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[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 2736 Introduced in Senate (IS)]

106th CONGRESS
  2d Session
                                S. 2736

   To provide compensation for victims of the fire initiated by the 
   National Park Service at Bandelier National Monument, New Mexico.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             June 15, 2000

 Mr. Domenici (for himself and Mr. Bingaman) introduced the following 
bill; which was read twice and referred to the Committee on Environment 
                            and Public Works

_______________________________________________________________________

                                 A BILL

 
   To provide compensation for victims of the fire initiated by the 
   National Park Service at Bandelier National Monument, New Mexico.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Cerro Grande Fire Assistance Act''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds that--
            (1) on May 4, 2000, the National Park Service initiated a 
        prescribed burn on Federal land at Bandelier National Monument 
        in New Mexico during the peak of the fire season in the 
        Southwest;
            (2) on May 5, 2000, the prescribed burn, which became known 
        as the ``Cerro Grande Prescribed Fire'', exceeded the 
        containment capabilities of the National Park Service, was 
        reclassified as a wildland burn, and spread to other Federal 
        and non-Federal land, quickly becoming characterized as a 
        wildfire;
            (3) by May 7, 2000, the fire had grown in size and caused 
        evacuations in and around Los Alamos, New Mexico, including the 
        Los Alamos National Laboratory, 1 of the leading national 
        research laboratories in the United States and the birthplace 
        of the atomic bomb;
            (4) on May 13, 2000, the President issued a major disaster 
        declaration for the counties of Bernalillo, Cibola, Los Alamos, 
        McKinley, Mora, Rio Arriba, Sandoval, San Juan, San Miguel, 
        Santa Fe, Taos, and Torrance, New Mexico;
            (5) the fire resulted in the loss of Federal, State, local, 
        tribal, and private property;
            (6) the Secretary of the Interior and the National Park 
        Service have assumed responsibility for the fire and subsequent 
        losses of property; and
            (7) the United States should compensate the victims of the 
        Cerro Grande fire.
    (b) Purposes.--The purposes of this Act are--
            (1) to compensate victims of the fire at Cerro Grande, New 
        Mexico, for injuries resulting from the fire; and
            (2) to provide for the expeditious consideration and 
        settlement of claims for those injuries.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Cerro grande fire.--The term ``Cerro Grande fire'' 
        means the fire resulting from the initiation by the National 
        Park Service of a prescribed burn at Bandelier National 
        Monument, New Mexico, on May 4, 2000.
            (2) Director.--The term ``Director'' means--
                    (A) the Director of the Federal Emergency 
                Management Agency; or
                    (B) if a Manager is appointed under section 
                4(a)(3), the Manager.
            (3) Injured person.--The term ``injured person'' means--
                    (A) an individual, regardless of the citizenship or 
                alien status of the individual; or
                    (B) an Indian tribe, corporation, tribal 
                corporation, partnership, company, association, county, 
                township, city, State, school district, or other non-
                Federal entity (including a legal representative);
        that suffered injury resulting from the Cerro Grande fire.
            (4) Injury.--The term ``injury'' has the same meaning as 
        the term ``injury or loss of property, or personal injury or 
        death'' as used in section 1346(b)(1) of title 28, United 
        States Code.
            (5) Manager.--The term ``Manager'' means an Independent 
        Claims Manager appointed under section 4(a)(3).
            (6) Office.--The term ``Office'' means the Office of Cerro 
        Grande Fire Claims established by section 4(a)(2).

SEC. 4. COMPENSATION FOR VICTIMS OF CERRO GRANDE FIRE.

