54112 Federal Register / Vol. 76, No. 169 / Wednesday, August 31, 2011 / Rules and Regulations 

2 In addition, a jurisdiction covered under section 

203(c) but not under section 4(f)(4) is subject to the 

Act’s special provisions if it was covered under section 4(b) prior to the 1975 Amendments to the 

Act. 

2032. See section 203(b). A covered 

jurisdiction may terminate Section 203 

coverage earlier if it can prove in a 

declaratory judgment action in a United 

States district court, that the illiteracy 

rate of the applicable language minority 

group is equal to or less than the 

national illiteracy rate, as described in 

section 203(d) of the Act. 

■ 5. Amend § 55.8 by revising paragraph 

(b) to read as follows: 

§ 55.8 Relationship between section 4(f)(4) 

and section 203(c). 

* * * * * 

(b) Jurisdictions subject to the 

requirements of section 4(f)(4)—but not 

jurisdictions subject only to the 

requirements of section 203(c)—are also 

subject to the Act’s special provisions, 

such as section 5 (regarding 

preclearance of changes in voting laws) 

and section 8 (regarding federal 

observers).2 See part 51 of this chapter. 

* * * * * 

■ 6. Amend § 55.11 by revising the last 

sentence to read as follows: 

§ 55.11 General. 

* * * For those jurisdictions covered 

under section 203(c), the coverage 

determination (indicated in the 

appendix) may specify the particular 

language minority group (in 

parentheses) for which the jurisdiction 

is covered, but does not specify the 

language or dialect to be used for such 

group. 

■ 7. Amend § 55.23 by revising 

paragraph (b) to read as follows: 

§ 55.23 Enforcement by the Attorney 

General. 

* * * * * 

(b) Also, certain violations may be 

subject to criminal sanctions. See 

sections 12(a) and (c) and 205. 

■ 8. Revise the Appendix to part 55 to 

read as follows: 

Appendix to Part 55—Jurisdictions 

Covered Under Sections 4(f)(4) and 

203(c) of the Voting Rights Act of 1965, 

as Amended [Applicable language 

minority group(s)] 

Jurisdiction Coverage under sec. 4(f)(4) 1 Coverage under sec. 203(c) 2

1 Coverage determinations for Section 4(f)(4) were published at 40 FR 43746 (Sept. 23, 1975), 40 FR 49422 (Oct. 22, 1975), 41 FR 783 (Jan. 

5, 1976) (corrected at 41 FR 1503 (Jan. 8, 1976)), and 41 FR 34329 (Aug. 13, 1976). The Voting Section maintains a current list of those jurisdictions that have maintained successful declaratory judgments from the United States District Court for the District of Columbia pursuant to section 4 of the Act on its Web site at http://www.justice.gov/crt/about/vot/. See § 55.7 of this part. 2 Coverage determinations for Section 203 based on 2000 Census data were published at 67 FR 48871 (July 26, 2002). Subsequent coverage 

determinations for Section 203 will be based on 2010 American Community Survey census data and subsequent American Community Survey 

data in 5-year increments, or comparable census data. See section 203(b)(2)(A). New coverage determinations for Section 203 by the Director of 

the Census Bureau are forthcoming. 

Dated: August 24, 2011. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2011–22160 Filed 8–30–11; 8:45 am] 

BILLING CODE 4410–13–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: Final rule. 

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. 

The Attorney General appointed Sheila 

L. Birnbaum to serve as Special Master 

and administer the Fund. On June 21, 

2011, the Special Master issued a Notice 

of Proposed Rulemaking that proposed 

to amend the regulations implementing 

the Fund to reflect the changes made by 

the Zadroga Act. After reviewing the 

extensive public comments and meeting 

with numerous victims, victims’ 

families, and other groups, the Special 

Master is issuing this final rule and 

associated commentary, which make 

certain clarifications and changes that 

are designed to address issues that have 

been raised. Specifically, the final rule 

clarifies, supplements, and amends the 

proposed rule by, among other things: 

Expanding the geographic zone 

recognized as a ‘‘9/11 crash site’’; 

providing greater consistency with the 

World Trade Center Health Program by 

adding additional forms of proof that 

may be used to establish eligibility; and 

clarifying the types of fees and charges 

that would come within the caps on 

amounts that a claimant’s representative 

may charge in connection with a claim 

made to the Fund. 

DATES: This final rule takes effect on 

October 3, 2011. 

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:

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 


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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 did not appropriate 

administrative funds for the Fund to 

begin taking and processing claims. On 

April 15, 2011, President Obama signed 

into law Public Law 112–10, the 

continuing budget resolution for 2011, 

which permits the Fund to draw on the 

money originally allocated in the 

Zadroga Act in order to pay for its 

administrative expenses, beginning on 

October 1, 2011. 

The Attorney General appointed 

Sheila L. Birnbaum to serve as Special 

Master and to administer the Fund. On 

June 21, 2011, the Special Master issued 

the Notice of Proposed Rulemaking, 

which provided for a 45-day public 

comment period. 

The Department received 95 

comments since the publication of the 

proposed rules. The Special Master’s 

office has reviewed each of these 

comments. In addition, the Special 

Master has participated in town hall 

meetings with several hundred victims, 

victims’ advocates, and others. The 

Special Master has considered all 

comments in promulgating the final 

rules. Significant comments received in 

response to the proposed rules and any 

significant changes are discussed below. 

Significant Comments or Changes 

I. Eligibility 

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. The Department 

received many comments regarding the 

interpretation of these provisions in the 

proposed rule. 

(a) ‘‘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. Title II of the Zadroga Act defines 

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

crash sites themselves, routes of debris 

removal, 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 Centre 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 Centre 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 

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

could also include other areas. 

The proposed rule suggested 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). Those 

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. 

Several commenters stated that the 

proposed boundaries were too narrow. 

