’’ (pursuant to § 104.21(a)) 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 

§§ 104.43 to 104.46 of this part and, 

within 75 days of the date the claim was 

deemed filed, notify the claimant in 

writing of the eligibility determination, 

the amount of the presumed award, and 

the right to request a hearing before the 

Special Master or her designee under 

§ 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 § 104.33. 

Claimants found to be ineligible may 

appeal pursuant to § 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. 

§ 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. 

§ 104.33 Hearing. 

(a) Supplemental submissions. The 

claimant may prepare and file 

Supplemental Submissions within 21 

calendar days from notification of the 

presumed award. The Special Master 

shall develop forms appropriate for 

Supplemental Submissions. 

(b) 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. 

(c) 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. 

(d) 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. 

(e) Waivers. The Special Master shall 

have authority and discretion to require 

any waivers necessary to obtain more 

individualized information on specific 

claimants. 

(f) 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 

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. 

(g) 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. 

§ 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. 

§ 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 five-year program to requests for 

additional information. Claims 

outstanding at the end of this program 

because of a claimant’s failure to 


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complete his or her filings shall be 

deemed abandoned. 

Subpart D—Amount of Compensation 

for Eligible Claimants 

§ 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 terroristrelated aircraft crashes of September 11, 

2001. In no event shall an award (before 

collateral source compensation has been 

deducted) be less than $500,000 in any 

case brought on behalf of a deceased 

victim with a spouse or dependent, or 

$300,000 in any case brought on behalf 

of a deceased victim who was single 

with no dependents. 

§ 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. 

§ 104.43 Determination of presumed 

economic loss for decedents. 

In reaching presumed determinations 

for economic loss for Personal 

Representatives bringing claims on 

behalf of 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, shall develop 

a methodology and publish 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. The Special 

Master’s methodology and schedules, 

tables, or charts shall yield presumed 

determinations of loss of earnings or 

other benefits related to employment for 

annual incomes up to but not beyond 

the 98th percentile of individual income 

in the United States for the year 

preceding the year of death. 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 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 for 

which the claimant was not charged). 

This loss shall be calculated on a caseby-case basis, using documentation and 

other information submitted by the 

Personal Representative. 

(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 caseby-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 

outlined above in paragraph (a) of this 

section. 

§ 104.44 Determination of presumed 

noneconomic losses for decedents. 

The presumed non-economic losses 

for decedents 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. 

§ 104.45 Determination of presumed 

economic loss for claimants who suffered 

physical harm. 

In reaching presumed determinations 

for economic loss for claimants who 

suffered 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 § 104.43(a) and adjusting 

the loss based upon the extent of the 

victim’s physical harm. 

(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 injuries. 

(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. The 

Special Master may require that the 

claimant submit an evaluation of the 

claimant’s disability and ability to 


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perform his or her occupation prepared 

by medical experts. 

(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 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 for 

which the claimant was not charged). In 

addition, this loss equals future out-ofpocket medical expenses that will be 

incurred as a result of the physical harm 

suffered by the victim (i.e., those 

medical expenses that will not be paid 

for or reimbursed through health 

insurance). These losses shall be 

calculated on a case-by-case basis, using 

documentation and other information 

submitted by the claimant. 

(c) Replacement services loss. For 

injured claimants 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 of business or employment 

opportunities. Such losses shall be 

addressed through the procedure 

outlined above in paragraph (a) of this 

section. 

§ 104.46 Determination of presumed 

noneconomic losses for claimants who 

suffered physical harm. 

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 

§ 104.44 and adjusting the losses based 

upon the extent of the victim’s physical 

harm. Such presumed losses include 

any noneconomic component of 

replacement services loss. 

§ 104.47 Collateral sources. 

(a) Payments that constitute collateral 

source compensation. The amount of 

compensation shall be reduced by all 

collateral source compensation, 

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, including under the World 

Trade Center Health Program 

established under section 3001 of the 

Public Health Service Act, 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 selfcontributions 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 

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 

§ 104.51 Payments to eligible individuals. 

(a) Payment date. Subject to 

subsection (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) Pro-ration and payment of 

remaining claims. The James Zadroga 

9/11 Health and Compensation Act of 

2010, Title II of Public Law 111–347, 

requires that the total amount of Federal 

funds paid for expenditures including 

compensation with respect to claims 

filed on or after [OPEN DATE], 2011 

will not exceed $2,775,000,000. 

Furthermore, the total amount of 

Federal funds expended during the 

period from [EFFECTIVE DATE OF 

FINAL RULE], through [DATE 5 YEARS 

AFTER EFFECTIVE DATE OF FINAL 

RULE], may not exceed $875,000,000. 

