[Federal Register Volume 59, Number 140 (Friday, July 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17815]
[[Page Unknown]]
[Federal Register: July 22, 1994]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
29 CFR Part 15
Regulations Governing Administrative Claims Under the Federal Tort
Claims Act and Related Statutes; Revision; Proposed Rule
DEPARTMENT OF LABOR
Office of the Secretary
29 CFR Part 15
RIN 1290-AA13
Revision of Regulations Governing Administrative Claims Under the
Federal Tort Claims Act and Related Statutes
agency: Department of Labor (DOL), Office of the Secretary.
action: Proposed rule.
-----------------------------------------------------------------------
summary: This document gives notice of the proposed revision of the
DOL's regulations governing administrative claims submitted to DOL
pursuant to the Federal Tort Claims Act (FTCA) and the Military
Personnel and Civilian Employees' Claims Act (MPCECA), and for payment
of claims arising out of the operation of the Job Corps. These
regulations are being revised to reflect previous delegations of
authority to the Counsel for Claims and to the Regional Solicitors and
Associate Regional Solicitors to issue determinations on claims under
the statutes covered by these regulations, to clarify the manner in
which organizational units of the Department provide administrative
assistance to the Office of the Solicitor in regard to claims and
litigation under these statutes and to clarify and provide further
examples of the manner in which MPCECA claims are submitted and
determined. The regulations are also being amended to reflect a change
in statutory authority for payment of claims arising out of operation
of the Job Corps.
dates: Written comments must be received by September 20, 1994.
addresses: Written comments should be submitted, in triplicate, to
Claims Unit, Division of Employee Benefits, Office of the Solicitor,
U.S. Department of Labor, suite S4325, 200 Constitution Avenue NW.,
Washington, DC 20210.
for further information contact: Jeffrey L. Nesvet, Counsel for Claims,
Division of Employee Benefits, Office of the Solicitor, U.S. Department
of Labor, suite S4325, 200 Constitution Avenue NW., Washington, DC
20210, (202) 219-4405.
supplementary information: The Federal Tort Claims Act (FTCA)
surrenders the sovereign immunity of the United States for the
negligent or wrongful act or omission of a Government employee acting
within the scope of his or her employment. The Military Personnel and
Civilian Employees' Claims Act (MPCECA) authorizes payment of claims of
employees of the Government for loss of, or damage to, property
incident to Government service. The Job Training Partnership Act (JTPA)
authorizes payment of claims arising out of the operation of the Job
Corps that are not cognizable under the FTCA. Part 15 of title 29 of
the Code of Federal Regulations currently contains regulations
implementing these three claims authorities.
Subpart A of part 15 sets forth regulations for claims under the
FTCA. It is being revised to reflect previous delegations of authority
to the Counsel for Claims to issue determinations of claims seeking
damages in amounts exceeding $25,000 and to the Regional Solicitors and
Associate Regional Solicitors to issue determinations of claims that
arose within their jurisdictions seeking damages in amounts up to
$25,000. Subpart A is also being amended to provide that all FTCA
claims for amounts up to $25,000 should be filed with the official duty
station of the employee whose act or omission forms the basis of the
claim.
Subpart A is also being amended to clarify and provide specific
directions concerning the manner in which organizational units of the
Department provide assistance to the Office of the Solicitor in regard
to FTCA claims and litigation. A number of non-substantive editorial
changes are also being made to the language of these provisions.
Subpart B of part 15 sets forth regulations for claims under the
MPCECA. It is being revised to reflect previous delegations of
authority to the Counsel for Claims and to the Regional Solicitors and
Associate Regional Solicitors. It is also being revised to reflect an
amendment to the MPCECA increasing the maximum amount payable on a
claim.
Subpart B is being amended to clarify the manner in which claims
are submitted and calculated and to provide further illustrations of
allowable claims and those not allowable under the MPCECA. Thus,
provisions are being added clarifying that both filing of a claim and
determination of a claim must be in writing and that a claim is not
required to contain a demand for a specific sum of money. Each MPCECA
claimant will be required to provide a statement from his or her
immediate supervisor that possession of the property in question was
reasonable, useful or proper and its loss or damage was incident to
service. Additional examples of property for which reimbursement is not
available are being added such as intangible property, real property
and commercial property. A provision is also being added to recognize
that claimants may be reimbursed for any sales tax incurred in
connection with the repair of an item.
Subpart B is being revised to exclude payment for loss of, or
damage to, cellular telephones, fax machines, computers and related
hardware and software, unless the loss is incident to fire, flood,
hurricane, other natural disaster or by theft from authorized quarters
(as limited by Sec. 15.13(c)(1)) or unless it is being shipped as part
of a change in duty station paid for by the Department. Subpart B is
also being revised to provide that an alternative work location at
which an employee is performing duties pursuant to an approved
Flexiplace agreement shall be considered an official duty station for
purposes of this subtitle. The minimum amount of loss necessary to have
a claim allowed is being raised from $10 to $25.