Some commenters noted that debris 

removal barges were located north of 

Reade Street. With respect to these 

comments, areas related to debris 

removal barges will be covered. The 

definition of ‘‘9/11 crash site’’ in the 

Zadroga Act and proposed and final 

rules includes ‘‘routes of debris 

removal, such as barges and Fresh 

Kills.’’ Another commenter urged that 

survivors who were present at the 

Shanksville, Pennsylvania, or Pentagon 

sites should be covered. The Zadroga 

Act and proposed and final rules cover 

those who were present at, among other 

things, the ‘‘Pentagon site, and 

Shanksville, Pennsylvania site.’’ As a 

result, both the areas in which the 

barges were located and the Pentagon 

and Shanksville sites will be covered. 

Some suggested that the Fund’s 

geographic definition of ‘‘9/11 crash 

site’’ should be coextensive with the 

geographic boundaries identified in 

Title I of the Zadroga Act, for the WTC 

Health Program. Such boundaries would 

ensure complete consistency in 

geographic eligibility under the two 

programs. While that consistency has 

value, Title II of the Zadroga Act 

requires the Special Master to make an 

independent determination based on the 

area in which there was a demonstrable 

risk of harm. Accordingly, the Special 

Master must review evidence of that 

risk. That evidence is discussed further 

below. 

Some commenters indicated that dust 

from the explosions traveled north of 

Reade Street, as well as into parts of 

Brooklyn, thereby creating a heightened 

risk of harm in those areas, too. Some 

of these comments indicated that dust 

was visibly present north of Reade 

Street. A few commenters noted further 

that even in areas in which dust was not 

visibly present, harmful microscopic 

dust particles may have traveled farther 

north. 

A review of the comments and of 

available scientific evidence suggests 

that the risk of physical harm differed 

depending on the level of an 

individual’s exposure. Based on the 

comments that were submitted, as well 

as further examination of the available 

evidence, the Special Master has 

determined that individuals in the area 


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of Manhattan south of Canal Street 

suffered an increased risk of harm as a 

result of the crashes, depending on the 

duration, timing and amount of 

exposure. In addition to the dust that 

was present most heavily in the area 

south of Reade Street, there is also 

evidence suggesting that prolonged 

exposure to dust between Reade Street 

and Canal Street created a demonstrable 

risk of physical harm. There are also 

substantial numbers of patients who live 

between Reade Street and Canal Street 

that are receiving treatment in the 

World Trade Center Environmental 

Health Center program. Based on this 

information, the final rule expands the 

zone of geographic eligibility to include 

the area south of Canal Street. 

While there is evidence that the 

smoke plume from the site traveled 

beyond Manhattan south of Canal 

Street, the concentrations of 

contaminants in the smoke cloud were 

most intense within and very near 

Ground Zero. By the time the smoke 

cloud had reached other areas, such as 

Brooklyn, the particulate concentrations 

were significantly diluted. Thus while 

the final rule gives the Special Master 

discretion to identify, based on 

additional evidence, additional areas in 

which there was a demonstrable risk of 

harm, the initial zone of coverage will 

include the World Trade Center, 

Pentagon, and Shanksville sites; the 

buildings that were destroyed; the area 

south of Canal St. in lower Manhattan; 

and the routes of debris removal. It is 

important to bear in mind, however, 

that eligibility for the Fund requires not 

only that a claimant have been present 

at one of these 9/11 crash sites, but also 

that the claimant satisfy the Fund’s 

other eligibility criteria, including that 

the claimant’s injury was ‘‘a result of’’ 

the aircraft crashes or debris removal. 

Depending on the condition, this 

criterion likely will be satisfied only by 

individuals with significant exposure, 

and thus individuals who have transient 

or limited exposure are unlikely to meet 

this requirement. 

Finally, a few comments expressed 

uncertainty regarding whether claimants 

must live in the New York area to be 

eligible for the Fund. The Special 

Master does not believe that these 

questions require any changes to the 

proposed rule. Although the proposed 

and final rules address the location of a 

claimant in the immediate aftermath of 

the attacks, there is no requirement 

regarding a claimant’s current residence 

or location. Therefore, eligibility is not 

limited to those who currently live in 

the New York area. 

(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. 

Although Title II of the Zadroga Act 

does not provide additional specificity 

about the harms that are to be covered 

by the Fund, Title I of the Zadroga Act, 

which establishes the WTC Health 

Program, contains a list of illnesses and 

health conditions for which exposure to 

airborne 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, or contributing 

to an 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.’’ 

The proposed rule required the Fund 

to maintain and publish a list of 

presumptively covered conditions that 

resulted from the air crashes or debris 

removal. This list would consist of the 

physical injuries and conditions that are 

found, under the WTC Health Program, 

to be WTC-related health conditions. 

The proposed rule also required the 

Special Master to 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 WTCrelated. 

General approach. Many individuals 

and organizations commented on the 

general approach that the Fund should 

take on these issues. One set of 

comments noted that in order to ensure 

that the available funds go to those most 

deserving, it will be important for the 

Fund to ensure that the compensated 

injuries are, in fact, caused as a result 

of the crashes and debris removal. Other 

comments rightly noted the sacrifices 

made by the first responders and other 

claimants, and urged that the Fund 

reciprocate the generosity that they 

showed. Through the processes laid out 

in Zadroga Act and the final rule, the 

Fund will seek to ensure that eligible 

claimants are compensated in the 

manner Congress provided, and that 

payments to the deserving are not 

diluted by payments made to claimants 

who do not actually meet the criteria 

laid out in the law. 

Cancer and other conditions. The 

most frequently discussed topic in these 

comments concerned eligibility for 

individuals with cancer. Most of these 

comments argued that cancer should be 

considered a WTC-related condition. 

Several commenters stated that many 

first responders who worked or 

volunteered at Ground Zero have 

developed cancer, and that it is likely 

that these conditions resulted from the 

air crashes or debris removal. To a lesser 

extent, other illnesses were also 

suggested for coverage. 

