N002292
Tuesday, January 22, 2002 3:28 PM
September 11th Vicitim Compensation Fund
January 22, 2002
VIA ELECTRONIC MAIL &
FACSIMILE
Mr. Kenneth L. Zwick
Director, Office of Management Programs
Civil Division
United States Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
Re: CFR Part 104, Interim Final Rule for the September 11th Victim
Compensation Fund of 2001
Dear Mr. Zwick:
           Hotel Employees & Restaurant Employees International Union, Local
100 (the â??Unionâ??) represented 43 workers who perished in the tragic events
of September 11th. These individuals all worked for Windows on the World, a
restaurant located in the World Trade Center. Since September 11th the
surviving family members of these 43 workers have looked to our Union for
assistance and advice in attempting to put their lives back together. In
response to the concerns of the families and based on the Unionâ??s analysis we
submit the following comments with respect to the regulations promulgated by
the Department of Justice on December 20, 2001, concerning the administration
of the September 11th Victims Compensation Fund of 2001 (the â??Fundâ??).
           Many of the Unionâ??s concerns arise from the fact that the
majority of the families are immigrants and had incomes on the lower end of
the economic scale. In general, we fear that the administration of the Fund
as contemplated by the regulations will punish those most in need because it
proposes a regressive model for determining economic losses.
           Below we have outlined the regulations that we believe require
significant alteration before our survivorsâ?? families could consider opting
into the Fund:
           The first concept that needs to be changed is the provision that
survivorsâ?? families must waive their rights to proceed in Federal or State
Court before opting into the Fund. It is fundamentally unfair to force
survivors to waive their rights before they are aware of the amount of
compensation they will receive and when they will receive it. There needs to
be a mechanism for claimants to receive an advisory opinion from an
independent, non-political evaluator regarding the valuation of the award
before they are forced to waive their rights to litigate. As it is now
drafted, 28 CFR § 104.31 proposes two separate tracks to process claims. A
third track should be added in order to provide for such an advisory opinion.
           A second crucial area that needs to be addressed relates to
immigrant, non-citizen claimants. The Union has grave concerns that the
residency status of the claimant will disqualify or delay the distribution of
awards to families who are non-citizens. For example, the requirement under
28 CFR § 104.4 that a Personal Administrator must be installed according to
the laws of the decedentâ??s domicile will, in New York, preclude an
undocumented spouse of a victim to assume the role of Personal
Administrator. We believe that this could potentially delay the distribution
of funds from the Award months or even years. The regulations should be
amended to state explicitly that no regulation therein will cause the
disqualification or delay in the payment of awards to undocumented claimants.
           Also with regard to this issue of undocumented claimants, the
regulations should prohibit the Justice Department from using the data
provided in making claims to the Fund as a basis for legal action against the
claimants or their families based on citizenship status.
           A third key area of concern is the cap on non-economic losses of
$250,000 per decedent and $50,000 for each dependent. Because many of the
workers our Union represented were low wage workers, their familiesâ?? recovery
for economic losses will be significantly smaller than other families. One
method to provide a more equitable system would be to increase the amount of
non-economic recovery available to all families.
           We would also like to take this opportunity to relay to you some
individual comments about the Fund from survivorsâ?? families that we would
also like to be addressed. First, the definition of dependent as defined in
28 CFR § 104.3(b) is too limited, and should be expanded to include anyone
who was financially or emotionally dependent upon the decedent, such as
domestic partners.
           Another concern is that the manner in which the regulations
determine economic losses punishes families in which the decedent was an
older worker. If the decedent was a low wage earner the disparity is
compounded. It is the Unionâ??s position that this approach discriminates
against older workers and the regulations should be rewritten to make for
more equitable awards.
           Finally, with respect Collateral Sources, 28 CFR § 104.47, many
of the victimsâ?? families believe that such income should not be reduced from
the overall Award. While under normal circumstances such benefits would have
been offset against personal injury recoveries, the Fund has been established
in response to extraordinary events and we believe that new rules need to
apply. Furthermore, if claimants choose to opt into the Fund, rather than
litigate for a more lucrative outcome, they should not be penalized for
availing themselves of collateral sources.
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Comments by
Local 100, H.E.R.E
New York, NY