[Federal Register Volume 60, Number 213 (Friday, November 3, 1995)]
[Proposed Rules]
[Pages 55808-55811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26669]
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SMALL BUSINESS ADMINISTRATION
13 CFR Part 114
Policies of General Application
AGENCY: Small Business Administration.
ACTION: Proposed rule.
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SUMMARY: In response to President Clinton's regulatory review
directive, the Small Business Administration has completed a page-by-
page and line-by-line review of its regulations. As a result, SBA is
proposing to clarify and streamline its regulations, revising or
eliminating any duplicative, outdated, inconsistent or confusing
provisions. This proposed rule would reorganize the entire Part 114
covering administrative claims under the Federal Tort Claims Act to
make it more clear and easier to use. It would also amend the Part to
streamline the review and adjustment of claims and provide for the use
of alternative dispute resolution in appropriate cases.
DATES: Written comments must be submitted on or before December 4,
1995.
ADDRESSES: Written comments may be sent to David R. Kohler, Regulatory
Reform Team Leader (114), Small Business Administration, 409 3rd Street
S.W., Suite 13, Washington, D.C. 20416.
FOR FURTHER INFORMATION CONTACT: Jeff Lane, Office of General Counsel,
at (202) 205-6879.
SUPPLEMENTARY INFORMATION: Part 114 of chapter 1, 13 CFR contains
policies governing the presentment, review and handling of
administrative claims brought against the Federal Government for money
damages for injuries or death arising from the negligent or wrongful
act or omission of any employee of the Small Business Administration.
The rule would reorganize the entire Part 114 to make it more clear and
easier to use and amend it to create a more
[[Page 55809]]
efficient administrative process. It would eliminate from the process
the various boards of survey that now investigate and review claims,
and give Field District Counsel authority to review and adjust claims
of $5,000 or less and use alternative dispute resolution in appropriate
cases. (Boards of Survey would retain all other existing
responsibilities.)
Specifically, the rule would amend:
1. Section 114.100 by deleting definitions of the various boards of
survey that would be eliminated under the proposed rule.
2. Section 114.102, which sets forth the rule for when and where a
claim should be presented, by clarifying that claims must be presented
at the SBA office nearest to where the incident occurred and within the
same state in which the incident occurred. The proposed section also
specifies the statutory deadline.
The rule would reorganize:
1. Section 114.104 relating to SBA's investigatory powers under new
subsection 114.105(a).
2. Section 114.105, which states what evidence and information
claims should include, as section 114.104.
3. Sections 114.106, 114.106-1, 114.107 and 114.108 relating to
SBA's procedure for investigating and processing claims under new
sections 114.105 through 114.109. These proposed sections also
eliminate the boards of surveys and create a streamlined process for
review. Field Counsel would have authority to review and adjust claims
of $5,000 or less and to use alternative dispute resolution mechanisms
in appropriate cases. The proposed section specifies the General
Counsel as the Administrator's designee for purposes of determining
claims in excess of $5,000. The rule would still require SBA to seek
written consent from the Department of Justice before it approves
claims in excess of $25,000 and to consult with the Department of
Justice in certain other circumstances.
4. Section 114.109 relating to SBA's authority to ask another
Federal agency to conduct physical exams of claimants under proposed
section 114.105, which describes generally SBA's investigatory
authority.
5. Section 114.110 relating to SBA's denial of claims as new
section 114.109. The proposed section informs claimants of their right
to sue SBA not later than six months after SBA mails the notification
of denial.
6. Section 114.111 relating to the approval of claims as new
section 114.108.
7. Section 114.112 relating to indemnification and representation
of SBA employees as new section 114.110. It would add a paragraph--
Sec. 114.110(a)(3)--that specifically states SBA may pay for, or
request that the Department of Justice provide, representation for SBA
employees.
8. Section 114.113 relating to attorney-client privilege as new
section 114.111.
Compliance With Executive Orders 12612, 12778, and 12866, the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and the Paperwork
Reduction Act (44 U.S.C. Ch. 35)
SBA certifies that this proposed rule involves internal
administrative procedures and would not be considered a significant
rule within the meaning of Executive Order 12866 and would not have a
significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq. It is not likely to have an annual economic effect of $100 million
or more, result in a major increase in costs or prices, or have a
significant adverse effect on competition or the United States economy.