After considering all of the comments 

and the available evidence, the Special 

Master will continue to rely on the 

medical judgment made by the WTC 

Health Program. While the Fund will 

continue to evaluate new evidence as it 

becomes available, and will add to its 

list of presumptively covered conditions 

any physical injury condition that the 

WTC Health Program recognizes as 

WTC-related, the final rule will not add 

any additional conditions at this time. 

Title I of the Zadroga Act contains a list 

of illnesses and health conditions that 

experienced medical professionals have 

determined could be found on an 

individual basis to be substantially 

likely to have been aggravated, caused, 

or contributed to by exposure to 

airborne toxins, other hazards and any 

other adverse conditions resulting from 

the September 11, 2001 terrorists 

attacks. This list does not include any 

form of cancer. In addition, the Zadroga 

Act requires the Administrator of the 

WTC Health Program to consider other 

conditions for coverage over time, and 

specifically to ‘‘periodically conduct a 

review of all available scientific and 

medical evidence, including findings 

and recommendations of Clinical 

Centers of Excellence, published in 

peer-reviewed journals to determine if, 

based on such evidence, cancer or a 

certain type of cancer should be added 

to the applicable list of WTC-related 

health conditions.’’ 42 U.S.C. sec. 

300mm–22(a)(5)(A). 

The first periodic review by the WTC 

Health Program Administrator found 

insufficient scientific and medical 

evidence for adding cancer to the list of 

covered conditions. See First Periodic 

Review of Scientific and Medical 

Evidence Related to Cancer for the 

World Trade Center Health Program; as 

prepared by the Department of Health 

and Human Services, Centers for 


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Disease Control and Prevention, 

National Institute for Occupational 

Safety and Health, available at http:// 

www.cdc.gov/niosh/topics/wtc/prc/prc1.html. That review was based on peerreviewed scientific literature, findings 

and recommendations solicited from 

clinics and other stakeholders who 

monitor the health of WTC first 

responders, and information solicited 

from the public through notices issued 

in March 2011. The WTC Health 

Program’s second review will consider 

additional evidence that has become 

available since the initial review, and 

determine whether it provides a 

sufficient basis to identify particular 

types of cancer as WTC-related 

conditions. If the WTC Health Program 

determines that certain forms of cancer 

should be added to the list of WTCrelated conditions, the final rule 

requires the Special Master to add such 

conditions to the list of presumptively 

covered conditions for the Fund. 

PTSD and mental health conditions. 

Several comments argued that the Fund 

should include individuals with PostTraumatic Stress Disorder (PTSD) or 

other mental health conditions. The 

Special Master is unable to change the 

final rule to accept these comments. As 

in the Fund’s first iteration, the statute 

creating the Fund limits eligible injuries 

to those consisting of ‘‘physical harm.’’ 

While individuals with mental or 

emotional injuries may be eligible for 

treatment by the WTC Health Program, 

the statutory language does not permit 

the Fund to cover individuals with only 

mental and emotional injuries. 

Extraordinary circumstances. Finally, 

the Special Master notes that the final 

regulations do not make the list of 

presumptively covered conditions the 

only conditions for which a claimant 

may seek coverage from the Fund. 

Where the claimant satisfies other 

eligibility criteria, including presence at 

a 9/11 crash site, and establishes 

extraordinary circumstances that were 

not adequately taken into account in the 

list of presumptively covered 

conditions, the proposed rule 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. 

Though one commenter suggested that 

the ‘‘extraordinary circumstances’’ test 

is too high a bar, as a result of the 

Fund’s reliance on the WTC Health 

Program’s process for making decisions 

based on the best available science, it is 

anticipated that it will be the unusual 

case in which a condition not on the list 

of presumptively covered conditions 

would be covered. Any lower threshold 

for that determination would invite 

much larger volumes of claims that 

would require extensive, expensive 

reviews, sapping administrative costs 

out of the funds available to pay other 

victims, but would be highly unlikely to 

result in payable claims. Given those 

trade-offs, the final rule maintains the 

‘‘extraordinary circumstances’’ 

standard. 

(c) Immediate Aftermath 

One comment suggested that, because 

many workers continued their efforts 

after May 30, 2002, the period defined 

as the ‘‘immediate aftermath’’ should be 

defined to match the eligibility 

requirements for the WTC Health 

Program, and that individuals who 

suffered harms after May 30, 2002, 

should be eligible if they can meet other 

eligibility requirements. Because the 

Zadroga Act defines the ‘‘immediate 

aftermath’’ to end at May 30, 2002, the 

Fund has no discretion to extend that 

deadline. Another commenter suggested 

that regulations make clear that 

individuals whose work spanned the 

period before and after May 30, 2002 are 

eligible to file claims and that any injury 

sustained by such an individual that is 

found to have occurred (either in whole 

or in part) from work at the site after 

May 30, 2002, shall be deemed to 

‘‘relate back’’ to the individual’s work at 

the WTC Site prior to May 30, 2002. The 

Special Master does not believe that this 

comment requires a change to the rule. 

The Zadroga Act requires that an 

individual have been present prior to 

May 30, 2002 in order to be eligible; an 

individual’s eligibility will not be 

affected by whether he or she continued 

to be present after that date. Once an 

individual is deemed to have been 

eligible based on presence during the 

relevant time period, it will not be 

necessary for the Fund to determine the 

precise date on which the condition was 

deemed to have been caused. 

(d) Forms of Proof 

Several comments also sought to 

ensure that, to the greatest extent 

possible, the information required to 

determine eligibility in the Fund are 

consistent with the information required 

for participation in the WTC Health 

Program. Section 104.22(b)(3)(ii) has 

been modified to include certain forms 

of proof that will be considered in the 

WTC Health Program. The forms of 

proof listed there are not exhaustive, 

and the Fund will consider other 

appropriate forms of proof. 

