[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1761 Placed on Calendar Senate (PCS)]







                                                       Calendar No. 222
109th CONGRESS
  1st Session
                                S. 1761

To clarify the liability of government contractors assisting in rescue, 
 recovery, repair, and reconstruction work in the Gulf Coast region of 
    the United States affected by Hurricane Katrina or other major 
                               disasters.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 22, 2005

 Mr. Thune (for himself, Mr. Vitter, Mr. Lott, Ms. Murkowski, and Mr. 
  Inhofe) introduced the following bill; which was read the first time

                           September 26, 2005

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 A BILL


 
To clarify the liability of government contractors assisting in rescue, 
 recovery, repair, and reconstruction work in the Gulf Coast region of 
    the United States affected by Hurricane Katrina or other major 
                               disasters.

    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 ``Gulf Coast Recovery Act''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) while public officials have the responsibility and 
        expertise to direct and control the Federal, State and local 
        response to any disaster, those officials lack the manpower and 
        equipment necessary to take all of the many steps necessary to 
        implement such a response;
            (2) in the wake of a disaster, public officials have to 
        depend on private contractors for logistical and other support;
            (3) historically, private contractors have answered the 
        call, providing valuable service to the public in times of 
        disaster;
            (4) those contractors answered the call on September 11, 
        2001, and in the following weeks and months, working hand-in-
        hand with Federal, State, and local officials to rescue the 
        survivors of the terrorist attacks on that historic date, to 
        recover the bodies of those who died, to remove mountains of 
        debris, to reconstruct the Pentagon, and ultimately, to restore 
        some sense of normalcy to New York City and Arlington, 
        Virginia;
            (5) the expertise and equipment that private contractors 
        contributed to the Federal, State, and local response to the 
        terrorist attacks on September 11, 2001, greatly enhanced that 
        response, increasing not only the efficiency but also the 
        effectiveness of that response;
            (6) the support that private contractors provide to 
        Federal, State, and local officials in times of disaster--
                    (A) make it safer for police, firefighters, and 
                other rescue workers to search for, rescue, and recover 
                both persons and property dislocated by the disaster; 
                and
                    (B) enable those officials to quickly address 
                dangerous conditions that threaten life and property, 
                to restore basic public services, and to protect public 
                safety and health;
            (7) it is in the national interest to have private 
        contractors assist public officials in times of disaster;
            (8) by providing support to the Federal, State or local 
        response to a disaster, private contractors risk future 
        litigation and liability even if those contractors are in full 
        compliance with all Federal, State, and local laws (including 
        regulations) that apply to their work;
            (9) class action lawsuits have been brought against the 
        private contractors that supervised the heroic response to the 
        terrorist attacks on the World Trade Center in New York City on 
        September 11, 2001;
            (10) well-founded fears of future litigation and liability 
        under existing law discourage contractors from assisting in 
        times of disaster;
            (11) whether private contractors remain willing to offer 
        their expertise and equipment to public officials in times of 
        disaster substantially affects, burdens, and deters interstate 
        commerce and travel;
            (12) clarifying the liability that private contractors must 
        ultimately risk simply to support a Federal, State, or local 
        response to a disaster will help--
                    (A) to ensure that those contractors continue to 
                answer the governmental requests for assistance in 
                times of great need; and
                    (B) to limit the legal expenses that regrettably 
                but inevitably inflate the cost of the recovery from a 
                disaster; and
            (13) temporarily insulating private contractors from any 
        liability that private parties may seek to impose on the 
        contractors under certain Federal laws would increase the power 
        and authority of the Federal agencies that bear the primary 
        responsibility for the administration of those laws to 
        effectively direct and control the response to a disaster.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Disaster zone.--The term ``disaster zone'' means--
                    (A) the region of the United States in which major 
                disasters relating to Hurricane Katrina were declared 
                by the President on August 29, 2005, in accordance with 
                section 401 of the Robert T. Stafford Disaster Relief 
                and Emergency Assistance Act (42 U.S.C. 5170); and
                    (B) any other region of the United States in which 
                a major disaster is so declared after that date, if the 
                disaster requires the provision of Federal assistance 
                in an amount that exceeds $15,000,000,000, as 
                determined by the President.
            (2) Government contract.--The term ``government contract'' 
        means--
                    (A) a contract between--
                            (i) a person, proprietorship, partnership, 
                        limited liability company, or corporation in 
                        the regular business of providing materials, 
                        labor, equipment, or services for construction-
                        related activities (including construction, 
                        demolition, repair, clean-up, alteration, 
                        remediation, and related engineering); and
                            (ii) any agency or instrumentality of the 
                        Federal Government or any State or local 
                        government; and
                    (B) a subcontract at any tier of a contract 
                described in subparagraph (A).