For purposes of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA
certifies that this proposed rule, if adopted in final form, would
contain no new reporting or record keeping requirements.
For purposes of Executive Order 12612, SBA certifies that this rule
would not have any federalism implications warranting the preparation
of a Federalism Assessment.
For purposes of Executive Order 12778, SBA certifies that this rule
is drafted, to the extent practicable, in accordance with the standards
set forth in Section 2 of that Order.
List of Subjects in 13 CFR Part 114
Claims.
Accordingly, pursuant to the authority set forth in sections 5
(b)(1) and (b)(6) of the Small Business Act, 15 U.S.C. 634 (b)(1) and
(b)(6), 28 U.S.C. 2672, and 28 CFR 14.11 (31 FR 16616), SBA hereby
proposes to revise part 114 of Title 13, Code of Federal Regulations
(CFR), to read as follows:
PART 114--ADMINISTRATIVE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT
AND REPRESENTATION AND INDEMNIFICATION OF SBA EMPLOYEES
Subpart A--Administrative Tort Claims
Sec.
Sec. 114.100 Definitions.
Sec. 114.101 What do these regulations cover?
Sec. 114.102 When and where do I present a claim?
Sec. 114.103 Who may file a claim?
Sec. 114.104 What evidence and information may SBA require relating
to my claim?
Sec. 114.105 Who investigates and considers my claim?
Sec. 114.106 What if my claim exceeds $5,000?
Sec. 114.107 What if my claim exceeds $25,000 or has other special
features?
Sec. 114.108 What if my claim is approved?
Sec. 114.109 What if my claim is denied?
Subpart B--Representation and Indemnification of SBA Employees
Sec. 114.110 What is SBA's policy with respect to indemnifying and
providing legal representation to SBA employees?
Sec. 114.111 Does the attorney-client privilege apply when SBA
employees are represented by the Government?
Authority: 15 U.S.C. 634 (b)(1), (b)(6); 28 U.S.C. 2672; 28 CFR
14.11.
Subpart A--Administrative Tort Claims
Sec. 114.100 Definitions.
As used throughout this part 114, ``date of accrual'' means the
date you know or reasonably should have known of your injury. The date
of accrual will depend on the facts of each case. ``Site'' means the
geographic location where the incident giving rise to your claim
occurred.
Sec. 114.101 What do these regulations cover?
This part applies only to monetary claims you assert under the
Federal Tort Claims Act, 28 U.S.C. 2671, et. seq., for injury to or
loss of property, personal injury, or death arising from the negligent
or wrongful act or omission of any employee of the Small Business
Administration (SBA) while acting within the scope of his or her
employment.
Sec. 114.102 When and where do I present a claim?
You must present your claim within two years of the date of accrual
at the SBA office nearest to the site and within the same state as the
site. You must use Standard Form 95 (which may be obtained from SBA) or
give other written notice of your claim, stating the specific amount of
your alleged damages and providing enough information to enable SBA to
investigate your claim. Your claim will be considered presented when
SBA receives this information.
Sec. 114.103 Who may file a claim?
(a) If a claim is based on factors listed in the first column, then
it may be presented by persons listed in the second column.
[[Page 55810]]
Claim factors Claim presenters
Injury to or loss of property............. the owner of the property,
his or her duly authorized
agent, or legal
representative.
Personal injury........................... the injured person, his or
her duly authorized agent,
or legal representative.
Death..................................... the executor or
administrator of the
decedent's estate, or any
other person entitled to
assert the claim under
applicable state law.
Loss wholly compensated by an insurer with the parties individually as
rights as a subrogee. their interests appear, or
jointly.
(b) An agent or legal representative may present your claim in your
name, but must sign the claim, state his or her title or legal
capacity, and include documentation of authority to present the claim
on your behalf.
Sec. 114.104 What evidence and information may SBA require relating to
my claim?
(a) For a claim based on injury to or loss of property:
(1) Proof you own the property.
(2) A specific statement of the damage you claim with respect to
each item of property.
(3) Itemized receipts for payment for necessary repairs or itemized
written estimates of the cost of such repairs.
(4) A statement listing date of purchase, purchase price and
salvage value, where repair is not economical.