II. Timing and Effect of Filing Claims 

Several comments focused on the 

times by which claimants must file 

claims, and the consequences of those 

filings on any September 11th-related 

civil litigation. 

Timing. Commenters expressed 

concerns regarding the two-year statute 

of limitations on filing claims. One 

commenter indicated that if a new 

condition is added as a presumptively 

covered condition in the Fund’s third 

year, claimants who had that condition 

but had not applied in the first two 

years should not be barred from filing a 

claim. The Fund agrees that the Zadroga 

Act’s two-year statute of limitations 

does not bar that claim, and that 

individuals have two years from the 

time that they became eligible to file a 

claim. Sections 104.62(a)(1) and (a)(2) of 

the final rule make clear that the twoyear statute of limitations on a claim 

does not begin to run before an 

individual is eligible to file the claim. 

One commenter also noted that there 

may be instances in which the two-year 

statute of limitations extends past the 

Fund’s five-year limitation on accepting 

claims. The Zadroga Act provides that 

notwithstanding the two-year statute of 

limitations, claims may not be filed after 

the date that is five years after the 

regulations become final. The Special 

Master has no discretion to change the 

final rule in this respect. 

Relationship to litigation. There were 

a variety of concerns expressed 

regarding the requirement that 

claimants in pending WTC-related 

litigation withdraw from their litigation 

prior to submitting a claim to the Fund. 

One comment contended that the 

requirement should be eliminated 

entirely, because it puts claimants who 

already settled their actions on different 

footing from those who have not already 

settled their actions, will encourage 

litigants who might have been 

successful in their litigation to 

withdraw from it and apply instead to 

the Fund, and will reduce the funds 

available to pay claims from the Fund. 

There were also concerns that requiring 

claimants to withdraw from litigation 

within 90 days of the final regulations 

would force them to give up their civil 

actions without knowing whether they 

would be eligible for payment under the 

Fund; the commenter proposed that the 

Fund require withdrawal of the civil 

action only after the Fund has advised 

the claimant whether he or she would 

be eligible for payment. With respect to 

both issues, the requirement to 

withdraw from pending WTC-related 

litigation within 90 days of the 

regulations becoming final is a statutory 

provision, which the Special Master has 

no authority to disregard. Nor may the 

Fund accept the commenter’s suggestion 

to determine a potential claimant’s 

eligibility prior to requiring the claimant 


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to withdraw a pending suit. The statute 

requires such individuals to withdraw 

from pending litigation within 90 days 

of the promulgation of these regulations; 

otherwise the individual ‘‘may not 

submit a claim.’’ Therefore, the Fund 

cannot accept applications that do not 

satisfy this requirement. 

One comment raised the specific 

concern that the filing of a claim with 

the Fund should not preclude a 

claimant from later filing a civil action 

regarding harms that a claimant later 

suffers that are unrelated to the harm for 

which the claim was submitted. This 

comment suggests that the release that 

claimants were required to sign in the 

Fund’s first iteration was overly broad. 

By law, when a claimant submits a 

claim, ‘‘the claimant waives the right to 

file a civil action (or to be a party to an 

action) in any Federal or State court for 

damages sustained as a result of the 

terrorist-related aircraft crashes of 

September 11, 2001, or for damages 

arising from or related to debris 

removal.’’ Section 104.61 of the rule 

requires the Special Master to inform 

potential claimants of this statutory 

requirement. While the final rule 

permits claimants to amend their claims 

to add new conditions in certain 

circumstances, the Fund does not have 

the authority to change the terms or 

consequences of the statute. 

III. Valuation of Claims 

A number of commenters suggested 

changes in the manner in which the 

Fund would determine the appropriate 

value of compensable claims. 

Methodology for injury claims. One 

commenter was troubled that the 

Special Master, in determining 

economic loss for claimants who 

suffered physical harm, may rely upon 

the methodology created for 

determination of economic loss for 

claimants who died. The commenter 

noted that in calculating economic loss 

for death claims, a deduction is taken 

for consumption that would not be 

appropriate in calculating losses for 

injury claims. The Special Master agrees 

with the commenter that it would not be 

appropriate to deduct for consumption 

in personal injury claims, and notes that 

the methodology applied in the first 

iteration of the Fund in fact made an 

adjustment to eliminate consumption 

deductions when computing economic 

loss for injury claims. Accordingly, no 

change in the rule is necessary. 

Future losses. Several comments 

focused on the manner in which the 

Fund would calculate future losses. 

Some noted that the accuracy of 

calculations of future economic losses 

may depend on the continuation of the 

WTC Health Program. These comments 

note that the WTC Health Program is set 

to expire in 2016, and that projections 

of future medical expenses should be 

lower if treatment provided under that 

program is extended. In order to ensure 

that projections of future economic 

losses are as accurate as possible, the 

final rule modifies Section 104.47 to 

clarify that in calculating offsets from 

the World Trade Center Health Program, 

the Fund will assume continuing 

operations of the Program to the extent 

that the Program is authorized to 

continue operations at the time of the 

payment to the claimant. If the Program 

is extended, shortened, or modified 

before a claimant’s subsequent 

payments, such subsequent payments 

may be adjusted to reflect the Program’s 

current status. 

Other comments focused on the 

valuation of replacement services and 

noted that replacement services losses 

can be substantial and should be 

considered. Replacement services loss is 

included in the definition of economic 

loss in the statute. Under the Fund’s 

first iteration, the computation of 

economic loss included replacement 

services loss where such loss was 

demonstrated with appropriate proof. In 

addition, under the proposed rule and 

the rule that governed the Fund’s first 

iteration, Sections 104.43(c) and 

104.45(c) specifically provide that 

replacement services losses may be 

compensated for individuals who did 

not have any prior earned income or 

who worked only part-time outside the 

home. That provision does not exclude 

other individuals for whom replacement 

services losses may also be appropriate. 