Subpart B is also being amended to provide that at the discretion
of the official involved, a claimant may be required to turn over to
the United States an item alleged to have been damaged beyond
economical repair and to provide that current replacement cost and
depreciated value are to be determined by use of publicly available
adjustment rates or through use of other reasonable methods at the
discretion of the deciding official. A number of non-substantive
editorial changes are also being made to the language of subpart B.
Subpart C is being revised to reflect a change in the statutory
authority for claims arising out of the operation of the Job Corps from
the Comprehensive Training and Employment Act of 1973 to the JTPA. It
also is being revised to reflect previous delegations of authority to
the Regional Solicitors and Associate Regional Solicitors and to
clarify the manner in which a claim is submitted. Subpart C is also
being revised to provide that the determination of a claim shall be
provided to the claimant in writing. A number of non-substantive
editorial changes are also being made to the language of subpart C.
Regulatory Evaluation
This proposal is not considered a significant regulatory action
under Executive Order 12866. In accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), the undersigned certify that this
proposal will not have a significant economic impact on a substantial
number of small entities.
This proposal contains no collection of information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501).
List of Subjects in 29 CFR Part 15
Tort claims, Indemnity payments, Administrative practice and
procedure, Government employees.
For the reasons set out above, DOL proposes to revise 29 CFR part
15 to read as follows:
PART 15--ADMINISTRATIVE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT
AND RELATED STATUTES
Subpart A--Claims Against the Government Under the Federal Tort Claims
Act
Sec.
15.1 Scope and Purpose
15.2 Definitions
15.3 Administrative claim; who may file
15.4 Administrative claim; where to file
15.5 Administrative claim; evidence or information to substantiate
15.6 Administrative action
15.7 Determination of claims
15.8 Referral to Department of Justice
15.9 Final denial of claim
15.10 Action on approved claim
Subpart B--Claims Under the Military Personnel and Civilian Employees'
Claims Act of 1964
15.11 General provisions
15.12 Filing of claims
15.13 Allowable claims
15.14 Restrictions on certain claims
15.15 Unallowable claims
15.16 Claims involving carriers or insurers
15.17 Claims procedures
15.18 Computation of award and finality of settlement
15.19 Attorney fees
15.20 Reconsideration
Subpart C--Claims Arising Out of the Operation of the Job Corps
15.30 Scope and purpose
15.31 Allowable claims
15.32 Claim procedure
Authority: 28 U.S.C. 2672; 28 CFR 14.11; 31 U.S.C. 3721; 29
U.S.C. 1706(b)
Subpart A--Claims Against the Government Under the Federal Tort
Claims Act
Sec. 15.1 Scope and purpose.
(a) The purpose of this subpart is to set forth regulations
relating to claims asserted under the Federal Tort Claims Act, as
amended, accruing on or after January 18, 1967, for money damages
against the United States for injury to or loss of property or personal
injury or death caused by the negligent or wrongful act or omission of
an officer or employee of the Department of Labor while acting within
the scope of his or her office or employment.
(b) This subpart is issued subject to and consistent with
applicable regulations on administrative claims under the Federal Tort
Claims Act issued by the Attorney General (28 CFR part 14).
Sec. 15.2 Definitions.
(a) Department means the Department of Labor.
(b) Organizational unit means the jurisdictional area of each
Assistant Secretary and each office head reporting directly to the
Secretary.
(c) Act means the Federal Tort Claims Act, as amended, (28 U.S.C.
1346(b), 28 U.S.C. 2671, et seq.)
Sec. 15.3 Administrative claim; who may file.
(a) A claim for injury to or loss of property may be presented by
the owner of the property, his or her duly authorized agent, or his or
her legal representative.
(b) A claim for personal injury may be presented by the injured
person, his or her duly authorized agent, or his or her legal
representative.
(c) A claim for death may be presented by the executor or
administrator of the decedant's estate, or by any other person legally
entitled to assert such a claim in accordance with applicable State
law.
(d) A claim for loss wholly compensated by an insurer with the
rights of a subrogee may be presented by the insurer. A claim for loss
partially compensated by an insurer with the rights of a subrogee may
be presented by the insurer or the insured individually, as their
respective interests appear, or jointly. Whenever an insurer presents a
claim asserting the rights of a subrogee, it shall present with its
claim appropriate evidence that it has the rights of a subrogee.
(e) A claim presented by an agent or legal representative shall be
presented in the name of the claimant, be signed by the agent or
representative, show the title or legal capacity of the person signing
and be accompanied by evidence of his or her authority to present a
claim on behalf of the claimant as agent, executor, administrator,
parent, guardian, or legal representative.
Sec. 15.4 Administrative claim; where to file.
