E9-30093. Federal Tort Claim Delegation

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This document amends the Department of Veterans Affairs (VA) regulations concerning delegation of authority to the Secretary of Veterans Affairs to consider, ascertain, adjust, determine, compromise, and settle claims under the Federal Tort Claims Act where the amount of settlement does not exceed $300,000, and the Secretary's redelegation of such authority to certain personnel within the Office of the General Counsel. The amendments will facilitate the timely processing of claims under the Federal Tort Claims Act by expanding VA's settlement authority and clarifying the delegation of such authority within the Department.

DATES:

Effective Date: December 18, 2009.

FOR FURTHER INFORMATION CONTACT:

E. Douglas Bradshaw, Jr., Assistant General Counsel (021), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, [phone]. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION:

Section 203 of the Veterans Benefits and Services Act of 1988 (Pub. L. 100-322) added former section 223 to title 38, United States Code (recodified in 1991 as 38 U.S.C. 515), permitting the Secretary of Veterans Affairs to settle tort claims not exceeding an amount to be delegated by the Attorney General of the United States (with the delegation not to exceed the maximum delegated to the United States Attorneys). In 1988, the Attorney General delegated $100,000 in settlement authority to the Secretary. 53 FR 37753, Sept. 28, 1988. In 1999, VA published a final rule reflecting that the Attorney General increased the delegation to $200,000. 64 FR 47111, Aug. 30, 1999. In 2008, the Attorney General increased the delegation of settlement authority to $300,000. 73 FR 70278, Nov. 20, 2008.

Current § 14.600 does not reflect the Attorney General's 2008 delegation or VA's determination regarding the necessary redelegations to Office of the General Counsel (OGC) personnel. The purpose of this rulemaking is to update VA regulations in light of the Attorney General's action increasing the amount of VA's settlement authority for tort claims and also to allow for the further delegation of this authority within OGC as necessary.

This amendment to 38 CFR 14.600(c)(2) delegates to the General Counsel, Deputy General Counsel, Assistant General Counsel (Professional Staff Group I), or those authorized to act for them, authority to consider, ascertain, adjust, determine, compromise, and settle a claim arising under the Federal Tort Claims Act; provided that any award, compromise, or settlement in excess of $300,000 shall be effected only with the prior written approval of the Attorney General or his or her designee. The amendment also provides for the execution of a memorandum explaining the basis for settlement of a claim in excess of $100,000 to be sent to the Department of Justice (DOJ), as required by the Attorney General's delegation to the Secretary.

Authority is also delegated to the Regional Counsels, or those authorized to act for them, and to the Deputy Assistant General Counsel (Professional Staff Group I) to consider, ascertain, adjust, determine, compromise, and settle any claim under the Federal Tort Claims Act; provided that any award, compromise, or settlement does not exceed $150,000; and provided, further, that whenever a settlement is effected in an amount in excess of $100,000, a memorandum fully explaining the basis for the action taken shall be sent to the DOJ, as required by the Attorney General's delegation to the Secretary.

This rule further amends § 14.600 to incorporate notes (1), (2), and (3) into the regulation text. We have determined that the notes, which prescribe the requirement for notifying DOJ of the basis for any settlement of a tort action under VA's delegated authority, are more appropriate for regulation text. Accordingly, we have amended § 14.600(c) and (d) to incorporate the DOJ notification requirement and delete the notes.

Administrative Procedure Act

This final rule concerns agency organization, management, procedure, or practice, specifically delegation of authority to employees of the Department to perform certain acts or render decisions. Accordingly, because this amendment merely reflects a delegation change and makes other non-substantive changes, this rule is exempt from the prior notice-and-comment and delayed-effective-date requirements of 5 U.S.C. 553.

Paperwork Reduction Act

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Executive Order 12866

Because this document is limited to agency organization and management, it is not within the definition of “regulation” in section 3(d) of Executive Order 12866 and therefore not subject to that Executive Order's requirements for regulatory actions.

Regulatory Flexibility Act

The initial and final regulatory flexibility analysis requirements of sections 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C. 601-612, are not applicable to this rule because a notice of proposed rulemaking is not required for this rule. Even so, the Secretary of Veterans Affairs hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act. This final rule will not affect any small entities. Only VA employees could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995, codified at 2 U.S.C. 1532, requires that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any year. This final rule would have no such effect on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

There is no Catalog of Federal Domestic Assistance number for this final rule.

List of Subjects in 38 CFR Part 14

• Administrative practice and procedure
• Claims
• Courts
• Foreign relations
• Government employees
• Lawyers
• Legal services
• Organization and functions (Government agencies)
• Reporting and recordkeeping requirements
• Surety bonds
• Trusts and trustees
• Veterans, and General Counsel

Approved: December 10, 2009.

John R. Gingrich,

Chief of Staff, Department of Veterans Affairs.

For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 14 as follows:

PART 14—LEGAL SERVICES, GENERAL COUNSEL, AND MISCELLANEOUS CLAIMS

1. Revise the authority citation for part 14 to read as follows:

Authority: 5 U.S.C. 301; 28 U.S.C. 2671-2680; 38 U.S.C. 501(a), 512, 515, 5502, 5901-5905; 28 CFR part 14, appendix to part 14, unless otherwise noted.

2. Amend § 14.600 by:

a. Revising paragraphs (c)(2), (c)(3), and (d)(2);

b. Removing notes (1), (2), and (3).

The revision reads as follows:

§ 14.600

Federal Tort Claims Act—general.

* * * * *

(c) * * *

(2) To the General Counsel, Deputy General Counsel, and Assistant General Counsel (Professional Staff Group I) or those authorized to act for them with respect to any claim; provided that any award, compromise, or settlement in excess of $300,000 shall be effected only with the prior written approval of the Attorney General or his or her designee; provided further that whenever a settlement is effected in an amount in excess of $100,000, a memorandum fully explaining the basis for the action taken shall be sent to the Department of Justice.

(3) To the Regional Counsels and the Deputy Assistant General Counsel (Professional Staff Group I) or those authorized to act for them with respect to any claim, provided that:

(i) Any award, compromise, or settlement in excess of $150,000 but not more than $300,000 shall be effected only with the prior written approval of the General Counsel, Deputy General Counsel, or Assistant General Counsel (Professional Staff Group I); provided further that whenever a settlement is effected in an amount in excess of $100,000, a memorandum fully explaining the basis for the action taken shall be sent to the Department of Justice; and

(ii) Any award where, for any reason, the compromise of a particular claim, as a practical matter, will, or may control the disposition of a related claim in which the amount to be paid may exceed $150,000 shall be effected only with the prior written approval of the General Counsel, Deputy General Counsel, or Assistant General Counsel (Professional Staff Group I); and

(iii) Any award, compromise, or settlement in excess of $300,000 shall be effected only with the prior written approval of the General Counsel, Deputy General Counsel, or Assistant General Counsel (Professional Staff Group I) and with the prior written approval of the Attorney General or his or her designee.

(d) * * *

(2) To the General Counsel, Deputy General Counsel, and Assistant General Counsel (Professional Staff Group I) with respect to any claim; provided that any award, compromise, or settlement in excess of $300,000 shall be effected only with the prior written approval of the Attorney General or his or her designee; provided further that whenever a settlement is effected in an amount in excess of $100,000, a memorandum fully explaining the basis for the action taken shall be sent to the Department of Justice.

(Authority: 28 U.S.C. 1291, 1346, 1402, 2401, 2402, 2411, 2412, 2671-80; 38 U.S.C. 512, 515; 28 CFR part 14, appendix to part 14)