As in the Fund’s first iteration, losses 

from replacement services may be 

variable, and claimants must present 

individualized data to support their 

inclusion in an award. 

Finally, one comment suggested that 

the valuation approach proposed in 

Section 104.43(a), regarding the 

appropriate calculation for future losses 

for victims who are minors, should rely 

not on the average income of all wage 

earners, but on likely educational 

attainment based on the child’s 

demographics. In the Fund’s first 

iteration, minor children’s earning 

capacity was based on average income 

of all wage earners. Changing the 

standard now would result in different 

projected earnings between identical 

claimants in the two Funds, based 

solely on when the claim was filed. 

While slight modifications to the 

previous valuation models may be 

appropriate where the facts underlying 

the assumptions have changed, adopting 

a new approach to valuation now would 

undermine the consistency that is 

important to treating all claimants 

equally. Further, given the difficulty of 

projecting a child’s future earning 

capacity, regardless of the model, a 

heavily fact-intensive inquiry for such 

projections may add significant 

administrative costs with little 

additional benefit in accuracy. 

Valuation of mental injuries. Some 

commenters noted that it is often 

difficult to distinguish between the 

harms caused by physical injuries and 

those caused by mental injuries, with 

one commenter suggesting that awards 

for non-economic losses should take 

into account the losses caused by PTSD. 

Under the Zadroga Act, non-economic 

losses consist of ‘‘losses for physical and 

emotional pain, suffering, 

inconvenience, physical impairment, 

mental anguish, disfigurement, loss of 

enjoyment of life, loss of society and 

companionship, loss of consortium 

(other than loss of domestic service), 

hedonic damages, injury to reputation, 

and all other nonpecuniary losses of any 

kind or nature.’’ To the extent that an 

individual is eligible for compensation 

by the Fund, an award for noneconomic losses will reflect these 

harms, but no change is required to the 

final rule. 

Offsets. One comment addressed the 

manner in which pensions are used as 

offsets, and urged that the regulations 

distinguish between retirement 

pensions that are earned through years 

of service and disability pensions that 

are based on an injury caused by 

September 11th. Section 104.47(a) 

provides that pension funds will be 

used to offset payments only to the 

extent they are related to the crashes or 

debris removal. Standard retirement 

pensions will not be used as offsets. 

Reliance on determinations by other 

bodies. Several commenters suggested 

that the Fund should recognize 

determinations of eligibility or disability 

made by other government agencies, 

such as the Department of Veterans 

Affairs and Department of Labor, 

administrative boards, or in the 

September 11th litigation. One 

commenter noted that relying on such 

determinations would save 

administrative costs. Under Section 

104.22(c)(2), a claimant may submit any 

such information for consideration by 

the Fund. As in the first iteration, the 

Fund will consider such information in 

the context of the full claim. 

IV. Funding and Payment of Claims 

A number of comments focused on 

the amounts available for payment and 

the manner in which the regulations 

proposed to distribute the available 


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Federal Register / Vol. 76, No. 169 / Wednesday, August 31, 2011 / Rules and Regulations 54117 

funds. For example, several comments 

addressed the provisions in the Zadroga 

Act regarding the $2.775 billion cap on 

total awards that can be paid by the 

Fund, as well as the requirement that 

only $875 million may be paid during 

the first five years of the Fund. One 

commenter suggested simply that 

additional funding will be needed. 

Another argued that claimants should 

not have to wait five years to receive full 

payment. Because Congress explicitly 

provided these requirements in the 

statute creating the Fund, these 

requirements cannot be changed by the 

Special Master. 

Another comment focused on the 

schedule of payments, and suggested 

that instead of evenly dividing the funds 

available to make the initial award 

payments, the Fund should take into 

account the extent of a claimant’s harm 

and the immediacy and severity of the 

claimant’s need. The Special Master has 

given this suggestion considerable 

thought, and recognizes that— 

particularly given that only one-third of 

the overall funding is available during 

the Fund’s first five years—initial 

payments may make only a small 

difference in a claimant’s overall 

circumstance. Because initial payments 

will be pro-rated, those who have 

suffered or will suffer greater harms will 

receive larger payments than those with 

lesser harms. To that extent, the initial 

payments will take into account both 

the extent of the claimant’s harm and 

the immediacy of the claimant’s need. 

However, giving greater awards based 

on the immediacy of a particular 

claimant’s needs raises numerous 

practical challenges, such as the nature 

of the urgent needs that would justify a 

greater payment: The Zadroga Act 

empowered the Special Master to 

determine how much a claimant is 

entitled to receive for economic losses, 

but the Special Master is not in a 

position to compare the urgency of each 

claimant’s needs and resources. 

While the final rule thus does not 

contemplate advance benefits for urgent 

needs, it does incorporate a change that 

may ease some of this burden. One 

comment noted that over the Fund’s 

first five years, it may become apparent 

that it would be possible to provide 

claimants with more than one payment 

without expending all the available 

funds. The proposed rule contemplated 

just two rounds of payments to each 

claimant: An initial payment within the 

first five years, followed by the 

remaining payment in the sixth year. If 

it becomes apparent that sufficient 

funding is available for additional 

payments before the sixth year, the final 

rule gives the Special Master discretion 

to make such additional payment. 

Finally, some commenters asked that 

the Fund inform claimants of the Fund’s 

full valuation of their award at the time 

the award decision is made, even 

though the first payment will only be a 

pro-rated portion of that total. Under 

Section 104.33(g), the Special Master 

will notify the claimant in writing of the 

final amount of the award. The Special 

Master intends for this notice to inform 

the claimant of the Fund’s full award 

determination and the pro-rated amount 

of the initial payment. In addition, 

claimants will be informed that they 

will receive a subsequent payment 

during the Fund’s sixth year, but that 

the amount of this payment is not 

certain, and may be reduced pursuant to 

Section § 104.51 (requiring the Special 

Master to ratably reduce the amount of 

compensation in the event that the total 

amount of all claims exceeds the 

amount available under law) and 

Section 104.47 (authorizing the Special 

Master to recalculate offsets from the 

World Trade Center Health Program and 

adjust subsequent payments 

accordingly). 