(a) For the purposes of this subpart, a claim shall be deemed to
have been presented when the Department receives, at a place designated
in paragraph (b) of this section, a properly executed ``Claim for
Damage, Injury, or Death'' on Standard Form 95, or other written
notification of an incident accompanied by a claim for money damages in
a sum certain for injury to or loss of property or personal injury or
death by reason of the incident.
(b) In any case where the claim seeks damages in excess of $25,000
or which involves an alleged act or omission of an employee of the
Department whose official duty station is in Washington, DC, a claimant
shall mail or deliver his or her claim for money damages for injury to
or loss of property or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the Department while
acting within the scope of his or her office or employment hereunder to
the Counsel for Claims, Office of the Solicitor of Labor, U.S.
Department of Labor, 200 Constitution Avenue, NW., suite S4325,
Washington, DC 20210.
(c) In all other cases, the claimant shall address his or her claim
to the official duty station of the employee whose act or omission
forms the basis of the complaint.
Sec. 15.5 Administrative claim; evidence or information to
substantiate.
(a) Personal injury. In support of a claim for personal injury,
including pain and suffering, the claimant is required to submit the
following evidence or information:
(1) A written report by the attending physician or dentist setting
forth the nature and extent of the injury, nature and extent of
treatment, any degree of temporary or permanent impairment, the
prognosis, period of hospitalization, if any, and any diminished
earning capacity. In addition, the claimant may be required to submit
to a physical or mental examination by a physician employed or
designated by the Department or another Federal agency. A copy of the
report of the examining physician shall be made available to the
claimant upon the claimant's written request: Provided, That he or she
has, upon request, furnished the report referred to in the first
sentence of this subparagraph and has made, or agrees to make available
to the Department, any other physician's report previously or
thereafter made of the physical or mental condition which is the
subject matter of the claim.
(2) Itemized bills for medical, dental and hospital, or any other,
expenses incurred or itemized receipts of payment for such expenses.
(3) If the prognosis reveals the necessity for future treatment, a
statement of expected expenses for such treatment.
(4) If a claim is made for loss of time from employment, a written
statement from his or her employer showing actual time lost from
employment, whether he or she is a full-or part-time employee, and
wages or salary actually lost.
(5) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amount of earnings lost. For
example, income tax returns for several years prior to the injury in
question and the year in which the injury occurred may be used to
indicate or measure lost income; a statement of how much it did or
would cost the claimant to hire someone else to do the same work he or
she was doing at the time of injury might also be used in measuring
lost income.
(6) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the personal injury
or the damages claimed.
(b) Death. In support of a claim based on death, the claimant may
be required to submit the following evidence or information:
(1) An authenticated death certificate or other competent evidence
showing cause of death, date of death, and age of the decedent.
(2) Decedent's employment or occupation at the time of death,
including his or her monthly or yearly salary or earnings (if any), and
the duration of his or her last employment or occupation.
(3) Full name, address, birth date, kinship and marital status of
the decedent's survivors, including identification of those survivors
who were dependent for support upon the decedent at the time of his or
her death.
(4) Degree of support afforded by the decedent to each survivor
dependent upon him or her for support at the time of his or her death.
(5) Decedent's general physical and mental condition before his or
her death.
(6) Itemized bills for medical and burial expenses incurred by
reason of the incident causing death, or itemized receipts of payment
for such expenses.
(7) If damages for pain and suffering prior to death are claimed, a
physician's detailed statement specifying the injuries suffered,
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 evidence or information which may have a bearing on
either the responsibility of the United States for the death or damages
claimed.
(c) Property damages. In support of a claim for injury to or loss
of property, real or personal, the claimant may be required to submit
the following evidence or information with respect to each item of
property:
(1) Proof of ownership.
(2) A detailed statement of the amount claimed.
(3) An itemized receipt of 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) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the injury to or
loss of property or the damages claimed.
Sec. 15.6 Administrative action.
(a) Investigation. When an organizational unit learns of an
incident that reasonably can be expected to result in an allegation of
harm caused to an individual or organization by an alleged negligent
act or omission by an employee of that organizational unit or when it
learns of an administrative claim or of litigation alleging such harm,
it has the responsibility to fully investigate the incident and to take
all actions necessary to preserve all relevant documents and other
evidence. Each organizational unit should institute appropriate
procedures to ensure that notification of such incidents are reported
to the office responsible for ensuring that evidence is preserved and
investigation undertaken.
(b) Notification. Upon receipt of an administrative claim under the
Act or of notice of litigation seeking damages for an alleged negligent
act or omission of an employee of the Department acting within the
scope of his or her employment, the Office of the Solicitor shall
notify the organizational unit responsible for the activity which gave
rise to the claim or litigation and shall provide a copy of the
administrative claim or the complaint filed in the litigation.
