[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5160 Introduced in House (IH)]







106th CONGRESS
  2d Session
                                H. R. 5160

 To provide compensation to wheat producers and elevator operators who 
sold wheat between May 2, 1993, and January 24, 1994, when the Federal 
 Grain Inspection Service maintained erroneous standards for official 
                 inspections of wheat protein content.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 12, 2000

 Mr. Pomeroy introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To provide compensation to wheat producers and elevator operators who 
sold wheat between May 2, 1993, and January 24, 1994, when the Federal 
 Grain Inspection Service maintained erroneous standards for official 
                 inspections of wheat protein content.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Wheat Protein Mismeasurement 
Compensation Act''.

SEC. 2. COMPENSATION FOR UNDERESTIMATION OF WHEAT PROTEIN CONTENT.

    (a) Authorization for Compensation.--
            (1) In general.--The United States shall pay such amount as 
        is necessary to compensate wheat producers and elevator 
        operators for lost revenue on the sale of wheat, and lost 
        earnings thereon, resulting from the adoption by the Federal 
        Grain Inspection Service in May 1993, of erroneous protein 
        measurement standards based on miscalibrated Near Infrared 
        Transmittance (hereinafter in this Act referred to as ``NIRT'') 
        instruments.
            (2) Settlement agreement.--After notifying each known 
        eligible person of the provisions of this Act at the person's 
        last known address via first class mail, the Secretary of 
        Agriculture shall negotiate a settlement agreement with the 
        class representatives and their attorneys of record on behalf 
        of the class of claimants in the case of Gollehon Farming v. 
        United States, 117 F. Supp. 2d 1145 (D. Mont. 1998), aff'd, 207 
        F.3d 1373 (Fed. Cir. 2000), in accordance with the provisions 
        of this Act. Pursuant to the settlement agreement, the United 
        States will pay a lump-sum amount into a settlement trust, and 
        the principal and income of the trust shall be distributed in 
        accordance with the settlement agreement and the orders of the 
        court. The amount of the lump-sum shall be not greater than 
        $152,400,000, plus the amounts of interest, reimbursements, and 
        reserves determined in accordance with subsections (d) and (e). 
        The settlement shall be subject to court approval.
    (b) Persons Eligible for Relief.--Persons eligible for compensation 
pursuant to subsection (a) shall consist of the following:
            (1) Wheat producers.--All wheat producers in the United 
        States who sold wheat between May 2, 1993, and January 24, 
        1994, inclusive, for a price determined wholly or in part with 
        reference to measured or estimated protein content.
            (2) Elevator operators.--All independent country grain 
        elevator operators in the United States (and any persons who 
        purchased wheat from such operators) who resold wheat at a loss 
        resulting from the change to NIRT.
    (c) Required Showing.--A claimant shall be entitled to compensation 
pursuant to subsection (a) upon a showing of--
            (1) membership in the class of persons eligible for 
        compensation as described in subsection (b); and
            (2) the number of bushels of wheat sold during the period 
        May 2, 1993, through January 24, 1994, inclusive, and any other 
        information required by the settlement agreement.
    (d) Amount of Individual Compensation.--
            (1) Gross amount.--The gross amount of compensation payable 
        to an individual claimant shall be determined in accordance 
        with a formula which may be negotiated as part of the 
        settlement agreement, or determined by the settlement trustee 
        in accordance with applicable orders of the court, or both. The 
        formula for determining the gross amounts of individual claims 
        shall be based primarily upon the number of bushels of wheat 
        sold by the claimant during the period from May 2, 1993, 
        through January 24, 1994, and may also take into account any 
        other relevant factors, including the type and grade of wheat 
        sold, location of crop land, estimated protein content, date of 
        harvest, and date of sale. In any event, the average gross 
        amount shall be equal to $0.30 per bushel, plus interest as 
        determined in accordance with paragraph (2) and reimbursement 
        of costs and attorneys' fees as provided in subsection (e), 
        subject to the provisions of subsection (e)(2).
            (2) Interest.--The interest component of each claimant's 
        individual gross amount shall be computed at the rates in 
        effect under section 6621(a)(1) of the Internal Revenue Code of 
        1986. Such interest shall be limited to the period from January 
        1, 1994, until the date on which the lump-sum amount is paid 
        into the settlement trust.
    (e) Procedures Regarding Settlement.--
            (1) Negotiated settlement.--The Secretary shall negotiate a 
        settlement with the Gollehon Farming class representatives and 
        their attorneys of record, on behalf of the entire class of 
        persons eligible for compensation as described in subsection 
        (b), which settlement shall determine and set forth the 
        following:
                    (A) Aggregate amount.--The aggregate amount that is 
