1.This Act may be cited as the
Gulf Coast Recovery
Act
.
2.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.
3.In this Act:
(1)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)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).
4.Limitation on
liability of Federal contractors under certain Federal laws
(a)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 managementNothing
in this section limits or otherwise affects the application of section 5 of
this Act.
(c)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.
5.
(a)
(1)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)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)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)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)
(1)The requirements described in paragraphs (2) through (4)
shall apply to an action brought under this section.
(2)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 judgmentNo party to such an action shall be held liable for
interest prior to judgment.
(4)
(A)Definition of
noneconomic damagesIn 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)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 plaintiff may recover noneconomic damages unless the
plaintiff suffered physical harm.
(c)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)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)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
presumptionThe 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)
(A)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)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)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)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)The
Chief of Engineers shall maintain records of certifications made, and
certificates issued, under this subsection.
(e)
(1)Claims for
loss; enforcement actionsNothing 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 defenseNothing in this section limits or restricts
the government contractor defense as that defense exists at common law.
(3)Recklessness or
willful misconductNothing in subsection (b), (c), or (d) affects
the liability of any person or entity for recklessness or willful
misconduct.
September 26, 2005
Read the second time and placed on the
calendar