(c) Administrative Report. (1) Upon receiving notification of an
administrative claim or litigation, the organizational unit or units
involved in the circumstances of the claim or litigation shall be
responsible for preparing an Administrative Report and forwarding it to
the Office of the Solicitor in a timely manner. The Administrative
Report shall be in the form of a single memorandum in narrative form
with attachments. It should contain all of the following elements,
unless permission is obtained from the Office of the Solicitor to
dispense with a particular element:
(i) A brief explanation of the organization and operation of the
program involved including statutory authority and applicable
regulations;
(ii) A complete description of the events which gave rise to the
claim or litigation, including a specific response to every allegation
in the claim or litigation;
(iii) Any information available regarding the questions of whether
the claimant or plaintiff actually suffered the harm alleged in the
claim or litigation and what individual or organization caused any harm
which appears to have occurred;
(iv) Any information available regarding the damages claimed;
(v) Any policy reasons which the organizational unit wishes to
advance for or against settlement of the claim or litigation; and
(vi) Details of any claims the Department may have against the
claimant or plaintiff, whether or not they appear to be related to the
subject matter of the claim or litigation.
(2) A copy of all documents relevant to the issues involved in the
claim or litigation should be attached to each copy of the
Administrative Report. Original records should not be forwarded to the
Office of the Solicitor unless specifically requested. They should be
preserved, however and remain available for litigation if necessary.
(3) Organizational units should ensure that all Administrative
Reports are either prepared or reviewed by an official of the
organizational unit who was not personally involved in the incident in
question prior to filing of the claim or suit.
(d) Litigation. During the course of any litigation, organizational
units are responsible for providing assistance to the Office of the
Solicitor in responding to discovery requests such as interrogatories
and requests to produce documents, for providing assistance in
analyzing factual and program issues, for providing witnesses for
depositions and trials, and for assistance in producing affidavits and
exhibits for use in the litigation.
Sec. 15.7 Determination of claims.
(a) Authority to consider, ascertain, adjust, determine, compromise
and settle claims. The Counsel for Claims shall have the authority to
consider, ascertain, adjust, determine, compromise and settle claims
pursuant to the Federal Tort Claims Act which involve an alleged
negligent or wrongful act or omission of an employee whose official
duty station is the Department's national office in Washington, DC, or
which exceed $25,000 in amount, or which involve a new precedent, a new
point of law, or a question of policy. Regional Solicitors and the
Associate Regional Solicitors are authorized to consider, ascertain,
adjust, determine, compromise and settle, claims arising in their
respective jurisdictions pursuant to the Federal Tort Claims Act which
do not exceed $25,000 in amount and which do not involve a new
precedent, new point of law, or a question of policy.
(b) Payment. Any award, compromise, or settlement in the amount of
$2,500 or less made pursuant to this section shall be paid by the
Secretary of Labor out of appropriations available to the Department.
Payment of an award, compromise, or settlement in an amount in excess
of $2,500 made pursuant to this subpart shall be made in accordance
with 28 CFR 14.10.
Sec. 15.8 Referral to Department of Justice.
An award, compromise or settlement of a claim under Sec. 2672 title
28, United States Code, and this subpart, in excess of $25,000 may be
effected only with the prior written approval of the Attorney General
or his designee. For the purpose of this subpart, a principal claim and
any derivative or subrogated claim shall be treated as a single claim.
Sec. 15.9 Final denial of claim.
Final denial of an administrative claim under this subpart shall be
in writing, and notification of denial shall be sent to the claimant,
or his or her attorney or legal representative by certified or
registered mail. The notification of final denial shall include a
statement of the reasons for the denial and shall include a statement
that, if the claimant is dissatisfied with the Department's action, he
or she may file suit in an appropriate U.S. District Court not later
than 6 months after the date of mailing of the notification.
Sec. 15.10 Action on approved claim.
(a) Payment. Payment of a claim approved under this subpart is
contingent upon claimant's execution of a ``Voucher for Payment Under
Federal Tort Claims Act,'' Standard Form 1145. When a claimant is
represented by an attorney, the voucher for payment shall designate
both the claimant and his or her attorney as payees, and the check
shall be delivered to the attorney whose address shall appear on the
voucher.
(b) Acceptance. Acceptance by the claimant, or his or her agent or
legal representative, of an award, compromise, or settlement under
Sec. 2672 or Sec. 2677 of title 28, U.S.C., is final and conclusive on
the claimant, his or her agent or legal representative, and any other
person on whose behalf or for whose benefit the claim has been
presented and constitutes a complete release of any claim against the
United States and against any office or employee of the Government
whose act or omission gave rise to the claim by reason of the same
subject matter.
Subpart B--Claims Under the Military Personnel and Civilian
Employees' Claims Act of 1964
Sec. 15.11 General provisions.
(a) Scope and purpose. This subpart applies to all claims filed by
or on behalf of employees of the Department for loss of or damage to
personal property incident to their service with the Department under
the Military Personnel and Civilian Employees' Claims Act of 1964,
(hereinafter referred to as the Act). A claim must be substantiated and
the possession of the property determined to be reasonable, useful or
proper.
(b) Payment. The maximum amount that can be paid for any claim
under the Act is $40,000 and property may be replaced in kind at the
option of the Government.
