[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 3133 Introduced in Senate (IS)]







106th CONGRESS
  2d Session
                                S. 3133

   To provide compensation to producers for underestimation of wheat 
                            protein content.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

           September 28 (legislative day, September 22), 2000

 Mr. Baucus (for himself and Mr. Burns) introduced the following bill; 
  which was read twice and referred to the Committee on Agriculture, 
                        Nutrition, and Forestry

_______________________________________________________________________

                                 A BILL


 
   To provide compensation to producers for underestimation 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. FINDINGS.

    Congress finds that--
            (1) it is the policy of Congress, as stated in the United 
        States Grain Standards Act (7 U.S.C. 71 et seq.), to provide 
        for an official inspection system for grain and promote the 
        uniform application of the system, with the objectives that 
        grain may be marketed in an orderly and timely manner and that 
        trading in grain may be facilitated;
            (2) in May 1993, the Secretary of Agriculture, acting 
        through the Federal Grain Inspection Service, required the use 
        of new technology for determining the protein content of wheat;
            (3) the calibrations provided by the Secretary for the new 
        protein measurement instruments--
                    (A) were erroneous; and
                    (B) resulted in protein determinations that were 
                lower than those produced by the technology in use 
                before use of the new technology was required;
            (4) as a result of the miscalibration and the failure to 
        provide adequate notice and opportunity for comment, wheat 
        purchasers were forced to adjust their protein measurement and 
        pricing systems in order to protect themselves on resale, 
        resulting in loss of revenue from the sale of high-protein 
        wheat; and
            (5) it is necessary and appropriate for Congress to enact a 
        legislative remedy to provide compensation that is reasonable 
        and necessary to redress the losses caused by the actions of 
        the Secretary and to achieve the policies stated in the United 
        States Grain Standards Act (7 U.S.C. 71 et seq.).

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Claim amount.--The term ``claim amount'' means the 
        gross amount of compensation paid to a claimant under this Act.
            (2) Eligible claimant.--The term ``eligible claimant'' 
        means--
                    (A) a wheat producer in the United States that sold 
                wheat between May 2, 1993, and January 24, 1994, 
                inclusive, for a price determined in whole or in part 
                with reference to measured or estimated protein 
                content; or
                    (B) an independent country gain elevator operator 
                in the United States (or a person that purchased wheat 
                from such an operator) that resold wheat at a loss 
                resulting from erroneous protein measurement standards 
                based on miscalibrated near infrared transmittance 
                instruments.
            (3) Secretary.--The term ``Secretary'' means the Secretary 
        of Agriculture.
            (4) Settlement agreement.--The term ``settlement 
        agreement'' means the settlement agreement negotiated under 
        subsection (b)(1).

SEC. 4. COMPENSATION FOR UNDERESTIMATION OF WHEAT PROTEIN CONTENT.