    (a) In General.--
            (1) Compensation.--Each injured person shall be entitled to 
        receive from the United States compensation for injury suffered 
        by the injured person as a result of the Cerro Grande fire.
            (2) Office of cerro grande fire claims.--
                    (A) In general.--There is established within the 
                Federal Emergency Management Agency an Office of Cerro 
                Grande Fire Claims.
                    (B) Purpose.--The Office shall receive, process, 
                and pay claims in accordance with this title.
                    (C) Funding.--The Office--
                            (i) shall be funded from funds made 
                        available to the Director under this title; and
                            (ii) may reimburse other Federal agencies 
                        for claims processing support and assistance.
            (3) Option to appoint independent claims manager.--The 
        Director may appoint an Independent Claims Manager to--
                    (A) head the Office; and
                    (B) assume the duties of the Director under this 
                Act.
    (b) Submission of Claims.--Not later than 2 years after the date on 
which regulations are first promulgated under subsection (f), an 
injured person may submit to the Director a written claim for 1 or more 
injuries suffered by the injured person in accordance with such 
requirements as the Director determines to be appropriate.
    (c) Investigation of Claims.--
            (1) In general.--The Director shall, on behalf of the 
        United States, investigate, consider, ascertain, adjust, 
        determine, grant, deny, or settle any claim for money damages 
        asserted under subsection (b).
            (2) Applicability of state law.--Except as otherwise 
        provided in this Act, the laws of the State of New Mexico shall 
        apply to the calculation of damages under subsection (d)(4).
            (3) Extent of damages.--Any payment under this Act--
                    (A) shall be limited to actual compensatory damages 
                measured by injuries suffered; and
                    (B) shall not include--
                            (i) interest before settlement or payment 
                        of a claim; or
                            (ii) punitive damages.
    (d) Payment of Claims.--
            (1) Determination and payment of amount.--
                    (A) In general.--
                            (i) Payment.--Not later than 180 days after 
                        the date on which a claim is submitted under 
                        this Act, the Director shall determine and fix 
                        the amount, if any, to be paid for the claim.
                            (ii) Priority.--The Director, to the 
                        maximum extent practicable, shall pay 
                        subrogation claims submitted under this Act 
                        only after paying claims submitted by injured 
                        parties that are not insurance companies 
                        seeking payment as subrogees.
                    (B) Parameters of determination.--In determining 
                and settling a claim under this Act, the Director shall 
                determine only--
                            (i) whether the claimant is an injured 
                        person;
                            (ii) whether the injury that is the subject 
                        of the claim resulted from the fire;
                            (iii) the amount, if any, to be allowed and 
                        paid under this Act; and
                            (iv) the person or persons entitled to 
                        receive the amount.
                    (C) Insurance and other benefits.--
                            (i) In general.--In determining the amount 
                        of, and paying, a claim under this Act, to 
                        prevent recovery by a claimant in excess of 
                        actual compensatory damages, the Director shall 
                        reduce the amount to be paid for the claim by 
                        an amount that is equal to the total of 
                        insurance benefits (excluding life insurance 
                        benefits) or other payments or settlements of 
                        any nature that were paid, or will be paid, 
                        with respect to the claim.
                            (ii) Government loans.--This subparagraph 
                        shall not apply to the receipt by a claimant of 
                        any government loan that is required to be 
                        repaid by the claimant.
            (2) Partial payment.--
                    (A) In general.--At the request of a claimant, the 
                Director may make 1 or more advance or partial payments 
                before the final settlement of a claim, including final 
                settlement on any portion or aspect of a claim that is 
                determined to be severable.
                    (B) Judicial decision.--If a claimant receives a 
                partial payment on a claim under this Act, but further 
                payment on the claim is subsequently denied by the 
                Director, the claimant may--
                            (i) seek judicial review under subsection 
                        (i); and
                            (ii) keep any partial payment that the 
                        claimant received, unless the Director 
                        determines that the claimant--
                                    (I) was not eligible to receive the 
                                compensation; or
                                    (II) fraudulently procured the 
                                compensation.
            (3) Rights of insurer or other third party.--If an insurer 
        or other third party pays any amount to a claimant to 
        compensate for an injury described in subsection (a), the 