(c) Policy. The Department is not an insurer and does not
underwrite all personal property losses that an employee may sustain.
Employees are encouraged to carry private insurance to the maximum
extent practicable to avoid losses which may not be recoverable from
the Department. The procedure set forth in this subpart are designed to
enable the claimant to obtain the proper amount of compensation for the
loss or damage. Failure of claimant to comply with thee procedures may
reduce or preclude payment of the claim under this subpart.
Sec. 15.12 Filing of claims.
(a) Who may file. (1) A claim may be made pursuant to this subpart
by an employee or by a spouse or authorized agent, or legal
representative on behalf of the employee. If the employee is deceased,
the claim may be filed by a survivor in the following order of
preference: spouse, children, parent, brother or sister or the
authorized agent or legal representative of such person or persons.
(2) A claim may not be made hereunder by or for the benefit of a
subrogee, assignee, conditional vendor or other third party.
(b) Where to file. A claim hereunder must be presented in writing.
If the claimant's official duty station is at the Department's national
office in Washington, DC, or if the claim is for an amount in excess of
$25,000, the claim should be filed with the Counsel for Claims, Office
of the Solicitor of Labor, U.S. Department of Labor, Suite S4325, 200
Constitution Avenue, NW., Washington, DC 20210. In all other cases the
claimant shall address the claim to the regional or branch office of
the Solicitor of Labor servicing the claimant's official duty station.
(c) Evidence required. The claimant is responsible for
substantiating ownership or possession, the facts surrounding the loss
or damage, and the value of the property. Any claim filed hereunder
must be accompanied by the following:
(1) A written statement, signed by the claimant or his or her
authorized agent, setting forth the circumstances under which the
damage or loss occurred. This statement shall also include:
(i) A description of the type, design, model number or other
identification of the property.
(ii) The date of purchase or acquisition and the original cost of
the property.
(iii) The location of the property when the loss or damage
occurred.
(iv) The value of the property when lost or damaged.
(v) The actual or estimated cost of the repair of any damaged item.
(vi) The purpose of and authority for travel, if the loss or damage
occurred incident to transportation or to the use of a motor vehicle.
(vii) Any and all available information as to the party responsible
for the loss or damage, if such party is someone other than the
claimant, and all information as to insurance contracts, whether held
by the claimant or by the party responsible.
(2) Copies of all available and appropriate documents such as bills
of sale, estimates of repairs, or travel orders. In the case of an
automobile, the claimant must file two estimates of repair or a
certified paid bill showing the damage incurred and the cost of all
parts, labor and other items necessary to the repair of the vehicle or
a statement from an authorized dealer or repair garage showing that the
cost of such repairs exceeds the value of the vehicle.
(3) A copy of the power of attorney or other authorization if the
claim is filed by someone other than the employee.
(4) A statement from the employee's immediate supervisor confirming
that possession of the property was reasonable, useful or proper under
the circumstances and that the damage or loss was incident to service.
(d) Time limitations. A claim under this part may be allowed only
if it is filed in writing within 2 years after accrual of the claim.
For the purpose of this part, a claim accrues at the later of:
(1) the time of the accident or incident causing the loss or
damage,
(2) such time as the loss or damage should have been discovered by
the claimant by the exercise of due diligence or
(3) such time as cause preventing filing no longer exists or as war
or armed conflict ends, whichever is earlier, if a claim otherwise
accrues during war or an armed conflict or has accrued within two years
before war or an armed conflict begins, and for cause shown.
Sec. 15.13 Allowable claims.
(a) A claim may be allowed only if the property involved was being
used incident to service with the Department and:
(1) The damage or loss was not caused wholly or partly by the
negligent or wrongful act or omission of the claimant, his or her
agent, the members of his or her family, or his or her private employee
(the standard to be applied is that of reasonable care under the
circumstances); and
(2) The possession of the property lost or damaged and the quantity
and the quality possessed is determined to have been reasonable, useful
or proper under the circumstances; and
(3) The claim is substantiated by proper and convincing evidence.
(b) Claims which are otherwise allowable under this subpart shall
not be disallowed solely because the claimant was not the legal owner
of the property for which the claim is made.
(c) Subject to the conditions in paragraph (a) of this section and
the other provisions of this subpart, any claim for damage to, or loss,
of personal property incident to service with the Department may be
considered and allowed. For the purpose of subpart B of this part, an
alternative work location at which an employee is performing duties
pursuant to an approved Flexiplace agreement shall be considered an
official duty station. The following are examples of the principal
types of claims which may be allowed, but these examples are not
exclusive and other types of claims may be allowed, unless hereinafter
excluded:
(1) Property or damage in quarters or other authorized places.