SEC. 4. LIMITATION ON LIABILITY OF FEDERAL CONTRACTORS UNDER CERTAIN 
              FEDERAL LAWS.

    (a) In General.--Notwithstanding any other provision of law, a 
person or entity awarded a government contract to perform rescue, 
recovery, repair, or reconstruction work in any portion of a disaster 
zone shall not, as a result of the performance of that work, be subject 
to liability that any private party may seek to impose under any 
provision of Federal law (including any regulation) that--
            (1) is administered by the Secretary of the Army, the 
        Administrator of the Environmental Protection Agency, or the 
        Secretary of Transportation; and
            (2) otherwise permits the filing of a lawsuit by a private 
        individual.
    (b) Effect on Litigation Management.--Nothing in this section 
limits or otherwise affects the application of section 5 of this Act.
    (c) Effect on Existing Law.--Nothing in this Act limits or 
otherwise affects the application, to a person or entity described in 
subsection (a), of--
            (1) title VII of the Civil Rights Act of 1964 (42 U.S.C. 
        2000e et seq.);
            (2) the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et 
        seq.); or
            (3) a comparable State fair employment practice law.

SEC. 5. LITIGATION MANAGEMENT.

    (a) Federal Cause of Action.--
            (1) In general.--There shall exist a Federal cause of 
        action for claims arising out of, relating to, or resulting 
        from the performance of a government contract, whether oral or 
        written, in a disaster zone for--
                    (A) the search, rescue, or recovery of individuals 
                or property dislocated by the disaster;
                    (B) the demolition, removal, repair, or 
                reconstruction of structures or utilities damaged by 
                the disaster;
                    (C) the clean-up or remediation of property 
                polluted by the disaster;
                    (D) the removal of debris deposited by the disaster 
                (including dredging); or
                    (E) the dewatering of property flooded by the 
                disaster.
            (2) Substantive law.--The substantive law for decision in 
        any action described in paragraph (1) shall be derived from the 
        law, including choice of law principles, of the State in which 
        the government contract was performed.
            (3) Claims.--A Federal cause of action shall be brought 
        under this subsection only for claims for injuries or damages 
        proximately caused by a person or entity awarded a government 
        contract.
            (4) Jurisdiction.--The appropriate United States district 
        court shall have original and exclusive jurisdiction over all 
        actions for any claim for loss of property, personal injury, or 
        death arising out of, relating to, or resulting from the 
        performance of a government contract, whether oral or written, 
        for an activity described in any of subparagraphs (A) through 
        (E) of paragraph (1).
    (b) Special Rules.--
            (1) In general.--The requirements described in paragraphs 
        (2) through (4) shall apply to an action brought under this 
        section.
            (2) Punitive damages.--No punitive damages intended to 
        punish or deter, exemplary damages, or other damages not 
        intended to compensate a plaintiff for actual losses may be 
        awarded in such an action.
            (3) Interest prior to judgment.--No party to such an action 
        shall be held liable for interest prior to judgment.
            (4) Noneconomic damages.--
                    (A) Definition of noneconomic damages.--In this 
                paragraph, the term ``noneconomic damages'' means 
                damages for losses for physical and emotional pain, 
                suffering, inconvenience, physical impairment, mental 
                anguish, disfigurement, loss of enjoyment of life, loss 
                of society and companionship, loss of consortium, 
                hedonic damages, injury to reputation, and any other 
                nonpecuniary losses.
                    (B) Award of noneconomic damages.--
                            (i) In general.--Noneconomic damages may be 
                        awarded against a defendant only in an amount 
                        directly proportional to the percentage of 
                        responsibility of the defendant for the harm to 
                        the plaintiff.
                            (ii) No physical harm.--No plaintiff may 
                        recover noneconomic damages unless the 
                        plaintiff suffered physical harm.
    (c) Collateral Sources.--Any recovery by a plaintiff in an action 
under this section shall be reduced by the amount of collateral source 
compensation, if any, that the plaintiff has received or is entitled to 
receive as a result of the same loss of property, personal injury, or 
death for which the plaintiff seeks compensation from the defendant.
    (d) Government Contractor Defense.--
            (1) Applicability.--Should a lawsuit be filed for claims 
        arising out of, relating to, or resulting from the performance 
        of a contract that meets the criteria described in paragraph 