        insurer or other third party shall be subrogated to any right 
        that the claimant has to receive any payment under this Act or 
        any other law.
            (4) Allowable damages.--
                    (A) Loss of property.--A claim that is paid for 
                loss of property under this Act may include otherwise 
                uncompensated damages resulting from the Cerro Grande 
                fire for--
                            (i) an uninsured or underinsured property 
                        loss;
                            (ii) a decrease in the value of real 
                        property;
                            (iii) damage to physical infrastructure;
                            (iv) a cost resulting from lost tribal 
                        subsistence from hunting, fishing, firewood 
                        gathering, timbering, grazing, or agricultural 
                        activities conducted on land damaged by the 
                        Cerro Grande fire;
                            (v) a cost of reforestation or revegetation 
                        on tribal or non-Federal land, to the extent 
                        that the cost of reforestation or revegetation 
                        is not covered by any other Federal program; 
                        and
                            (vi) any other loss that the Director 
                        determines to be appropriate for inclusion as 
                        loss of property.
                    (B) Business loss.--A claim that is paid for injury 
                under this Act may include damages resulting from the 
                Cerro Grande fire for the following types of otherwise 
                uncompensated business loss:
                            (i) Damage to tangible assets or inventory.
                            (ii) Business interruption losses.
                            (iii) Overhead costs.
                            (iv) Employee wages for work not performed.
                            (v) Any other loss that the Director 
                        determines to be appropriate for inclusion as 
                        business loss.
                    (C) Financial loss.--A claim that is paid for 
                injury under this Act may include damages resulting 
                from the Cerro Grande fire for the following types of 
                otherwise uncompensated financial loss:
                            (i) Increased mortgage interest costs.
                            (ii) An insurance deductible.
                            (iii) A temporary living or relocation 
                        expense.
                            (iv) Lost wages or personal income.
                            (v) Emergency staffing expenses.
                            (vi) Debris removal and other cleanup 
                        costs.
                            (vii) Costs of reasonable efforts, as 
                        determined by the Director, to reduce the risk 
                        of wildfire, flood, or other natural disaster 
                        in the counties specified in section 2(a)(4), 
                        to risk levels prevailing in those counties 
                        before the Cerro Grande fire, that are incurred 
                        not later than the date that is 3 years after 
                        the date on which the regulations under 
                        subsection (f) are first promulgated.
                            (viii) A premium for flood insurance that 
                        is required to be paid on or before May 12, 
                        2002, if, as a result of the Cerro Grande fire, 
                        a person that was not required to purchase 
                        flood insurance before the Cerro Grande fire is 
                        required to purchase flood insurance.
                            (ix) Any other loss that the Director 
                        determines to be appropriate for inclusion as 
                        financial loss.
    (e) Acceptance of Award.--The acceptance by a claimant of any 
payment under this Act, except an advance or partial payment made under 
subsection (d)(2), shall--
            (1) be final and conclusive on the claimant, with respect 
        to all claims arising out of or relating to the same subject 
        matter; and
            (2) constitute a complete release of all claims against the 
        United States (including any agency or employee of the United 
        States) under chapter 171 of title 28, United States Code 
        (commonly known as the ``Federal Tort Claims Act''), or any 
        other Federal or State law, arising out of or relating to the 
        same subject matter.
    (f) Regulations and Public Information.--
            (1) Regulations.--Notwithstanding any other provision of 
        law, not later than 45 days after the date of enactment of this 
        Act, the Director shall promulgate and publish in the Federal 
        Register interim final regulations for the processing and 
        payment of claims under this Act.
            (2) Public information.--
                    (A) In general.--At the time at which the Director 
                promulgates regulations under paragraph (1), the 
                Director shall publish, in newspapers of general 
                circulation in the State of New Mexico, a clear, 
                concise, and easily understandable explanation, in 
                English and Spanish, of--
                            (i) the rights conferred under this Act; 
                        and
                            (ii) the procedural and other requirements 
                        of the regulations promulgated under paragraph 
                        (1).
                    (B) Dissemination through other media.--The 
                Director shall disseminate the explanation published 
                under subparagraph (A) through brochures, pamphlets, 
                radio, television, and other media that the Director 
                determines are likely to reach prospective claimants.