(5) Full information about potential insurance coverage and any
insurance claims or payments relating to your claim.
(6) Any other information that may be relevant to the government's
alleged liability or the damages you claim.
(b) For a claim based on personal injury, including pain and
suffering:
(1) A written report from your health care provider stating the
nature and extent of your injury and treatment, the degree of your
temporary or permanent disability, your prognosis, period of
hospitalization, and any diminished earning capacity.
(2) A written report following a physical, dental or mental
examination of you by a physician employed by SBA or another Federal
Agency. If you want a copy of this report, you must request it in
writing, furnish SBA with the written report of your health care
provider, if SBA requests it, and make or agree to make available to
SBA any other medical reports relevant to your claim.
(3) Itemized bills for medical, dental and hospital expenses you
have incurred, or itemized receipts of payment for these expenses.
(4) Your health care provider's written statement of the expected
expenses related to any necessary future treatment.
(5) A statement from your employer showing actual time lost from
employment, whether you are a full or part-time employee, and the wages
or salary you actually lost.
(6) Documentary evidence showing the amount of earnings you
actually lost if you are self-employed.
(7) Information about the existence of insurance coverage and any
insurance claims or payments relating to the claim in question.
(8) Any other information that may be relevant to the government's
alleged liability or the damages you claim.
(c) For a claim based on death:
(1) An authenticated death certificate or other competent evidence
showing cause of death, date of death, and age of the decedent.
(2) Evidence of decedent's employment or occupation at the time of
death, including monthly or yearly salary or earnings, and the duration
of such employment or occupation.
(3) Full names, addresses, birth dates, kinship, and marital status
of the decedent's survivors, including identification of those
survivors who were dependent upon the decedent for support at the time
of his or her death.
(4) Evidence of the support provided by the decedent to each
dependent survivor at the time of his or her death.
(5) A summary of the decedent's general physical and mental
condition before death.
(6) Itemized bills or receipts for payments for medical and burial
expenses.
(7) For pain and suffering damage claims, a physician's detailed
statement specifying the injuries suffered, the duration of pain and
suffering, any drugs administered for pain, and the decedent's physical
condition in the interval between injury and death.
(8) Any other information that may be relevant to the government's
alleged liability or the damages claimed.
Sec. 114.105 Who investigates and considers my claim?
(a) SBA may investigate, or ask another Federal agency to
investigate, your claim. SBA also may request any Federal agency to
conduct a physical examination of you and provide a report to SBA. SBA
will reimburse the Federal agency for the costs of that examination
when authorized or required by statute or regulation.
(b) In those cases in which SBA investigates your claim, the SBA
District Counsel with jurisdiction over the site will conduct an
investigation and make recommendations or a determination with respect
to your claim. The District Counsel may negotiate with you and is
authorized to use alternative dispute resolution mechanisms when they
may promote the prompt, fair and efficient resolution of your claim.
(c) The District Counsel may approve or deny an award, compromise,
or settlement of any claim for $5,000 or less. If your claim is for
$5,000 or less, the District Counsel may deny the claim, or may
recommend approval, compromise, or settlement of the claim to a Senior
Area Counsel who may take final action. The District Counsel first must
refer the claim to SBA's General Counsel for review if SBA should
consult with the Department of Justice before approving the claim, as
required under Sec. 114.107.
Sec. 114.106 What if my claim exceeds $5,000?
The District Counsel must review and investigate your claim and
forward it with a report and recommendation to the General Counsel, who
may approve or deny an award, compromise, or settlement of claims in
excess of $5,000, but not exceeding $25,000. The General Counsel will
handle claims in excess of $25,000 as required by Sec. 114.107.
Sec. 114.107 What if my claim exceeds $25,000 or has other special
features?
(a) The U.S. Attorney General (or designee) must approve in writing
any award, compromise, or settlement of a claim in excess of $25,000.
For this purpose, a principal claim and any derivative or subrogated
claim are considered a single claim.
(b) SBA must consult with the Department of Justice before
adjusting, determining, compromising, or settling a claim whenever the
General Counsel determines:
(1) The claim involves a new precedent or a new point of law; or
(2) The claim involves or may involve a question of policy; or
(3) The United States is or may be entitled to indemnity or
contribution from a third party and SBA is unable to adjust the third
party claim; or
(4) Approval of a claim, as a practical matter, will or may control
the disposition of a related claim in which the amount to be paid may
exceed $25,000.