Claims may be allowable for damage to, or loss of, property arising
from fire, flood, hurricane, other natural disaster, theft, or other
unusual occurrence, while such property is located at:
(i) Quarters within the 50 States or the District of Columbia that
were assigned to the claimant or otherwise provided in kind by the
United States; or
(ii) Quarters outside the 50 States and the District of Columbia
that were occupied by the claimant, whether or not they were assigned
or otherwise provided in kind by the United States, except when the
claimant is a civilian employee who is a local inhabitant; or
(iii) Any warehouse, office, working area or other place (except
quarters) authorized or apparently authorized for the reception or
storage of property.
(2) Transportation or travel losses. Claims may be allowed for
damage to, or loss of, property incident to transportation or storage
pursuant to order or in connection with travel under orders, including
property in the custody of a carrier, an agent or agency of the
Government, or the claimant.
(3) Mobile homes. Claims may be allowed for damage to, or loss of,
mobile homes and their contents under the provisions of paragraph
(c)(2) of this section. Claims for structural damage to mobile homes,
other than that caused by collision, and damage to contents of mobile
homes resulting from such structural damage, must contain conclusive
evidence that the damage was not caused by structural deficiency of the
mobile home and that it was not overloaded. Claims for damage to, or
loss of, tires mounted on mobile homes will not be allowed, except in
cases of collision, theft or vandalism.
(4) Enemy action or public service. Claims may be allowed for
damage to, or loss of, property as a direct consequence of:
(i) Enemy action or threat thereof, or combat, guerilla,
brigandage, or other belligerent activity, or unjust confiscation by a
foreign power or its nationals.
(ii) Action by the claimant to quiet a civil disturbance or to
alleviate a public disaster.
(iii) Efforts by the claimant to save human life or Government
property.
(5) Property used for the benefit of the Government. Claims may be
allowed for damage to, or loss, of property when used for the benefit
of the Government at the request of, or with the knowledge and consent
of superior authority.
(6) Clothing and accessories. Claims may be allowed for damage to,
or loss, of property when used for damage to or loss of, clothing and
accessories customarily worn on the person, such as eyeglasses, hearing
aids, or dentures.
(7) Expenses incident to repair. Claimants may be reimbursed for
the payment of any sales tax incurred in connection with repairs to an
item. The costs of obtaining estimates of repair (subject to the
limitations set forth in Sec. 15.14(c)) are also allowable.
Sec. 15.14 Restrictions on certain claims.
Claims of the type described in this section are only allowable
subject to the restrictions noted:
(a) Money or currency. Claims may be allowed for loss of money or
currency (which includes coin collections) only when lost incident to
fire, flood, hurricane, other natural disaster, or by theft from
quarters (as limited by Sec. 15.13(c)(1)). In incidents of theft from
quarters, it must be conclusively shown that the quarters were locked
at the time of the theft. Reimbursement for loss of money or currency
is limited to an amount which is determined to have been reasonable for
the claimant to have had in his or her possession at the time of the
loss.
(b) Government property. Claims may only be allowed for property
owned by the United States for which the claimant is financially
responsible to an agency of the Government other than the Department.
(c) Estimate fees. Claims may include fees paid to obtain estimates
of repairs only when it is clear that an estimate could not have been
obtained without paying a fee. In that case, the fee may be allowed
only in an amount determined to be reasonable in relation to the value
of the property or the cost of the repairs.
(d) Automobiles and other motor vehicles. Claims may only be
allowed for damage to, or loss of automobiles and other motor vehicles
if:
(1) Such motor vehicles were required to be used for official
Government business (official Government business, as used here, does
not include travel, or parking incident thereto, between quarters and
office, or use of vehicles for the convenience of the owner. However,
it does include travel, and parking incident thereto, between quarters
and an assigned place of duty specifically authorized by the employee's
supervisor as being more advantageous to the Government,); or
(2) Shipment of such motor vehicles was being furnished or provided
by the Government, subject to the provisions of Sec. 15.16.
(e) Computers and electronics. Claims may be allowed for loss of,
or damage to, cellular phones, fax machines, computers and related
hardware and software only when lost or damaged incident to fire,
flood, hurricane, other natural disaster, or by theft from quarters (as
limited by Sec. 15.13((c)(1)) or unless it is being shipped as a part
of a change of duty station paid for by the Department. In incidents of
theft from quarters, it must be conclusively shown that the quarters
were locked at the time of the theft.
Sec. 15.15 Unallowable claims.
Claims are not allowable for the following:
(a) Unassigned quarters in United States. Property loss or damage
in quarters occupied by the claimant within the 50 States or the
District of Columbia that were not assigned to him or otherwise
provided in kind by the United States.
(b) Business property. Property used for business or profit.
(c) Unserviceable property. Wornout or unserviceable property.
(d) Illegal possession. Property acquired, possessed or transferred
in violation of the law or in violation of applicable regulations or
directives.
(e) Articles of extraordinary value. Valuable articles, such as
cameras, watches, jewelry, furs or other articles of extraordinary
value. This prohibition does not apply to articles in the personal
custody of the claimant or articles properly checked, if reasonable
protection or security measures have been taken by claimant.