(1) In general. The Special Master 

shall ratably reduce the amount of 

compensation due claimants in a 

manner to ensure, to the extent possible, 

that all claimants who are determined to 

be entitled to a payment receive a 

payment during the period from 

[EFFECTIVE DATE OF FINAL RULE], to 

[DATE 5 YEARS AFTER EFFECTIVE 

DATE OF FINAL RULE], and that the 

total amount of all such payments made 

during that 5-year period do not exceed 

the amount available under law during 

that period. The Special Master may 

periodically adjust the method of ratable 

reduction in light of available 

information regarding potential future 

claims and available funds. 

(2) Subsequent payments. Subject to 

paragraph (c)(3) of this section, in any 

case in which the amount of a claim is 

ratably reduced pursuant to paragraph 

(c)(1) of this section, on or after [DATE 

5 YEARS AFTER EFFECTIVE DATE OF 

FINAL RULE], but in no event later than 

[DATE 6 YEARS AFTER EFFECTIVE 

DATE OF FINAL RULE], the Special 

Master shall pay to the claimant the 

amount that is equal to the difference 

between: 

(i) The amount that the claimant 

would have been paid under the 

presumed award; and 

(ii) The amount the claimant was paid 

during the period from [EFFECTIVE 

DATE OF FINAL RULE], 2011 to [DATE 

5 YEARS AFTER EFFECTIVE DATE OF 

FINAL RULE]. 

(3) In the event that the total amount 

of all claims under paragraph (c)(2) of 

this section exceeds the amount 

available under law, the Special Master 


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shall ratably reduce the amount of 

compensation due claimants in a 

manner to ensure, to the extent possible, 

that all claimants who are determined to 

be entitled to an additional payment 

receive their pro-rated share of the 

available funds. 

§ 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 Personal 

Representative shall, before payment is 

authorized, provide to the Special 

Master a plan for distribution of any 

award received from the Fund. 

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 

§ 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 [DATE 90 DAYS AFTER 

EFFECTIVE DATE OF FINAL RULE]. 

(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. 

§ 104.62 Time limit on filing claims. 

(a) In general. A claim may be filed by 

an individual (or by a personal 

representative on behalf of a deceased 

individual) during the period beginning 

on [EFFECTIVE DATE OF FINAL 

RULE], and ending on [DATE 5 YEARS 

AFTER EFFECTIVE DATE OF FINAL 

RULE], as follows: 

(1) In the case that the individual 

knew (or reasonably should have 

known) before [EFFECTIVE DATE OF 

FINAL RULE], 2011 that the individual 

suffered a physical harm at a 9/11 crash 

site as a result of the terrorist-related 

aircraft crashes of September 11, 2001, 

or as a result of debris removal, and that 

the individual knew (or should have 

known) before such specified date that 

the individual was eligible to file a 

claim under this title, the individual 

may file a claim not later than [DATE 2 

YEARS AFTER EFFECTIVE DATE OF 

FINAL RULE]. 

(2) In the case that the individual first 

knew (or reasonably should have 

known) on or after [EFFECTIVE DATE 

OF FINAL RULE], that the individual 

suffered such a physical harm or that 

the individual first knew (or should 

have known) on or after that date that 

the individual was eligible to file a 

claim under this title, the individual 

may file a claim not later than the last 

day of the 2-year period beginning on 

the date that the individual 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 

[DATE 5 YEARS AFTER EFFECTIVE 

DATE OF FINAL RULE]. 

(b) Determination by Special Master. 

The Special Master or the Special 

Master’s designee should determine the 

timeliness of all claims under paragraph 

(a) of this section. 

§ 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. 

Subpart G—Measures To Protect the 

Integrity of the Compensation Program 

§ 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 

§ 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, more than 10 

percent of an award paid under this title 

on such claim. 

(2) Certification. In the case of any 

claim in connection with which 

servicers 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 that 

individual any amount for 

compensation for services rendered in 

connection with a claim filed 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 


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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— 

(i) Ten (10) percent of such aggregate 

amount through the settlement, minus 

(ii) 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 16, 2011. 

Sheila L. Birnbaum, 

Special Master. 

[FR Doc. 2011–15459 Filed 6–20–11; 8:45 am] 

BILLING CODE 4410–12–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 906 

[SATS No. CO–040–FOR, Docket ID: OSM– 

2011–0002] 

Colorado Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Proposed rule; public comment 

period and opportunity for public 

hearing on proposed amendment. 

SUMMARY: We are announcing receipt of 

a proposed amendment to the Colorado 

regulatory program (hereinafter, the 

‘‘Colorado program’’) under the Surface 

Mining Control and Reclamation Act of 

1977 (‘‘SMCRA’’ or ‘‘the Act’’). Colorado 

proposes both additions of and revisions 

to the rules and regulations of the 

Colorado Mined Land Reclamation 

Board for Coal Mining, concerning valid 

existing rights, ownership and control, 

and other regulatory issues. Colorado 

intends to revise its program to be 

consistent with the corresponding 

Federal regulations and SMCRA, clarify 

ambiguities, and improve operational 

efficiency. 