                reasonably estimated to be necessary to fully 
                compensate all members of the class as provided in 
                subsection (d), including interest and reimbursement of 
                attorney's fees and expenses, which amount shall be 
                paid into a settlement trust to be administered in 
                accordance with the terms and conditions of the 
                settlement agreement and the orders of the court.
                    (B) Reserve.--An additional amount equal to 25 
                percent of the amount determined in accordance with 
                subparagraph (A) to be paid into the settlement trust 
                and used as a reserve in case the aggregate amount 
                determined in accordance with subparagraph (A) proves 
                to be insufficient to fully compensate all class 
                members, and provisions governing the disposition of 
                any amounts that remain in the trust upon its 
                termination, after payment of all fees and expenses.
                    (C) Procedures and schedule.--The procedures and 
                schedule for identifying members of the class of 
                persons eligible for compensation and paying their 
                claims, including the use of information available to 
                the Secretary for identifying potential claimants and 
                quantifying individual claims.
                    (D) Payment of fees and expenses.--Provisions 
                regarding the investment of trust funds and the use of 
                trust earnings to pay all or part of the fees and 
                expenses associated with settlement implementation, 
                trust administration, and legal representation.
                    (E) Other provisions.--Any other provisions that 
                are reasonable and appropriate for achieving the 
                purposes of this Act.
            (2) Proportional reductions.--In the event that the 
        aggregate gross amount of individual claims as determined in 
        accordance with subsection (d) exceeds the estimated and 
        reserve amounts determined pursuant to subparagraphs (A) and 
        (B) of paragraph (1), the amounts computed for individual 
        claimants shall be proportionally reduced so that the aggregate 
        amount of individual net payments equals such estimated and 
        reserve amounts.
            (3) Stipulation.--A stipulation setting forth the terms of 
        the settlement shall be filed in the Gollehon Farming case, or 
        in a new case filed for such purpose by the Gollehon Farming 
        plaintiffs and their attorneys in a United States district 
        court or the United States Court of Federal Claims, and shall 
        become final upon the approval of the court.
            (4) Attorney's fees.--Attorney's fees payable from the 
        trust in connection with claims compensated pursuant to this 
        Act shall be determined in accordance with the maximum rate 
        provided by section 2678 of title 28, United States Code. To 
        the extent that such fees are not payable through deductions 
        from individual claims, they shall be payable from trust 
        earnings, trust principal in excess of the aggregate amount of 
        individual claims, and trust principal held for class members 
        who cannot be located and paid.
            (5) Use of amounts remaining in trust after payments.--The 
        settlement agreement may provide that any amounts remaining in 
        the trust after the time period for paying individual claims 
        has expired, and after payment of all fees and expenses, are to 
        be used for one or both of the following purposes:
                    (A) Study.--A study and report to Congress, by an 
                appropriate commission of lawyers and other experts, on 
                statutory changes that are recommended for purposes of 
                securing full and fair compensation to persons who 
                suffer losses as a result of negligent or unlawful 
                actions by agents and employees of the United States.
                    (B) Programs.--Programs of benefit to farmers who 
                produce wheat that is sold for a price determined 
                wholly or in part with reference to measured or 
                estimated protein content.
    (f) Waiver of Conditions and Limitations.--Eligible persons as 
defined in subsection (b) shall be entitled to receive compensation as 
provided herein notwithstanding their noncompliance with section 2675 
of title 28, United States Code, and notwithstanding any previous 
denial of their claims or any previous judgment of any court to the 
contrary, including the judgment in Gollehon Farming, and their claims 
shall not be subject to any limitation periods for asserting such 
claims, including the limitations in section 2401 of title 28, United 
States Code.
    (g) Source of Payment.--Notwithstanding any other provision of law, 
the amount of the lump-sum settlement negotiated by the Secretary 
pursuant to subsection (e) shall be paid from the appropriation made by 
section 1304 of title 31, United States Code.
    (h) Full Settlement.--The payment authorized by this Act shall be 
in full satisfaction of all claims in connection with lost revenue on 
the sale of wheat, and lost earnings thereon, resulting from the 
adoption by the Federal Grain Inspection Service in May 1993, of 
erroneous protein measurement standards based on miscalibrated NIRT 
instruments.
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