COMPENSATION FOR VICTIMS OF CERRO GRANDE FIRE.

SEC. 104. COMPENSATION FOR VICTIMS OF CERRO GRANDE FIRE. (a) In General.— (1) Compensation.—Each injured person shall be entitled to receive from the United States— (A) compensation for injury suffered by the injured person as a result of the Cerro Grande fire; and (B) damages described in subsection (d)(4), as determined by the Director. (2) Office of cerro grande fire claims.— (A) In general.—There is established within the Federal Emergency Management Agency an Office of Cerro Grande Fire Claims. (B) Purpose.—The Office shall receive, process, and pay claims in accordance with this title. (C) Funding.—The Office— (i) shall be funded from funds made available to the Director under this title; (ii) may reimburse other Federal agencies for claims processing support and assistance; (iii) may appoint and fix the compensation of such temporary personnel as may be necessary, without regard to the provisions of title 5, United States Code, governing appointments in competitive service; (iv) upon the request of the Director, the head of any Federal department or agency may detail, on a reimbursable basis, any of the personnel of that department or agency to the Federal Emergency Management Agency to assist it in carrying out its duties under this title; and (v) shall not diminish the ability of the Director to carry out the responsibilities of the Federal Emergency Management Agency under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.), including the timely provision of disaster assistance to a State or territory, an area of which is the subject of a major disaster or emergency declaration made by the President during the period in which the Director carries out this Act. 114 STAT. 585 (3) Option to appoint independent claims manager.—The Director may appoint an Independent Claims Manager to— (A) head the Office; and (B) assume the duties of the Director under this title. (b) Submission of Claims.—Not later than 2 years after the date on which regulations are first promulgated under subsection (f), an injured person may submit to the Director a written claim for one or more injuries suffered by the injured person in accordance with such requirements as the Director determines to be appropriate. (c) Investigation of Claims.— (1) In general.—The Director shall, on behalf of the United States, investigate, consider, ascertain, adjust, determine, grant, deny, or settle any claim for money damages asserted under subsection (b). (2) Applicability of state law.—Except as otherwise provided in this title, the laws of the State of New Mexico shall apply to the calculation of damages under subsection (d)(4). (3) Extent of damages.—Any payment under this title— (A) shall be limited to actual compensatory damages measured by injuries suffered; and (B) shall not include— (i) interest before settlement or payment of a claim; or (ii) punitive damages. (d) Payment of Claims.— (1) Determination and payment of amount.— (A) In general.— (i) Payment.—Not later than 180 days after the date on which a claim is submitted under this title, the Director shall determine and fix the amount, if any, to be paid for the claim. (ii) Priority.—The Director, to the maximum extent practicable, shall pay subrogation claims submitted under this title only after paying claims submitted by injured parties that are not insurance companies seeking payment as subrogees. (B) Parameters of determination.—In determining and settling a claim under this title, the Director shall determine only— (i) whether the claimant is an injured person; (ii) whether the injury that is the subject of the claim resulted from the fire; (iii) the amount, if any, to be allowed and paid under this title; and (iv) the person or persons entitled to receive the amount. (C) Insurance and other benefits.— (i) In general.—In determining the amount of, and paying, a claim under this title, to prevent recovery by a claimant in excess of actual compensatory damages, the Director shall reduce the amount to be paid for the claim by an amount that is equal to the total of insurance benefits (excluding life insurance benefits) or other payments or settlements of any nature that were paid, or will be paid, with respect to the claim. 114 STAT. 586 (ii) Government loans.—This subparagraph shall not apply to the receipt by a claimant of any Government loan that is required to be repaid by the claimant. (2) Partial payment.— (A) In general.—At the request of a claimant, the Director may make one or more advance or partial payments before the final settlement of a claim, including final settlement on any portion or aspect of a claim that is determined to be severable. (B) Judicial decision.—If a claimant receives a partial payment on a claim under this title, but further payment on the claim is subsequently denied by the Director, the claimant may— (i) seek judicial review under subsection (i); and (ii) keep any partial payment that the claimant received, unless the Director determines that the claimant— (I) was not eligible to receive the compensation; or (II) fraudulently procured the compensation. (3) Rights of insurer or other third party.