Sidebilder
PDF
ePub

(e) Subcontractors. The carrier shall ensure that all terms and conditions herein are incorporated in any agreement with a subcontractor that may be utilized by the carrier to perform any or all portions of the agreement.

a

$100.19 Adjustments to agreement es

timate. (a) Adjustments prior to the incurrence of a cost. (1) In accordance with $100.17(d)(2), the carrier shall notify the FBI when any change affecting the level of reimbursement occurs.

(2) Upon such notification, if the adjustment results in an increase in the estimated reimbursement, the FBI will review the submission and determine if (1) Funds are available; (ii) The adjustment is justified and necessary to accomplish the goals of the agreement; and

(iii) It is in the best interest of the government to approve the expenditure.

(3) The FBI will provide the decision as to the acceptability of any increase to the carrier in writing.

(b) Adjustments after the incurrence of a cost. Any cost incurred that exceeds the provision in $ 100.16(e)(2) will be reviewed by the FBI to determine reasonability, allowability, and if it is in the best interest of the government to approve the expenditure for reimbursement.

(c) Reduction for defective cost data. (1) The cost shall be reduced accordingly and the agreement shall be modified to reflect the reduction if any cost estimate negotiated in connection with the CALEA compliance effort, or any cost reimbursable under the effort is increased because:

(i) The carrier or a subcontractor furnished cost data to the government that were not complete, accurate, and current;

(ii) A subcontractor or prospective subcontractor furnished the cost data to the carrier that were not complete, accurate, and current; or

(iii) Any of these parties furnished data of any description that were not accurate.

(2) Any reduction in the negotiated cost under $100.19(c)(1) due to defective data from a prospective subcontractor that was not subsequently awarded the

subcontract shall be limited to the amount by which either the actual subcontract or the actual cost to the carrier, if there was no subcontract, was less than the prospective subcontract cost estimate submitted by the carrier, provided that the actual subcontract cost was not itself affected by defective cost data.

(3) If the FBI determines under $100.19(C)(1) that cost reduction should be made, the carrier shall not raise the following matters as a defense:

(i) The carrier or subcontractor was a sole source supplier or otherwise was in a superior bargaining position and thus the costs of the agreement would not have been modified even if accurate, complete, and current cost data had been submitted;

(ii) The FBI should have known that the cost data at issue were defective even though the carrier or subcontractor took no affirmative action to bring the character of the data to the attention of the FBI;

(iii) The carrier or subcontractor did not submit accurate cost data. Except as prohibited, an offset in an amount determined appropriate by the FBI based upon the facts shall be allowed against the cost reimbursement of an agreement amount reduction if the earrier certifies to the FBI that, to the best of the carrier's knowledge and belief, the carrier is entitled to the offset in the amount requested and the carrier proves that the cost data were available before the date of agreement on the cost of the agreement (or cost of the modification) and that the data were not submitted before such date. An offset shall not be allowed if the understated data were known by the carrier to be understated when the agreement was signed; or the Government proves that the facts demonstrate that the agreement amount would not have increased even if the available data had been submitted before the date of agreement on cost; or

(4) In the event of an overpayment, the carrier shall be liable to and shall pay the United States at that time such overpayment as was made, with simple interest on the amount of such overpayment to be computed from the date(s) of overpayment to the carrier 104.22 Advance benefits.

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 claim

ants.

to the date the Government is repaid by the carrier at the applicable underpayment rate effective for each quarter prescribed by the Secretary of the Treasury under 26 U.S.C. 6621(a)(2). $ 100.20 Confidentiality of trade se

crets/proprietary information. With respect to any information provided to the FBI under this part that is identified as company proprietary information, it shall be treated as privileged and confidential and only shared within the government on a need-toknow basis. It shall not be disclosed outside the government for any reason inclusive of Freedom of Information requests, without the prior written approval of the company. Information provided will be used exclusively for the implementation of CALEA. This restriction does not limit the government's right to use the information provided if obtained from any other source without limitation. $ 100.21 Alternative dispute resolution.

(a) If an impasse arises in negotiations between the FBI and the carrier which precludes the execution of a cooperative agreement, the FBI will consider using mediation with the goal of achieving, in a timely fashion, a consensual resolution of all outstanding issues through facilitated negotiations.

(b) Should the carrier agree to mediation, the costs of that mediation process shall be shared equally by the FBI and the carrier.

(c) Each mediation shall be governed by a separate mediation agreement prepared by the FBI and the carrier.

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 non

economic losses for decedents. 104.45 Determination of presumed economic

loss for claimants who suffered physical

harm. 104.46 Determination of presumed non

economic losses for claimants who suf

fered 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. AUTHORITY: Title IV of Pub. L. 107-42, 115 Stat. 230, 49 U.S.C. 40101 note.

SOURCE: 66 FR 66282, Dec. 21, 2001, unless otherwise noted.

[blocks in formation]

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) to provide compensation to eligible individuals who were physically injured as a result of the terrorist-related aircraft crashes of September 11, 2001, and to the “personal

Subpart B-Filing for Compensation; Application for Advance Benefits

104.21 Filing for compensation.

[blocks in formation]

or

$ 104.2 Eligibility definitions and re

quirements. (a) Eligible claimants. The term eligible claimants means:

(1) Individuals present at the World Trade Center, Pentagon, or Shanksville, Pennsylvania site at the time of or in the immediate aftermath of the crashes and who suffered physical harm, as defined herein, as a direct result of the terrorist-related aircraft crashes;

(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 the World Trade Center, Pentagon, or Shanksville, Pennsylvania 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 of the crashes shall mean, for purposes of all claimants other than rescue workers, the period of time from the crashes until 12 hours after the crashes. With respect to rescue workers who assisted in efforts to search for and recover victims, the immediate aftermath shall include the period from the crashes until 96 hours after the crashes.

