Revision of Regulations Governing Administrative Claims Under the Federal Tort Claims Act and Related Statutes

Federal RegisterJul 22, 1994

Ask Donna

What actually matters in this document.

Text

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

(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.

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.

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.

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.

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).

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.

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.