—If an insurer or other third party pays any amount to a claimant to compensate for an injury described in subsection (a), the insurer or other third party shall be subrogated to any right that the claimant has to receive any payment under this title or any other law. (4) Allowable damages.— (A) Loss of property.—A claim that is paid for loss of property under this title may include otherwise uncompensated damages resulting from the Cerro Grande fire for— (i) an uninsured or underinsured property loss; (ii) a decrease in the value of real property; (iii) damage to physical infrastructure; (iv) a cost resulting from lost tribal subsistence from hunting, fishing, firewood gathering, timbering, grazing, or agricultural activities conducted on land damaged by the Cerro Grande fire; (v) a cost of reforestation or revegetation on tribal or non-Federal land, to the extent that the cost of reforestation or revegetation is not covered by any other Federal program; and (vi) any other loss that the Director determines to be appropriate for inclusion as loss of property. (B) Business loss.—A claim that is paid for injury under this title may include damages resulting from the Cerro Grande fire for the following types of otherwise uncompensated business loss: (i) Damage to tangible assets or inventory. (ii) Business interruption losses. (iii) Overhead costs. (iv) Employee wages for work not performed. (v) Any other loss that the Director determines to be appropriate for inclusion as business loss. (C) Financial loss.—A claim that is paid for injury under this title may include damages resulting from the 114 STAT. 587Cerro Grande fire for the following types of otherwise uncompensated financial loss: (i) Increased mortgage interest costs. (ii) An insurance deductible. (iii) A temporary living or relocation expense. (iv) Lost wages or personal income. (v) Emergency staffing expenses. (vi) Debris removal and other cleanup costs. (vii) Costs of reasonable efforts, as determined by the Director, to reduce the risk of wildfire, flood, or other natural disaster in the counties specified in section 102(a)(4), to risk levels prevailing in those counties before the Cerro Grande fire, that are incurred not later than the date that is 3 years after the date on which the regulations under subsection (f) are first promulgated. (viii) A premium for flood insurance that is required to be paid on or before May 12, 2002, if, as a result of the Cerro Grande fire, a person that was not required to purchase flood insurance before the Cerro Grande fire is required to purchase flood insurance. (ix) Any other loss that the Director determines to be appropriate for inclusion as financial loss. (e) Acceptance of Award.—The acceptance by a claimant of any payment under this title, except an advance or partial payment made under subsection (d)(2), shall— (1) be final and conclusive on the claimant (but not on any subrogee of the claimant), with respect to all claims arising out of or relating to the same subject matter; (2) constitute a complete release of all claims against the United States (including any agency or employee of the United States) under chapter 171 of title 28, United States Code (commonly known as the “Federal Tort Claims Act”), or any other Federal or State law, arising out of or relating to the same subject matter; and (3) shall include a certification by the claimant, made under penalty of perjury and subject to the provisions of section 1001 of title 18, United States Code, that such claim is true and correct. (f) Regulations and Public Information.— (1) Regulations.—Notwithstanding any other provision of law, not later than 45 days after the date of the enactment of this Act, the Director shall promulgate and publish in the Federal Register interim final regulations for the processing and payment of claims under this title. (2) Public information.— (A) In general.—At the time at which the Director promulgates regulations under paragraph (1), the Director shall publish, in newspapers of general circulation in the State of New Mexico, a clear, concise, and easily understandable explanation, in English and Spanish, of— (i) the rights conferred under this title; and (ii) the procedural and other requirements of the regulations promulgated under paragraph (1). (B) Dissemination through other media.—The Director shall disseminate the explanation published under 114 STAT. 588subparagraph (A) through brochures, pamphlets, radio, television, and other media that the Director determines are likely to reach prospective claimants. (g) Consultation.—In administering this title, the Director shall consult with the Secretary of the Interior, the Secretary of Energy, the Secretary of Agriculture, the Administrator of the Small Business Administration, other Federal agencies, and State, local, and tribal authorities, as determined to be necessary by the Director to— (1) ensure the efficient administration of the claims process; and (2) provide for local concerns. (h) Election of Remedy.— (1) In general.