V. Fees and Expenses 

A number of comments sought clarity 

or modifications in the provisions of the 

proposed rule regarding the amounts 

that a representative of a claimant may 

charge in connection with a claim made 

to the Fund. 

10% cap on fees. Some comments 

sought clarity on the provisions 

implementing the Zadroga Act’s 10% 

cap on fees that representatives may 

charge a client in connection with a 

claim to the Fund. Specifically, one set 

of these comments expressed concern 

that the regulations did not provide 

sufficient guidance on the types of fees 

and charges that would come within the 

cap on amounts that a claimant’s 

representative may charge in connection 

with a claim made to the Fund. While 

it is recognized that there may be cases 

in which an attorney provides some 

unusual service, and there is no 

indication in the statute that Congress 

intended to disadvantage claimants by 

discouraging those attorneys from 

providing beneficial services, the 

Zadroga Act does reflect an intention to 

limit the amounts that may be charged 

for routine legal services. Accordingly, 

the final rule clarifies that the caps on 

amounts that an attorney may charge 

include charges for expenses routinely 

incurred in the course of providing legal 

services. Thus, for example, absent 

special circumstances, routine office 

photocopying costs, as well as fees 

charged by expert consultants or 

witnesses, that are routinely incurred in 

the course of providing legal services, 

count against the caps on fees that 

attorneys may charge. By the same 

token, where an attorney provides a 

non-routine service, which depending 

on the circumstances may include 

acquiring a client’s files from a third 

party (rather than requiring the claimant 

to collect those files), the attorney may 

be able to pass along those costs on top 

of the routine fees. Thus, the final rule 

notes that charges for services routinely 

incurred in the course of providing legal 

services fall within the cap on fees, and 

provides that attorneys or other 

representatives may seek the Fund’s 

approval to charge for non-routine 

services in particular cases. 

Records costs. Along similar lines, 

there were a number of comments 

regarding the costs of obtaining 

voluminous medical files that are often 

in the possession of a claimant’s 

medical provider or previous counsel. 

Some comments suggested that the 

Fund establish a retrieval service or 

limit the fees that custodians of those 

records may charge claimants or their 

new attorneys for providing documents 

that a claimant must provide to the 

Fund. Others noted that the custodian’s 

costs of producing such records can be 

significant, too, and that current 

custodians should be permitted to pass 

on reasonable costs. 

At the outset, it is worth noting that 

the Fund intends to work with willing 

custodians who possess large volumes 

of relevant records to determine the 

extent to which it is possible to transfer 

appropriate information to the Fund 

electronically. Providing the electronic 

transfer of information where 

appropriate and cost-effective will 

reduce burdens and costs for claimants. 

Further, while the Zadroga Act does 

not grant the Fund the authority to 

establish caps on costs that a third-party 

custodian not before the Fund may 

charge for providing records, it does 

empower the Special Master to ensure 

that counsel who represent claimants 

before the Fund are charging 

appropriate rates. The Special Master 

recognizes the role that able counsel 

will serve in the claims process, and 

notes that in the Fund’s first iteration, 

there was an outpouring of pro bono 

assistance that was consistent with the 

spirit of the legislation and the Bar’s 

tradition of public service. While the 

Zadroga Act does not prevent a 

claimant’s previous counsel from 

passing along certain minimal 

administrative costs associated with the 

transfer of files, attorneys have 

professional obligations regarding a 

client’s access to his or her records. The 


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54118 Federal Register / Vol. 76, No. 169 / Wednesday, August 31, 2011 / Rules and Regulations 

Zadroga Act empowers the Special 

Master to reduce the fees that an 

attorney may charge claimants, and 

attorneys who charge unreasonable 

costs for the services provided should 

expect that, in appropriate cases, the 

Fund will exercise its statutory 

authority to limit the fees charged. 

Effects of fees charged in a previous 

settlement. One comment focused on 

the question of whether certain 

attorneys may charge fees in connection 

with a claim filed with the Fund. 

Specifically, the commenter expressed 

concern regarding Section 104.81 of the 

proposed rule, which implements the 

Zadroga Act’s statutory cap on fees that 

an attorney who charged a fee in 

connection with a prior September 11threlated settlement may charge in 

connection with a claim submitted to 

the Fund. Under the Zadroga Act, such 

an attorney may charge a fee in 

connection with the claim to the Fund 

only if the legal fee charged in 

connection with the settlement ‘‘is less 

than 10 percent of the aggregate amount 

of compensation awarded to such 

individual through such settlement’’; in 

such instances, the attorney may receive 

only such funds as are necessary to 

reach a total payment that equals 10 

percent of the aggregate compensation 

from the settlement. The commenter 

expressed concern that Section 104.81 

of the proposed regulation interprets 

this provision in a manner that is 

inequitable to attorneys who previously 

represented clients in a settlement, and 

argued that the cap on fees should be 

based on the aggregate of the civil 

settlement and recoveries under the 

Fund. The statute refers to ‘‘the 

aggregate amount of compensation 

awarded to such individual through 

such settlement’’ (emphasis added), and 

therefore does not permit such a 

reading. 