(f) Intangible property. Loss of property that has no extrinsic and
marketable value but is merely representative or evidence of value,
such as non-negotiable stock certificates, promissory notes, bonds,
bills of lading, warehouse receipts, insurance policies, baggage
checks, and bank books, is not compensable. Loss of a thesis, or other
similar item, is compensable only to the extent of the out-of-pocket
expenses incurred by the claimant in preparing the item such as the
cost of the paper or other materials. No compensation is authorized for
the time spent by the claimant in its preparation or for supposed
literary value.
(g) Incidental expenses and consequential damages. The Act and this
subpart authorize payment for loss of or damage to personal property
only. Except as provided in Sec. 15.13(c)(7), consequential damages or
other types of loss or incidental expenses (such as loss of use,
interest, carrying charges, cost of lodging or food while awaiting
arrival of shipment, attorney fees, telephone calls, cost of
transporting claimant or family members, inconvenience, time spent in
preparation of claim, or cost of insurance premiums) are not
compensable.
(h) Real property. Damage to real property is not compensable. In
determining whether an item is considered to be an item of personal
property, as opposed to real property, normally, any movable item is
considered personal property even if physically joined to the land.
(i) Commercial property. Articles acquired or held for sale or
disposition by other commercial transactions on more than an occasional
basis, or for use in a private profession or business enterprise.
(j) Commercial storage. Property stored at a commercial facility
for the convenience of the claimant and at his or her expense.
(k) Minimum amount. Loss or damage amounting to less than $25.
Sec. 15.16 Claims involving carriers or insurers.
In the event the property which is the subject of the claim was
lost or damaged while in the possession of a commercial carrier or was
insured, the following procedures will apply:
(a) Whenever property is damaged, lost or destroyed while being
shipped pursuant to authorized travel orders, the owner must file a
written claim for reimbursement with the last commercial carrier known
or believed to have handled the goods, or the carrier known to be in
possession of the property when the damage or loss occurred, according
to the terms of its bill of lading or contract, before submitting a
claim against the Government under this subpart.
(b) Whenever property is damaged, lost or destroyed incident to the
claimant's service and is insured in whole or in part, the claimant
must make demand in writing against the insurer for reimbursement under
the terms and conditions of the insurance coverage, prior to the filing
of the claim against the Government.
(c) Failure to make a demand on a carrier or insurer or to make all
reasonable efforts to protect and prosecute rights available against a
carrier or insurer and to collect the amount recoverable from the
carrier or insurer may result in reducing the amount recoverable from
the Government by the maximum amount which would have been recoverable
from the carrier or insurer had the claim been timely or diligently
prosecuted. However, no deduction will be made where the circumstances
of the claimant's service preclude reasonable filing of such a claim or
diligent prosecution, or the evidence indicates a demand was
impracticable or would have been unavailing.
(d) Following the submission of the claim against the carrier or
insurer, the claimant may immediately submit his claim against the
Government in accordance with the provisions of this subpart, without
waiting until either final approval or denial of the claim is made by
the carrier or insurer.
(1) Upon submitting his or her claim, the claimant shall certify in
his claim that he or she has or has not gained any recovery from a
carrier or insurer, and enclose all correspondence pertinent thereto.
(2) If final action has not been taken by the carrier or insurer on
the claim, the claimant shall immediately notify them to address all
correspondence in regard to the claim to the appropriate Office of the
Solicitor of Labor.
(3) The claimant shall advise the appropriate Office of the
Solicitor of any action taken by the carrier or insurer on the claim
and, upon request, shall furnish all correspondence, documents, and
other evidence pertinent to the matter.
(e) The claimant shall assign to the United States, to the extent
of any payment on the claim accepted by him or her, all rights, title
and interest in any claim he or she may have against any carrier,
insurer, or other party arising out of the incident on which the claim
against the United States is based. After payment of the claim by the
United States, the claimant shall, upon receipt of any payment from a
carrier or insurer, pay the proceeds to the United States to the extent
of the payment received by him or her from the United States.
(f) Where a claimant recovers for the loss from the carrier or
insurer before his or her claim under this subpart is settled, the
amount or recovery shall be applied to the claim as follows:
(1) When the amount recovered from a carrier, insurer, or other
third party is greater than or equal to the claimant's total loss as
determined under this part, no compensation is allowable under this
subpart.
(2) When the amount recovered is less than such total loss, the
allowable amount is determined by deducting the recovery from the
amount of such total loss.
(3) For this purpose, the claimant's total loss is to be determined
without regard to the maximum payment limitations set forth in
Sec. 15.11.However, if the resulting amount, after making this
deduction, exceeds the maximum payment limitations, the claimant shall
be allowed only the maximum amount set forth in Sec. 15.11.
Sec. 15.17 Claims procedures.
