I

106TH CONGRESS

2D SESSION H. R. 5160

To provide compensation to wheat producers and elevator operators who

sold wheat between May 2, 1993, and January 24, 1994, when the

Federal Grain Inspection Service maintained erroneous standards for

official inspections of wheat protein content.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 12, 2000

Mr. POMEROY introduced the following bill; which was referred to the

Committee on the Judiciary

A BILL

To provide compensation to wheat producers and elevator

operators who sold wheat between May 2, 1993, and

January 24, 1994, when the Federal Grain Inspection

Service maintained erroneous standards for official inspections of wheat protein content.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Wheat Protein

5 Mismeasurement Compensation Act’’.
2

•HR 5160 IH

1 SEC. 2. COMPENSATION FOR UNDERESTIMATION OF

2 WHEAT PROTEIN CONTENT.

3 (a) AUTHORIZATION FOR COMPENSATION.—

4 (1) IN GENERAL.—The United States shall pay

5 such amount as is necessary to compensate wheat

6 producers and elevator operators for lost revenue on

7 the sale of wheat, and lost earnings thereon, result8 ing from the adoption by the Federal Grain Inspec9 tion Service in May 1993, of erroneous protein

10 measurement standards based on miscalibrated Near

11 Infrared Transmittance (hereinafter in this Act re12 ferred to as ‘‘NIRT’’) instruments.

13 (2) SETTLEMENT AGREEMENT.—After notifying

14 each known eligible person of the provisions of this

15 Act at the person’s last known address via first class

16 mail, the Secretary of Agriculture shall negotiate a

17 settlement agreement with the class representatives

18 and their attorneys of record on behalf of the class

19 of claimants in the case of Gollehon Farming v.

20 United States, 117 F. Supp. 2d 1145 (D. Mont.

21 1998), aff’d, 207 F.3d 1373 (Fed. Cir. 2000), in ac22 cordance with the provisions of this Act. Pursuant to

23 the settlement agreement, the United States will pay

24 a lump-sum amount into a settlement trust, and the

25 principal and income of the trust shall be distributed

26 in accordance with the settlement agreement and the
3

•HR 5160 IH

1 orders of the court. The amount of the lump-sum

2 shall be not greater than $152,400,000, plus the

3 amounts of interest, reimbursements, and reserves

4 determined in accordance with subsections (d) and

5 (e). The settlement shall be subject to court ap6 proval.

7 (b) PERSONS ELIGIBLE FOR RELIEF.—Persons eligi8 ble for compensation pursuant to subsection (a) shall con9 sist of the following:

10 (1) WHEAT PRODUCERS.—All wheat producers

11 in the United States who sold wheat between May

12 2, 1993, and January 24, 1994, inclusive, for a

13 price determined wholly or in part with reference to

14 measured or estimated protein content.

15 (2) ELEVATOR OPERATORS.—All independent

16 country grain elevator operators in the United

17 States (and any persons who purchased wheat from

18 such operators) who resold wheat at a loss resulting

19 from the change to NIRT.

20 (c) REQUIRED SHOWING.—A claimant shall be enti21 tled to compensation pursuant to subsection (a) upon a

22 showing of—

23 (1) membership in the class of persons eligible

24 for compensation as described in subsection (b); and
4

•HR 5160 IH

1 (2) the number of bushels of wheat sold during

2 the period May 2, 1993, through January 24, 1994,

3 inclusive, and any other information required by the

4 settlement agreement.

5 (d) AMOUNT OF INDIVIDUAL COMPENSATION.—

6 (1) GROSS AMOUNT.—The gross amount of

7 compensation payable to an individual claimant shall

8 be determined in accordance with a formula which

9 may be negotiated as part of the settlement agree10 ment, or determined by the settlement trustee in ac11 cordance with applicable orders of the court, or both.

12 The formula for determining the gross amounts of

13 individual claims shall be based primarily upon the

14 number of bushels of wheat sold by the claimant

15 during the period from May 2, 1993, through Janu16 ary 24, 1994, and may also take into account any

17 other relevant factors, including the type and grade

18 of wheat sold, location of crop land, estimated pro19 tein content, date of harvest, and date of sale. In

20 any event, the average gross amount shall be equal

21 to $0.30 per bushel, plus interest as determined in

22 accordance with paragraph (2) and reimbursement

23 of costs and attorneys’ fees as provided in subsection

24 (e), subject to the provisions of subsection (e)(2).
5

•HR 5160 IH

1 (2) INTEREST.—The interest component of

2 each claimant’s individual gross amount shall be

3 computed at the rates in effect under section

4 6621(a)(1) of the Internal Revenue Code of 1986.