(c) Physical harm. (1) The term physical harm shall mean a physical injury to the body that was treated by a medical professional within 24 hours of the injury having been sustained, or within 24 hours of rescue, or within 72 hours of injury or rescue for those victims who were unable to realize immediately the extent of their injuries or for whom treatment by a medical professional was not available on September 11, or within such time period as the Special

Master may determine for rescue personnel who did not or could not obtain treatment by a medical professional within 72 hours; and

(2) In every case not involving death, the physical injury must be verified by contemporaneous medical records created by or at the direction of the medical professional who provided the medical 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) Present at the site. The term present at the site (i.e., the World Trade Center, Pentagon, Shanksville, Pennsylvania site) shall mean physically present at the time of the crashes or in the immediate aftermath:

(1) In the buildings or portions of buildings that were destroyed as a result of the airplane crashes; or

(2) In any 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 (generally, the immediate area in which the impact occurred, fire occurred, portions of buildings fell, or debris fell upon and injured persons). (66 FR 66282, Dec. 21, 2001, as amended at 67 FR 11245, Mar. 13, 2002]

$ 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 2000 (or those persons who legally could have been identified by the victim on his or her federal tax return for the year 2000) unless:

(1) The claimant demonstrates that a minor child of the victim was born or adopted on or after January 1, 2001;

(2) Another person became a dependent in accordance with then-applicable law on or after January 1, 2001; or

(3) The victim was not required by law to file a federal income tax return for the year 2000.

(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 2000 unless:

(1) The victim was married or divorced in accordance with applicable state law on or after January 1, 2001; or

(2) The victim was not required by law to file a federal income tax return for the year 2000.

(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.

(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. (66 FR 66282, Dec. 21, 2001, as amended at 67 FR 11245, Mar. 13, 2002) § 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 his 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 his 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. Any purported Personal Representative must, before filing an Eligibility Form, provide written notice of the claim (in

cluding 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. 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 wor! to settle their dispute.

$104.5 Foreign claims.

periods in this part shall be stayed or In the case of claims brought by or

tolled as described in $104.22(g) of this on behalf of foreign citizens, the Spe

part. cial Master may alter the requirements (b) Eligibility form. The Special Masfor documentation set forth herein to ter shall develop an Eligibility Form the extent such materials are unavail- that will require the claimant to proable to such foreign claimants.

vide information necessary for deter

mining the claimant's eligibility to re$104.6 Amendments to this part.

cover from the Fund. Claimants are entitled to have their (1) The Eligibility Form may require claims processed in accordance with that the claimant certify that he or the provisions of this part that were in she has dismissed any pending lawsuit effect at the time that their claims

seeking damages as a result of the terwere submitted under $104.21(d). All

rorist-related airplane crashes of Sepclaims will be processed in accordance

tember 11, 2001 (except for actions seekwith the current provisions of this

ing collateral source benefits) within 90 Part, unless the claimant has notified

days of the effective date of this part the Special Master that he or she has elected to have the claim resolved

pursuant to section 405(c)(3)(B)(ii) of

the Act and that there is no pending under the regulations that were in effect at the time that the claim was

lawsuit brought by a dependent, submitted under $104.21(d).

spouse, or beneficiary of the victim.

(2) The Special Master may require (67 FR 11245, Mar. 13, 2002]

as part of the notice requirement pur

suant to $104.4(b) that the claimant Subpart B-Filing for Compensa- provide copies of a designated portion tion; Application for Advance

of the Eligibility Form to the immeBenefits

diate family of the decedent (including, $ 104.21 Filing for compensation.

but not limited to, the spouse, former

spouses, children, other dependents, (a) Compensation form; filing.” Except and parents), to the executor, adminisfor applications for Advance Benefits

trator, and beneficiaries of the decepursuant to $104.22, no claim may be

dent's will, and to any other persons considered until the claimant has sub

who may reasonably be expected to asmitted both an “Eligibility Form" and

sert an interest in an award or to have either a "Personal Injury Compensation Form” or a “Death Compensation

a cause of action to recover damages Form.” A claim shall be deemed "filed”

relating to the wrongful death of the for purposes of section 405(b)(3) of the

decedent. Act (providing that the Special Master

(3) The Eligibility Form may require shall issue a determination not later

claimants to provide the following than 120 days after the date on which a proof: claim is filed), and for any time periods (i) Proof of death: Death certificate in this part, when a Claims Evaluator or similar official documentation; determines that both the Eligibility (ii) Proof of presence at site: DocuForm and either a Personal Injury mentation sufficient to establish presCompensation Form or a Death Com

ence at one of the crash sites, which pensation Form are substantially com

may include, without limitation, a plete. Provided, however, that if a

death certificate, records of employclaimant files an Eligibility Form re

ment, contemporaneous medical questing Advance Benefits pursuant to $104.22 of this part without filing either

records, contemporaneous records of a “Personal

federal, state, city or local governInjury Compensation “Death Compensation

ment, an affidavit or declaration of the Form," the claim shall be deemed

decedent's or injured claimant's em"filed" when the Claims Evaluator de

ployer, or other sworn statement (or termines that the Eligibility Form is

unsworn statement complying with 28 substantially complete, but the time

U.S.C. 1746) regarding the presence of period for determination and any time

the victim;

Form"

or

a

« ForrigeFortsett »