        (2), there shall be a rebuttable presumption that--
                    (A) all elements of the government contractor 
                defense are satisfied; and
                    (B) the government contractor defense applies in 
                the lawsuit.
            (2) Criteria.--The criteria referred to in paragraph (1) 
        are that--
                    (A) the contract is a government contract that the 
                Chief of Engineers has certified as being necessary for 
                the recovery of a disaster zone from a disaster, as 
                provided in paragraphs (4) and (5); or
                    (B) the contract--
                            (i) is a subcontract of a contract 
                        described in subparagraph (A); and
                            (ii) is for an amount that was not 
                        reasonably expected, as of the time at which 
                        the subcontract was executed, to exceed 
                        $10,000,000.
            (3) Overcoming of presumption.--The presumption described 
        in paragraph (1) shall be overcome only by evidence showing 
        that a person or entity awarded a government contract acted 
        fraudulently or with willful misconduct in submitting 
        information to the Chief of Engineers in conjunction with the 
        consideration by the Chief of Engineers of the government 
        contract.
            (4) Exclusive responsibility.--
                    (A) In general.--The Chief of Engineers shall be 
                exclusively responsible for the review of any 
                government contract that any person or entity, 
                including any governmental entity, claims to be 
                necessary for the recovery of a disaster zone from a 
                disaster for the purpose of establishing a government 
                contractor defense in any lawsuit for claims arising 
                out of, relating to, or resulting from the performance 
                of the government contract.
                    (B) Review of scope.--Upon the submission of a 
                request for a certification that a government contract 
                was or will be necessary for the recovery of a disaster 
                zone from a disaster, the Chief of Engineers shall, not 
                later than 30 days after the date of receipt of the 
                request, whether made before or after the award of a 
                government contract--
                            (i) review the scope of work that the 
                        government contract does or will require; and
                            (ii) determine whether the majority of the 
                        work is for 1 or more of the activities 
                        described in subparagraphs (A) through (E) of 
                        subsection (a)(1).
                    (C) Certification.--If the Chief of Engineers 
                determines that at least a majority of the work that 
                the government contract does or will require is for 1 
                or more of those activities, the Chief of Engineers 
                shall promptly certify that the government contract is 
                necessary for the recovery of the disaster zone from a 
                disaster.
            (5) Issuance of certificate.--For each government contract 
        reviewed and certified by the Chief of Engineers under 
        paragraph (4), the Chief of Engineers shall promptly issue a 
        certificate of need for recovery of the applicable disaster 
        zone from a disaster to the person or entity that submitted the 
        request for the certification.
            (6) Records.--The Chief of Engineers shall maintain records 
        of certifications made, and certificates issued, under this 
        subsection.
    (e) Effect on Claims and Law.--
            (1) Claims for loss; enforcement actions.--Nothing in this 
        section applies to--
                    (A) any claim for loss under any workers 
                compensation law; or
                    (B) any enforcement action that any governmental 
                entity may bring against any person or entity allegedly 
                for violating any Federal or State law (including a 
                regulation).
            (2) Government contractor defense.--Nothing in this section 
        limits or restricts the government contractor defense as that 
        defense exists at common law.
            (3) Recklessness or willful misconduct.--Nothing in 
        subsection (b), (c), or (d) affects the liability of any person 
        or entity for recklessness or willful misconduct.
                                                       Calendar No. 222

109th CONGRESS

  1st Session

                                S. 1761

_______________________________________________________________________

                                 A BILL

To clarify the liability of government contractors assisting in rescue, 
 recovery, repair, and reconstruction work in the Gulf Coast region of 
    the United States affected by Hurricane Katrina or other major 
                               disasters.

_______________________________________________________________________

                           September 26, 2005

            Read the second time and placed on the calendar