(c) SBA must consult with the Department of Justice before
adjusting,
[[Page 55811]]
determining, compromising, or settling a claim whenever SBA learns that
the United States, or any of its employees, agents, or cost-plus
contractors, is involved in litigation based on a claim arising out of
the same incident or transaction.
(d) SBA, acting through its General Counsel, must make any
referrals to the Department of Justice for approval or consultation by
transmitting them in writing to the Assistant Attorney General, Civil
Division.
(1) The referral must contain a short and concise statement of the
facts and the reason for the request or referral, copies of the
relevant portions of the claim file, and SBA's views and
recommendations.
(2) SBA may make this referral at any time after a claim is
presented.
Sec. 114.108 What if my claim is approved?
SBA will notify you in writing if it approves your claim. The
District Counsel will forward to you or your agent or legal
representative the forms necessary to indicate satisfaction of your
claim and your acceptance of the payment. Acceptance by you, your agent
or your legal representative, of any award, compromise or settlement of
your claim is final and conclusive under the Federal Tort Claims Act.
It binds you, your agent or your legal representative, and any other
person on whose behalf or for whose benefit the claim was presented. It
also constitutes a complete release of your claim against the United
States and its employees. If you are represented by counsel, SBA will
designate you and your counsel as joint payees and will deliver the
check to your counsel. Payment is contingent upon the waiver of your
claim and is subject to the availability of appropriated funds.
Sec. 114.109 What if my claim is denied?
SBA will notify you or your agent or legal representative in
writing by certified or registered mail if it denies your claim. You
have a right to file suit in an appropriate U.S. District Court not
later than six months after the date the notification was mailed.
Subpart B--Representation And Indemnification of SBA Employees
Sec. 114.110 What is SBA's policy with respect to indemnifying and
providing legal representation to SBA employees?
(a) If an SBA employee engages in conduct, within the scope of his
or her employment, which gives rise to a claim, and the SBA
Administrator (or designee) determines that any of the following
actions relating to the claim are in SBA's interest, SBA may:
(1) Indemnify the employee after a verdict, judgment, or other
monetary award is rendered personally against the employee in any civil
suit in state or federal court or any arbitration proceeding.
(2) Settle or compromise the claim.
(3) Pay for, or request that the Department of Justice provide,
legal representation to the employee once personally named in such a
suit.
(b) If you are an SBA employee, you may ask SBA to settle or
compromise your claim, provide you with legal representation, or
provide you with indemnification for a verdict, judgment or award
entered against you in a suit. To do so, you must submit a timely,
written request to the General Counsel, with appropriate documentation,
including copies of any pleadings, verdict, judgment, award, or
settlement proposal. The General Counsel will decide all requests for
representation or settlement, and will forward to the Administrator,
with the accompanying documentation and a recommendation, any requests
for indemnification.
(c) Any payments by SBA under this section will be contingent upon
the availability of appropriated funds.
Sec. 114.111 Does the attorney-client privilege apply when SBA
employees are represented by the Government?
When attorneys employed by SBA participate in any process in which
SBA seeks to determine whether SBA should request the Department of
Justice to provide representation to an SBA employee sued, subpoenaed,
or charged in his or her individual capacity, or whether attorneys
employed by SBA should provide representational assistance for such an
employee, those attorneys undertake a full and traditional attorney-
client relationship with the employee with respect to the attorney-
client privilege. If representation is authorized, SBA attorneys who
assist in the representation of an SBA employee also undertake a full
and traditional attorney-client relationship with the employee with
respect to the attorney-client privilege. Unless authorized by the
employee, the attorney must not disclose to anyone other than attorneys
also responsible for the employee's representation adverse information
communicated to the attorney by the client-employee during the course
of the attorney-client relationship. The attorney-client privilege will
continue with respect to that information whether or not representation
is provided, and even if the employee's representation is denied or
discontinued.
Dated: October 19, 1995.
Philip Lader,
Administrator.
[FR Doc. 95-26669 Filed 11-2-95; 8:45 am]
BILLING CODE 8025-01-P