5 Such interest shall be limited to the period from

6 January 1, 1994, until the date on which the lump7 sum amount is paid into the settlement trust.

8 (e) PROCEDURES REGARDING SETTLEMENT.—

9 (1) NEGOTIATED SETTLEMENT.—The Secretary

10 shall negotiate a settlement with the Gollehon Farm11 ing class representatives and their attorneys of

12 record, on behalf of the entire class of persons eligi13 ble for compensation as described in subsection (b),

14 which settlement shall determine and set forth the

15 following:

16 (A) AGGREGATE AMOUNT.—The aggregate

17 amount that is reasonably estimated to be nec18 essary to fully compensate all members of the

19 class as provided in subsection (d), including in20 terest and reimbursement of attorney’s fees and

21 expenses, which amount shall be paid into a set22 tlement trust to be administered in accordance

23 with the terms and conditions of the settlement

24 agreement and the orders of the court.
6

•HR 5160 IH

1 (B) RESERVE.—An additional amount

2 equal to 25 percent of the amount determined

3 in accordance with subparagraph (A) to be paid

4 into the settlement trust and used as a reserve

5 in case the aggregate amount determined in ac6 cordance with subparagraph (A) proves to be

7 insufficient to fully compensate all class mem8 bers, and provisions governing the disposition of

9 any amounts that remain in the trust upon its

10 termination, after payment of all fees and ex11 penses.

12 (C) PROCEDURES AND SCHEDULE.—The

13 procedures and schedule for identifying mem14 bers of the class of persons eligible for com15 pensation and paying their claims, including the

16 use of information available to the Secretary for

17 identifying potential claimants and quantifying

18 individual claims.

19 (D) PAYMENT OF FEES AND EXPENSES.—

20 Provisions regarding the investment of trust

21 funds and the use of trust earnings to pay all

22 or part of the fees and expenses associated with

23 settlement implementation, trust administra24 tion, and legal representation.
7

•HR 5160 IH

1 (E) OTHER PROVISIONS.—Any other provi2 sions that are reasonable and appropriate for

3 achieving the purposes of this Act.

4 (2) PROPORTIONAL REDUCTIONS.—In the event

5 that the aggregate gross amount of individual claims

6 as determined in accordance with subsection (d) ex7 ceeds the estimated and reserve amounts determined

8 pursuant to subparagraphs (A) and (B) of para9 graph (1), the amounts computed for individual

10 claimants shall be proportionally reduced so that the

11 aggregate amount of individual net payments equals

12 such estimated and reserve amounts.

13 (3) STIPULATION.—A stipulation setting forth

14 the terms of the settlement shall be filed in the

15 Gollehon Farming case, or in a new case filed for

16 such purpose by the Gollehon Farming plaintiffs and

17 their attorneys in a United States district court or

18 the United States Court of Federal Claims, and

19 shall become final upon the approval of the court.

20 (4) ATTORNEY’S FEES.—Attorney’s fees pay21 able from the trust in connection with claims com22 pensated pursuant to this Act shall be determined in

23 accordance with the maximum rate provided by sec24 tion 2678 of title 28, United States Code. To the ex25 tent that such fees are not payable through deduc-
8

•HR 5160 IH

1 tions from individual claims, they shall be payable

2 from trust earnings, trust principal in excess of the

3 aggregate amount of individual claims, and trust

4 principal held for class members who cannot be lo5 cated and paid.

6 (5) USE OF AMOUNTS REMAINING IN TRUST

7 AFTER PAYMENTS.—The settlement agreement may

8 provide that any amounts remaining in the trust

9 after the time period for paying individual claims

10 has expired, and after payment of all fees and ex11 penses, are to be used for one or both of the fol12 lowing purposes:

13 (A) STUDY.—A study and report to Con14 gress, by an appropriate commission of lawyers

15 and other experts, on statutory changes that

16 are recommended for purposes of securing full

17 and fair compensation to persons who suffer

18 losses as a result of negligent or unlawful ac19 tions by agents and employees of the United

20 States.

21 (B) PROGRAMS.—Programs of benefit to

22 farmers who produce wheat that is sold for a

23 price determined wholly or in part with ref24 erence to measured or estimated protein con25 tent.
9

•HR 5160 IH

1 (f) WAIVER OF CONDITIONS AND LIMITATIONS.—Eli2 gible persons as defined in subsection (b) shall be entitled

3 to receive compensation as provided herein notwith4 standing their noncompliance with section 2675 of title

5 28, United States Code, and notwithstanding any previous

6 denial of their claims or any previous judgment of any

7 court to the contrary, including the judgment in Gollehon

8 Farming, and their claims shall not be subject to any limi9 tation periods for asserting such claims, including the limi10 tations in section 2401 of title 28, United States Code.

11 (g) SOURCE OF PAYMENT.—Notwithstanding any

12 other provision of law, the amount of the lump-sum settle13 ment negotiated by the Secretary pursuant to subsection

14 (e) shall be paid from the appropriation made by section

15 1304 of title 31, United States Code.

16 (h) FULL SETTLEMENT.—The payment authorized

17 by this Act shall be in full satisfaction of all claims in

18 connection with lost revenue on the sale of wheat, and lost

19 earnings thereon, resulting from the adoption by the Fed20 eral Grain Inspection Service in May 1993, of erroneous

21 protein measurement standards based on miscalibrated

22 NIRT instruments.

Æ