—An injured person may elect to seek compensation from the United States for one or more injuries resulting from the Cerro Grande fire by— (A) submitting a claim under this title; (B) filing a claim or bringing a civil action under chapter 171 of title 28, United States Code; or (C) bringing an authorized civil action under any other provision of law. (2) Effect of election.—An election by an injured person to seek compensation in any manner described in paragraph (1) shall be final and conclusive on the claimant with respect to all injuries resulting from the Cerro Grande fire that are suffered by the claimant. (3) Arbitration.— (A) In general.—Not later than 45 days after the date of the enactment of this Act, the Director shall establish by regulation procedures under which a dispute regarding a claim submitted under this title may be settled by arbitration. (B) Arbitration as remedy.—On establishment of arbitration procedures under subparagraph (A), an injured person that submits a disputed claim under this title may elect to settle the claim through arbitration. (C) Binding effect.—An election by an injured person to settle a claim through arbitration under this paragraph shall— (i) be binding; and (ii) preclude any exercise by the injured person of the right to judicial review of a claim described in subsection (i). (4) No effect on entitlements.—Nothing in this title affects any right of a claimant to file a claim for benefits under any Federal entitlement program. (i) Judicial Review.— (1) In general.—Any claimant aggrieved by a final decision of the Director under this title may, not later than 60 days after the date on which the decision is issued, bring a civil action in the United States District Court for the District of New Mexico, to modify or set aside the decision, in whole or in part. (2) Record.—The court shall hear a civil action under paragraph (1) on the record made before the Director. (3) Standard.—The decision of the Director incorporating the findings of the Director shall be upheld if the decision 114 STAT. 589is supported by substantial evidence on the record considered as a whole. (j) Attorney’s and Agent’s Fees.— (1) In general.—No attorney or agent, acting alone or in combination with any other attorney or agent, shall charge, demand, receive, or collect, for services rendered in connection with a claim submitted under this title, fees in excess of 10 percent of the amount of any payment on the claim. (2) Violation.—An attorney or agent who violates paragraph (1) shall be fined not more than $10,000. (k) Waiver of Requirement For Matching Funds.— (1) In general.—Notwithstanding any other provision of law, a State or local project that is determined by the Director to be carried out in response to the Cerro Grande fire under any Federal program that applies to an area affected by the Cerro Grande fire shall not be subject to any requirement for State or local matching funds to pay the cost of the project under the Federal program. (2) Federal share.—The Federal share of the costs of a project described in paragraph (1) shall be 100 percent. (l) Applicability of Debt Collection Requirements.—Section 3716 of title 31, United States Code, shall not apply to any payment under this title. (m) Indian Compensation.—Notwithstanding any other provision of law, in the case of an Indian tribe, a tribal entity, or a member of an Indian tribe that submits a claim under this title— (1) the Bureau of Indian Affairs shall have no authority over, or any trust obligation regarding, any aspect of the submission of, or any payment received for, the claim; (2) the Indian tribe, tribal entity, or member of an Indian tribe shall be entitled to proceed under this title in the same manner and to the same extent as any other injured person; and (3) except with respect to land damaged by the Cerro Grande fire that is the subject of the claim, the Bureau of Indian Affairs shall have no responsibility to restore land damaged by the Cerro Grande fire. (n) Report.—Not later than 1 year after the date of promulgation of regulations under subsection (f)(1), and annually thereafter, the Director shall submit to Congress a report that describes the claims submitted under this title during the year preceding the date of submission of the report, including, for each claim— (1) the amount claimed; (2) a brief description of the nature of the claim; (3) the status or disposition of the claim, including the amount of any payment under this title; and (4) the Comptroller General shall conduct an annual audit on the payment of all claims made under this title and shall report to the Congress on the results of this audit beginning not later than the expiration of the 1-year period beginning on the date of the enactment of this Act. This report shall include a review of all subrogation claims for which insurance companies have been paid or are seeking payment as subrogees under this title. (o) Authorization of Appropriations.— 114 STAT. 590 (1) In general.—Notwithstanding any other provision of law, there are authorized to be appropriated such sums as are necessary to carry out this Act, to remain available until expended. (2) FEMA funds.—None of the funds provided to the Federal Emergency Management Agency for the administration of disaster relief shall be used to carry out this Act.