Along similar lines, the commenter 

suggested that Section 104.81(b)(1) of 

the proposed rule be clarified to give 

guidance on whether an attorney who 

previously charged a fee in connection 

with a previous settlement may charge 

a client’s new counsel a ‘‘consultation 

or participation fee’’ in connection with 

the client’s claim to the Fund. The 

commenter suggests that such 

consultation or participation fee would 

allow the former attorney to provide 

time and resources to assist the new 

counsel. The statutory provision in 

question provides that ‘‘the 

representative of the individual may not 

charge any amount for compensation for 

services rendered in connection with a 

claim filed under this title.’’ The 

proposed regulatory provision on which 

the commenter sought clarification had 

stated that such attorney may not charge 

‘‘that individual’’ any such amount; the 

commenter suggests that because a 

consultation fee would not increase the 

overall charge to the claimant herself, 

but would be charged only to the 

claimant’s new counsel, a consultation 

or participation fee achieves the 

statutory objectives. The Special Master 

disagrees, and the final rule clarifies 

that provision. Because Congress 

dictated that the representative ‘‘may 

not charge any amount for 

compensation for services rendered in 

connection with a claim,’’ it would 

defeat Congress’s intention were that 

representative permitted to charge an 

amount for services rendered. 

Accordingly, Section 104.81(b)(1) is 

clarified in the final rule to track, with 

one exception, the statutory language. 

Because it does not appear that Congress 

intended to forbid such a representative 

from charging for services rendered in 

connection with claims filed by other 

clients, whom the representative did not 

charge any amount in a previous 

settlement, Section 104.81(b)(1) is 

clarified to provide that ‘‘the 

representative who charged such legal 

fee may not charge any amount for 

compensation for services rendered in 

connection with a claim filed by or on 

behalf of that individual under this 

title’’ (emphasis added). 

VI. Other Comments 

The Fund received a number of 

additional comments that, while not 

requiring changes to the regulations, 

raise important issues for the 

administration of the Fund. As the 

Special Master has indicated previously, 

her goal is to design a program that is 

fair, transparent, and easy to navigate. 

The many suggestions along these lines 

will be extremely valuable as the Fund 

gets up and running. 

Comments stressed the importance of 

making the claims process as accessible 

to the public as possible, a goal that the 

Special Master shares. Commenters 

suggested several ways that the Fund 

can make this goal a reality. They 

stressed the value of transparency, so 

that claimants can make informed 

decisions and understand the reasons 

for how their claims are handled. The 

Special Master agrees that making 

public as much information as possible 

concerning the Fund’s valuation 

methodologies will assist claimants in 

deciding whether to file with the Fund 

or pursue other forms of relief. The 

Fund will provide information outside 

the context of formal regulations, such 

as through Frequently Asked Questions, 

periodic reports, explanations of 

decisions to individual claimants, and 

other materials on the Fund’s Web site, 

in order to give claimants greater 

confidence in the Fund’s decisionmaking processes. 

Making the Fund accessible to the 

public also requires that the process be 

as simple and non-bureaucratic as 

possible. Although claimants should be 

able to use an attorney if they so choose, 

the process should be simple enough 

that claimants can participate without 

the need for one—and the Special 

Master should encourage attorneys to 

provide pro bono assistance. Given the 

diversity of the eligible population, 

commenters also urged the Fund to 

translate key forms and other materials 

into languages other than English. The 

Special Master agrees with these 

commenters and will take steps to make 

the Fund more accessible in these ways. 

In addition to creating a process that 

is transparent, commenters also urged 

the Special Master to recognize that 

between private litigation and various 

governmental programs operating in this 

space, a lack of consistency can lead to 

confusion, frustration, and increased 

burdens on claimants who have already 

suffered extensively. Commenters noted 

that this can play out in a variety of 

contexts: Different sets of forms and 

proof requirements; different types of 

harms and valuation methodologies; 

and inconsistent determinations 

between government programs 

ostensibly aimed at the same 

populations. While the Fund has certain 

unique statutory purposes, the Special 

Master recognizes that unnecessary 

inconsistency and redundancy are in no 

one’s interests. So while some 

differences are inevitable, coordination 

with other government programs will be 

an important consideration in the 

Fund’s operations. Importantly, as part 

of the Fund’s efforts to minimize 

burdens on claimants, it will work with 

medical providers and others in 

possession of claimants’ information to 

provide for appropriate transfers of 

electronic data where possible. 

The Special Master appreciates all of 

these comments, as well as the many 

comments expressing appreciation or 

good wishes for the Fund’s operations. 

While the suggestions here do not 

require changes in the regulations, they 

suggest a number of ways that the Fund 

can better achieve its mission. They will 

all be taken into account as we seek to 

build a program that serves this 

community as the Zadroga Act 

intended. 


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Federal Register / Vol. 76, No. 169 / Wednesday, August 31, 2011 / Rules and Regulations 54119 

Regulatory Certifications 

Paperwork Reduction Act of 1995 

This rule implements 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 establish procedures to 

screen out ineligible or inappropriate 

claims while keeping administrative 

expenses as low as possible consistent 

with the goal of ensuring that funds are 

not diverted to processing ineligible 

claims in order to maximize the amount 

of funds available for claimants. Finally, 

based on past practice with the 

operation of the original Fund and the 

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 

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. 


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54120 Federal Register / Vol. 76, No. 169 / Wednesday, August 31, 2011 / Rules and Regulations 

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 amended by revising part 

104 to read as follows: 

PART 104—SEPTEMBER 11TH VICTIM 

COMPENSATION FUND 

Subpart A—General; Eligibility 

Sec. 

104.1 Purpose. 

104.2 Eligibility definitions and 

requirements. 

104.3 Other definitions. 

104.4 Personal Representative. 

104.5 Foreign claims. 

104.6 Amendments to this part. 

Subpart B—Filing for Compensation 

104.21 Presumptively covered conditions. 

104.22 Filing for compensation. 

Subpart C—Claim Intake, Assistance, and 

Review Procedures 

104.31 Procedure for claims evaluation. 

104.32 Eligibility review. 

104.33 Hearing. 

104.34 Publication of awards. 

104.35 Claims deemed abandoned by 

claimants. 

Subpart D—Amount of Compensation for 

Eligible Claimants 

104.41 Amount of compensation. 

104.42 Applicable state law. 

104.43 Determination of presumed 

economic loss for decedents. 