    (g) Consultation.--In administering this Act, the Director shall 
consult with the Secretary of the Interior, the Secretary of Energy, 
the Secretary of Agriculture, the Administrator of the Small Business 
Administration, other Federal agencies, and State, local, and tribal 
authorities, as determined to be necessary by the Director to--
            (1) ensure the efficient administration of the claims 
        process; and
            (2) provide for local concerns.
    (h) Election of Remedy.--
            (1) In general.--An injured person may elect to seek 
        compensation from the United States for 1 or more injuries 
        resulting from the Cerro Grande fire by--
                    (A) submitting a claim under this Act;
                    (B) filing a claim or bringing a civil action under 
                chapter 171 of title 28, United States Code; or
                    (C) bringing an authorized civil action under any 
                other provision of law.
            (2) Effect of election.--An election by an injured person 
        to seek compensation in any manner described in paragraph (1) 
        shall be final and conclusive on the claimant with respect to 
        all injuries resulting from the Cerro Grande fire that are 
        suffered by the claimant.
            (3) Arbitration.--
                    (A) In general.--Not later than 45 days after the 
                date of enactment of this Act, the Director shall 
                establish by regulation procedures under which a 
                dispute regarding a claim submitted under this Act may 
                be settled by arbitration.
                    (B) Arbitration as remedy.--On establishment of 
                arbitration procedures under subparagraph (A), an 
                injured person that submits a disputed claim under this 
                Act may elect to settle the claim through arbitration.
                    (C) Binding effect.--An election by an injured 
                person to settle a claim through arbitration under this 
                paragraph shall--
                            (i) be binding; and
                            (ii) preclude any exercise by the injured 
                        person of the right to judicial review of a 
                        claim described in subsection (i).
            (4) No effect on entitlements.--Nothing in this Act affects 
        any right of a claimant to file a claim for benefits under any 
        Federal entitlement program.
    (i) Judicial Review.--
            (1) In general.--Any claimant aggrieved by a final decision 
        of the Director under this Act may, not later than 60 days 
        after the date on which the decision is issued, bring a civil 
        action in the United States District Court for the District of 
        New Mexico, to modify or set aside the decision, in whole or in 
        part.
            (2) Record.--The court shall hear a civil action under 
        paragraph (1) on the record made before the Director.
            (3) Standard.--The decision of the Director incorporating 
        the findings of the Director shall be upheld if the decision is 
        supported by substantial evidence on the record considered as a 
        whole.
    (j) Attorney's and Agent's Fees.--
            (1) In general.--No attorney or agent, acting alone or in 
        combination with any other attorney or agent, shall charge, 
        demand, receive, or collect, for services rendered in 
        connection with a claim submitted under this Act, fees in 
        excess of 10 percent of the amount of any payment on the claim.
            (2) Violation.--An attorney or agent who violates paragraph 
        (1) shall be fined not more than $10,000.
    (k) Waiver of Requirement for Matching Funds.--
            (1) In general.--Notwithstanding any other provision of 
        law, a State or local project that is determined by the 
        Director to be carried out in response to the Cerro Grande fire 
        under any Federal program that applies to an area affected by 
        the Cerro Grande fire shall not be subject to any requirement 
        for State or local matching funds to pay the cost of the 
        project under the Federal program.
            (2) Federal share.--The Federal share of the costs of a 
        project described in paragraph (1) shall be 100 percent.
    (l) Applicability of Debt Collection Requirements.--Section 3716 of 
title 31, United States Code, shall not apply to any payment under this 
Act.
    (m) Indian Compensation.--Notwithstanding any other provision of 
law, in the case of an Indian tribe, a tribal entity, or a member of an 
Indian tribe that submits a claim under this Act--
            (1) the Bureau of Indian Affairs shall have no authority 
        over, or any trust obligation regarding, any aspect of the 
        submission of, or any payment received for, the claim;
            (2) the Indian tribe, tribal entity, or member of an Indian 
        tribe shall be entitled to proceed under this Act in the same 
        manner and to the same extent as any other injured person; and
            (3) except with respect to land damaged by the Cerro Grande 
        fire that is the subject of the claim, the Bureau of Indian 
        Affairs shall have no responsibility to restore land damaged by 
        the Cerro Grande fire.
    (n) Report.--Not later than 1 year after the date of promulgation 
of regulations under subsection (f)(1), and annually thereafter, the 
Director shall submit to Congress a report that describes the claims 
submitted under this Act during the year preceding the date of 
submission of the report, including, for each claim--
            (1) the amount claimed;
            (2) a brief description of the nature of the claim; and
            (3) the status or disposition of the claim, including the 
        amount of any payment under this Act.
    (o) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as are necessary to carry out this Act.
                                 <all>
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