(a) Award. The Counsel for Claims, the Regional Solicitors, and the
Associate Regional Solicitors are authorized to consider, ascertain,
adjust, determine, compromise and settle claims filed under this
subpart that arose within their respective jurisdictions, except that
any claim for an amount in excess of $25,000 shall fall within the
exclusive jurisdiction of the Counsel for Claims.
(b) Form of claim. Any writing received by the Office of the
Solicitor within the time limits set forth in Sec. 15.12(d) will be
accepted and considered a claim under the Act if it constitutes a
demand for compensation from the Department. A demand is not required
to be for a specific sum of money.
(c) Notification. The determination upon the claim shall be
provided to the claimant in writing by the deciding official.
Sec. 15.18 Computation of award and finality of settlement.
(a) The amount allowable for damage to or loss of any item of
property may not exceed the lowest of
(1) The amount requested by the claimant for the item as a result
of its loss, damage or the cost of its repair,
(2) The actual or estimated cost of its repair, or
(3) The actual value at the time of its loss, damage, or
destruction. The actual value is determined by using the current
replacement cost or the depreciated value of the item since its
acquisition, whichever is lower, less any salvage value of the item in
question.
(b) Depreciation in value is determined by considering the type of
article involved, its cost, its condition when damaged or lost, and the
time elapsed between the date of acquisition and the date of damage or
loss.
(c) Current replacement cost and depreciated value are determined
by use of publicly available adjustment rates or through use of other
reasonable methods at the discretion of the official authorized to
issue a determination upon the claim in question.
(d) Replacement of lost or damaged property may be made in kind
wherever appropriate.
(e) At the discretion of the official authorized to issue the
determination upon the claim in question, a claimant may be required to
turn over an item alleged to have been damaged beyond economical repair
to the United States, in which case no deduction for salvage value will
be made in the calculation of actual value.
(f) Notwithstanding any other provisions of law, settlement of
claims under the Act are final and conclusive.
Sec. 15.19 Attorney fees.
No more than 10 per centum of the amount paid in settlement of each
individual claim submitted and settled under this subpart shall be paid
or delivered to or received by any agent or attorney on account of
services rendered in connection with that claim.
Sec. 15.20 Reconsideration.
(a) Deciding official. While there is no appeal from the decision
of the deciding official in regard to claims under the Act, the
deciding official may always reconsider his or her determination of a
claim.
(b) Claimant. A claimant may request reconsideration from the
deciding official by directing a written request for reconsideration to
the deciding official within 180 days of the date of the original
determination. The claimant must clearly state the factual or legal
basis upon which he or she rests the request for a more favorable
determination.
(c) Notification. The determination upon the reconsideration will
be provided to the claimant in writing by the deciding official.
Subpart C--Claims Arising Out of the Operation of the Job Corps
Sec. 15.30 Scope and purpose.
(a) The purpose of this subpart is to set forth regulations
relating to claims for damage to persons or property arising out of the
operation of Job Corps which the Secretary of Labor finds to be a
proper charge against the United States but which are not cognizable
under the Federal Tort Claims Act.
(b) This subpart further amplifies the regulatory provisions set
forth in 20 CFR 638.526(b) regarding such claims.
Sec. 15.31 Allowable claims.
(a)(1) A claim for damage to persons or property arising out of an
act or omission of a student enrolled in the Job Corps may be
considered pursuant to Sec. 436(b) of the Job Training Partnership Act
(29 U.S.C. 1706(b)):
(i) If the act or omission which gave rise to the claim took place
at the center to which the student involved was assigned, or
(ii) If the student involved was not within the geographical limits
of his hometown and was within 100 miles of the center to which he or
she was assigned, or while he or she was on authorized travel to or
from the center.
(2) The claim may be paid if the deciding official, in his or her
discretion, finds the claim to be a proper charge against the United
States resulting from an act or omission of a student enrolled in the
Job Corps.
(b) A claim for damage to person or property hereunder may not be
paid if the claim is cognizable under the Federal Tort Claims Act (28
U.S.C. 2677).
(c) A claim for damage to person or property may be adjusted and
settled hereunder in an amount not exceeding $1500.
Sec. 15.32 Claim procedures.
(a) Claim. A claim under this subpart must be in writing and signed
by the claimant or by an authorized representative. It must be received
by the Office of the Solicitor within two years of the date upon which
the claim accrued.
(b) Award. The Regional Solicitors and Associate Regional
Solicitors are authorized to consider, ascertain, adjust, determine,
compromise and settle claims filed under this subpart that arose within
their respective jurisdictions.
(c) Notification. The determination upon the claim shall be
provided to the claimant in writing by the deciding official.
(d) Reconsideration. Reconsideration of a determination under this
subpart shall be available pursuant to the procedures and limitations
set forth in Sec. 15.20.
Signed at Washington, DC, this 14th day of July 1994.
Robert B. Reich,
Secretary of Labor.
[FR Doc. 94-17815 Filed 7-21-94; 8:45 am]
BILLING CODE 4510-23-M