This document gives the times and 

locations that the Colorado program and 

proposed amendment to that program 

are available for your inspection, the 

comment period during which you may 

submit written comments on the 

amendment, and the procedures that we 

will follow for the public hearing, if one 

is requested. 

DATES: We will accept written 

comments on this amendment until 4 

p.m., mountain standard time July 21, 

2011. If requested, we will hold a public 

hearing on the amendment on July 18, 

2011. We will accept requests to speak 

until 4 p.m., mountain standard time, 

on July 6, 2011. 

ADDRESSES: You may submit comments, 

identified by ‘‘CO–040–FOR’’, using any 

of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. The proposed rule 

has been assigned Docket ID OSM– 

2011–0002. If you would like to submit 

comments via the Federal eRulemaking 

portal, go to http://www.regulations.gov 

and follow the instructions. 

• Mail, Hand Delivery/Courier: 

Kenneth Walker, Chief, Denver Field 

Division, Office of Surface Mining 

Reclamation and Enforcement, 1999 

Broadway, Suite 3320, Denver, CO 

80202, Phone: (303) 293–5012, Fax: 

(303) 293–5058, E-mail: 

kwalker@osmre.gov. 

Instructions: All submissions received 

must include the agency name and 

‘‘CO–040–FOR.’’ For detailed 

instructions on submitting comments 

and additional information on the 

rulemaking process, see the Public 

Comment Procedures heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: Access to the docket to review 

copies of the Colorado program, this 

amendment, a listing of any scheduled 

public hearings, and all written 

comments received in response to this 

document, may be obtained at the 

addresses listed below during normal 

business hours, Monday through Friday, 

excluding holidays. You may receive 

one free copy of the amendment by 

contacting the Office of Surface Mining 

Reclamation and Enforcement’s (OSM’s) 

Denver Field Division. In addition, you 

may review a copy of the amendment 

during regular business hours at the 

following locations: 

Kenneth Walker, Chief, Denver Field 

Division, Office of Surface Mining 

Reclamation and Enforcement, 1999 

Broadway, Suite 3320, Denver, CO 

80202, Phone: (303) 293–5012, Fax: 

(303) 293–5058, E-mail: 

kwalker@osmre.gov. 

David Berry, Director, Office of Mined 

Land Reclamation, Colorado Division of 

Reclamation, Mining, and Safety, 

Department of Natural Resources, 1313 

Sherman Street, Suite 215, Denver, CO 

80203, E-mail: David.Berry@state.co.us. 

Or anytime at: http:// 

www.regulations.gov, Docket ID OSM– 

2011–0002. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Colorado Program 

II. Description of the Proposed Amendment 

III. Public Comment Procedures 

IV. Procedural Determinations 

I. Background on the Colorado Program 

Section 503(a) of the Act permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its State program 

includes, among other things, ‘‘a State 

law which provides for the regulation of 

surface coal mining and reclamation 

operations in accordance with the 

requirements of this Act * * *; and 

rules and regulations consistent with 

regulations issued by the Secretary 

pursuant to this Act.’’ See 30 U.S.C. 

1253(a)(1) and (7). On the basis of these 

criteria, the Secretary of the Interior 

conditionally approved the Colorado 

program on December 15, 1980. You can 

find background information on the 

Colorado program, including the 

Secretary’s findings, the disposition of 

comments, and the conditions of 

approval of the Colorado program in the 

December 15, 1980, Federal Register (45 

FR 82173). You can also find later 

actions concerning Colorado’s program 

and program amendments at 30 CFR 

906.10, 906.15, 906.16, and 906.30. 

II. Description of the Proposed 

Amendment 

By letter dated April 8, 2011, 

Colorado sent us a proposed 

amendment to its approved regulatory 

program (Administrative Record Docket 

ID No. OSM–2011–0002) under SMCRA 

(30 U.S.C. 1201 et seq.). Colorado 

submitted the amendment to address all 

required rule changes OSM identified 

by letters to Colorado dated April 4, 

2008, and October 2, 2009, under 30 

CFR 732.17(c). These included changes 

to Colorado’s rules for valid existing 

rights and ownership and control. The 

amendment also includes changes made 

at Colorado’s own initiative. The full 

text of the program amendment is 

available for you to read at the locations 

listed above under ADDRESSES. 

Specifically, Colorado proposes 

substantive revisions to the Colorado 

Code of Regulations at 2 CCR 407–2 

Rules 1.07 (Procedures for Valid 

Existing Rights Determinations), 2.01 

(General Requirements for Permits), 2.02 

(General Requirements for Coal 

Exploration), 2.03 (Application for 

Permit for Surface Coal Mining and 

Reclamation Operations: Minimum 


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