    (a) Compensation.--The Secretary shall pay such amounts as are 
necessary, not exceeding $465,000,000 in the aggregate, to compensate 
eligible claimants for lost revenue on the sale of wheat (including 
lost earnings, interest, and reimbursement of attorneys' fees and 
expenses) resulting from the adoption by the Federal Grain Inspection 
Service, in May 1993, of erroneous protein measurement standards based 
on miscalibrated near infrared transmittance instruments.
    (b) Settlement Agreement.--
            (1) In general.--Not later than 90 days after the date of 
        enactment of this Act, the Secretary shall negotiate a 
        settlement agreement with the class of plaintiffs in the case 
        of Gollehon Farming v. United States, 117 F. Supp. 2d 1145 (D. 
        Mont. 1998), affd, 207 F.3d 1373 (Fed. Cir. 2000), in 
        accordance with this Act.
            (2) Aggregate amount to be paid.--The settlement 
        agreement--
                    (A) shall provide that the Secretary shall deposit 
                in a settlement trust, to be administered in accordance 
                with the settlement agreement and any applicable 
                judicial orders, the aggregate amount that the 
                Secretary reasonably estimates will be necessary to 
                fully compensate all eligible claimants (including lost 
                earnings, interest, and reimbursement of attorneys' 
                fees and expenses); and
                    (B) may provide that the Secretary shall pay into 
                the settlement trust an additional amount as a reserve.
            (3) Disposition provision.--The settlement agreement shall 
        provide that any amounts that remain in the trust on the 
        termination of the trust, after payment of all fees and 
        expenses, shall be returned to the general fund of the United 
        States Treasury.
            (4) Other components of settlement agreement.--
                    (A) Procedures and schedule.--The settlement 
                agreement shall specify procedures and a schedule for 
                identifying and paying the claims of eligible 
                claimants, including the use of information available 
                to the Secretary for identifying eligible claimants and 
                quantifying individual claims.
                    (B) Investment of trust funds.--The settlement 
                agreement shall provide for 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 and trust administration.
                    (C) Other provisions.--The settlement agreement 
                shall contain any other provisions that the Secretary 
                and the class representatives determine to be necessary 
                to carry out this Act.
            (5) Judicial approval.--
                    (A) In general.--As soon as practicable after 
                completing negotiation of the settlement agreement, the 
                Secretary shall--
                            (i) file the settlement agreement in the 
                        judicial proceeding referred to in subsection 
                        (b)(1); and
                            (ii) seek a declaratory judgment that the 
                        settlement agreement meets the requirements of 
                        this Act.
                    (B) Effectiveness of settlement agreement.--An 
                order of the court declaring that the settlement 
                agreement meets the requirements of this Act shall be 
                considered to be a compromise settlement for the 
                purposes of section 1304 of title 31, United States 
                Code.
    (c) Required Showing.--An eligible claimant shall be entitled to 
compensation under subsection (a) on demonstration by the claimant to 
the Secretary of--
            (1) qualification as an eligible claimant;
            (2) a reasonable estimate of the number of bushels of wheat 
        sold by the eligible claimant during the period of May 2, 1993, 
        through January 24, 1994, inclusive;
            (3) evidence of loss;
            (4) any other information required by the settlement 
        agreement.
    (d) Amount of Individual Compensation.--
            (1) In general.--
                    (A) Determination.--A claim amount shall be 
                determined in accordance with a formula that may be--
                            (i) negotiated as part of the settlement 
                        agreement; or
                            (ii) determined by the settlement trustee 
                        in accordance with any applicable judicial 
                        orders.
                    (B) Formula.--Subject to subparagraph (C), the 
                formula for determining the claim amount of a 
                claimant--
                            (i) shall be based primarily on the number 
                        of bushels of wheat sold by the eligible 
                        claimant during the period from May 2, 1993, 
                        through January 24, 1994; and
                            (ii) may take into account any other 
                        relevant factors, including--
                                    (I) the type and grade of wheat 
                                sold;
                                    (II) the location of crop land;
                                    (III) the estimated protein content 
                                of the wheat sold;
                                    (IV) the date of harvest of the 
                                wheat; and
                                    (V) the date of sale of the wheat.
                    (C) Average.--The average claim amount for all 
                claimants compensated under this Act shall be equal 
                to--
                            (i) $0.30 per bushel; plus
                            (ii)(I) interest (as determined in 
                        accordance with this subsection); and
                            (II) reimbursement of costs and attorneys' 
                        fees as provided in subsection (e), subject to 
                        subsection (e)(2).
                    (D) Excess of settlement amount over deposited 
                amount.--If the aggregate claim amount of individual 
                claims determined under this subsection exceeds the 
                amount deposited in the settlement trust under 
                subsection (b)(2), the amounts computed for individual 
                claimants shall be proportionally reduced so that the 
                aggregate amount of individual net payments equals the 
                amount deposited.
            (2) Interest.--The interest component of the claim amount 
        of a claimant shall be--
                    (A) computed at the rate in effect on the date of 
                payment under section 6621(a)(1) of the Internal 
                Revenue Code of 1986; and
                    (B) limited to the amount of interest due for the 
                period from January 1, 1994, until the date on which 
                the lump-sum amount is paid into the settlement trust.
    (e) Procedure.--
            (1) In general.--The settlement negotiated by the Secretary 
        under subsection (b)(1) shall be on behalf of the entire class 
        of eligible claimants.
            (2) Attorney's fees and other expenses.--
                    (A) Attorney's fee rate.--Attorney's fees payable 
                from the trust in connection with claims compensated 
                under this Act shall be paid at the maximum rate 
                provided by section 2678 of title 28, United States 
                Code, for judgments rendered under section 1346(b) of 
                that title.
                    (B) Source of payment.--To the extent that they are 
                not payable through deduction from an individual claim, 
                attorney's fees and all other expenses of litigation 
                and settlement shall be payable from--
                            (i) settlement trust earnings;
                            (ii) settlement trust principal in excess 
                        of the aggregate amount of individual claims; 
                        and
                            (iii) settlement trust principal held for 
                        class members that cannot be located and paid.
    (f) Waiver of Conditions and Limitations.--
            (1) In general.--An eligible claimant shall be entitled to 
        receive compensation under this Act, notwithstanding--
                    (A) any noncompliance of the eligible person with 
                section 2675 of title 28, United States Code; or
                    (B) any previous administrative or judicial denial 
                of a claim of the eligible person.
            (2) No limitation on claims.--A claim by an eligible person 
        described in subsection (c) shall not be subject to any 
        limitation period for asserting the claim, including the 
        limitations under section 2401 of title 28, United States Code.
    (g) Source and Timing of Payment.--Notwithstanding any other 
provision of law, the amount of the lump-sum payment by the Secretary 
under subsection (b)(1) shall be paid from the appropriation made by 
section 1304 of title 31, United States Code, not later than 30 days 
after the date of entry of a declaratory judgment under subsection 
(b)(5)(B).
    (h) Other Rights.--
            (1) In general.--The establishment of the right to 
        compensation under this Act shall not affect any other right of 
        recovery of a claimant.
            (2) Prohibition of double recovery.--
                    (A) In general.--The amount of any payment received 
                by an eligible claimant under this Act shall be applied 
                toward satisfaction of all claims in connection with 
                lost revenue on the sale of wheat, and lost earnings on 
                those revenues, resulting from the adoption by the 
                Secretary in May, 1993, of erroneous protein 
                measurement standards based on miscalibrated near 
                infrared transmittance instruments.
                    (B) No effect on federal or state benefits.--Any 
                compensation received by a claimant under this Act 
                shall not reduce, affect, or be considered in the 
                determination of past or future eligibility for, or the 
                amount of, any benefit to which the claimant may be 
                entitled under any Federal or State farm program.
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