104.44 Determination of presumed 

noneconomic losses for 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 through 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 

(3) The area in Manhattan south of the 

line that runs along Canal Street from 

the Hudson River to the intersection of 

Canal Street and East Broadway, north 

on East Broadway to Clinton Street, and 

east on Clinton Street to the East River; 

or 

(4) 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 

(5) 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 


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(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). 

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, which may be a portion of a 

complete claim form, that will require 


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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, such as a 

lease or utility bill, records of 

employment or school attendance, 

contemporaneous medical records, 

contemporaneous records of federal, 

state, city or local government, a pay 

stub, official personnel roster, site 

credentials, an affidavit or declaration of 

the decedent’s or injured claimant’s 

employer, or other sworn statement (or 

unsworn statement complying with 28 

U.S.C. 1746) regarding the presence of 

the victim; 

(iii) Proof of physical harm: 

Certification of a conclusion by the 

WTC Health Program that the claimant 

suffers from a WTC-related health 

condition and is eligible for treatment 

under the program; or 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, or debris removal, 

except for civil actions to recover 

collateral source obligations and civil 

actions against any person who is a 

knowing participant in any conspiracy 

to hijack any aircraft or commit any 

terrorist act. A claim shall be deemed 

submitted for purposes of section 

405(c)(3)(C) of the Act when the claim 

is deemed filed pursuant to § 104.22, 

regardless of whether any time limits 

are stayed or tolled. 

(e) Amendment of claims. A claimant 

who has previously submitted a claim 

may amend such claim to include: 

(1) An injury 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. 


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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 § 104.22(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 

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 


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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 

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 


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Federal Register / Vol. 76, No. 169 / Wednesday, August 31, 2011 / Rules and Regulations 54125 

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 the 

claimant has received or is entitled to 

receive as a result of the terrorist-related 

aircraft crashes of September 11, 2001, 

or debris removal in the immediate 

aftermath, including life insurance, 

pension funds, death benefits programs, 

payments by Federal, State, or local 

governments related to the terroristrelated 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 (to the 

extent such program is authorized, at 

the time of the payment, to continue 

operations), 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 

paragraph (c) of this section, the Special 

Master shall authorize payment of an 

award to a claimant not later than 20 

days after the date on which: 

(1) The claimant accepts the 

presumed award; or 

(2) A final award for the claimant is 

determined after a hearing on appeal. 

(b) Failure to accept or appeal 

presumed award. If a claimant fails to 

accept or appeal the presumed award 

determined for that claimant within 30 

days, the presumed award shall be 

deemed to have been accepted and all 

rights to appeal the award shall have 

been waived. 

(c) 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 October 3, 2011, will 

not exceed $2,775,000,000. 

Furthermore, the total amount of 

Federal funds expended during the 

period from October 3, 2011, through 

October 3, 2016, 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 October 

3, 2011, to October 3, 2016, 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 amount of ratable 

reduction in light of available 

information regarding potential future 

claims and available funds, and may 

make additional payments in light of 

such adjustments. 

(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 October 

3, 2016, but in no event later than 

October 3, 2017, 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 October 3, 2011, 

to October 3, 2016. 

(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 

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. 

(4) At the time at which subsequent 

payments are made, the Special Master 

may review offsets from the World 

Trade Center Health Program that were 

included in the award determination 

and adjust such subsequent payments to 

reflect the Program’s current status. 

(5) During the five years that the Fund 

is accepting claims, the Special Master 

shall report periodically on the total 

amount of all claims under paragraph 

(c)(2) of this section. 

§ 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 


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54126 Federal Register / Vol. 76, No. 169 / Wednesday, August 31, 2011 / Rules and Regulations 

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 January 2, 2012. 

(c) Settled actions. In the case of an 

individual who settled a civil action 

described in Section 405(c)(3)(C) of the 

Act, such individual may not submit a 

claim under this title unless such action 

was commenced after December 22, 

2003, and a release of all claims in such 

action was tendered prior to January 2, 

2011. 

§ 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 October 3, 2011, and ending on 

October 3, 2016, as follows: 

(1) In the case that the individual 

knew (or reasonably should have 

known) before October 3, 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 is eligible to file a 

claim under this Part as of October 3, 

2011, the individual may file a claim 

not later than October 3, 2013. 

(2) In the case that the individual first 

knew (or reasonably should have 

known) on or after October 3, 2011, that 

the individual suffered such a physical 

harm or in the case that the individual 

became eligible to file a claim under this 

Part on or after that date, the individual 

may file a claim not later than the last 

day of the 2-year period beginning on 

either the date that the individual first 

knew (or should have known) that the 

individual both suffered from such 

harm or the date the individual became 

eligible to file a claim under this title, 

whichever is later, but in no event 

beyond October 3, 2016. 

(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, including 

expenses routinely incurred in the 

course of providing legal services, more 

than 10 percent of an award paid under 

this title on such claim. Expenses 

incurred in connection with the claim of 

an individual in this title other than 

those that are routinely incurred in the 

course of providing legal services may 

be charged to a claimant only if they 

have been approved by the Special 

Master. 

(2) Certification. In the case of any 

claim in connection with which 

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 any 

amount for compensation for services 

rendered in connection with a claim 

filed by or on behalf of that individual 

under this title. 

(2) Exception. If the legal fee charged 

in connection with the settlement of a 

civil action described in section 

405(c)(3)(C)(iii) of the Act of an 

individual is less than 10 percent of the 

aggregate amount of compensation 

awarded to such individual through 

such settlement, the representative who 

charged such legal fee to that individual 

may charge an amount for compensation 

for services rendered to the extent that 

such amount charged is not more than— 

(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: August 26, 2011. 

Sheila L. Birnbaum, 

Special Master. 

[FR Doc. 2011–22295 Filed 8–30–11; 8:45 am] 

BILLING CODE 4410–12–P 


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