[Federal Register Volume 77, Number 72 (Friday, April 13, 2012)]
[Rules and Regulations]
[Pages 22204-22215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8741]
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DEPARTMENT OF LABOR
Office of the Secretary
29 CFR Part 15
Employment and Training Administration
20 CFR Parts 638 and 670
RIN 1290-AA25
Administrative Claims Under the Federal Tort Claims Act and
Related Statutes
AGENCY: Office of the Secretary, Employment and Training
Administration, Labor.
ACTION: Direct final rule.
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SUMMARY: This amendment revises the Department of Labor's (DOL)
regulations governing administrative claims submitted to DOL pursuant
to the Federal Tort Claims Act (FTCA), the Military Personnel and
Civilian Employees' Claims Act (MPCECA), and for payment of claims
arising out of the operation of the Job Corps. The regulations
governing such claims were last revised in 1995. MPCECA has since been
amended to allow payment of up to $100,000 if the claim arose from an
emergency or extraordinary circumstance. Further, the implementing
authority for the Job Corps was changed to the Workforce Investment Act
(WIA) since the last time the regulations were updated. These
regulations are being amended to reflect those changes, improve the
clarity and ease of use of the regulations, and to harmonize the
regulations governing these claims between those regulations in titles
20 and 29 of the CFR, which includes deleting the references to these
claims in 20 CFR part 638 as these revisions have rendered those
sections unnecessary. Finally, the regulations in title 20 have also
been updated to reflect the recently revised regulations regarding
claims of Job Corps students under the Federal Employees' Compensation
Act (FECA).
DATES: This direct final rule is effective July 12, 2012 without
further action, unless adverse comment is received by June 12, 2012. If
an adverse comment is received, DOL will publish a timely withdrawal of
the rule in the Federal Register.
ADDRESSES: You may submit comments on the direct final rule, identified
by Regulatory Information Number (RIN) 1290-AA25, by one of the
following methods: Federal e-Rulemaking Portal: The Internet address to
submit comments on the rule is http://www.regulations.gov. Follow the
Web site instructions for submitting comments.
Mail: Submit written comments to Catherine P. Carter, Counsel for
Claims and Compensation, Office of the Solicitor, U.S. Department of
Labor, Room S-4325, 200 Constitution Avenue NW., Washington, DC 20210.
Because of security measures, mail directed to Washington, DC is
sometimes delayed. We will only consider comments postmarked by the
U.S. Postal Service or other delivery service on or before the deadline
for comments.
Instructions: All comments must include the RIN 1290-AA25 for this
rulemaking. Receipt of any comments, whether by mail or Internet, will
not be acknowledged. Because DOL continues to experience delays in
receiving postal mail in the Washington, DC area, commenters are
encouraged to submit any comments by mail early.
Comments on the direct final rule will be available for public
inspection during normal business hours at the address listed above for
mailed comments. Persons who need assistance to review the comments
will be provided with appropriate aids such as readers or print
magnifiers. Copies of this direct final rule may be obtained in
alternative formats (e.g., large print, audiotape or disk) upon
request. To schedule an appointment to review the comments and/or to
obtain the direct final rule in an alternative format, contact DOL at
202-693-5320 (this is not a toll-free number).
FOR FURTHER INFORMATION CONTACT: Catherine P. Carter, Counsel for
Claims and Compensation, Office of the Solicitor, U.S. Department of
Labor, Room S-4325, 200 Constitution Avenue NW., Washington, DC 20210,
Telephone: 202-693-5320 (this is not a toll-free number).
Individuals with hearing or speech impairments may access this
telephone number via TTY by calling the toll-free Federal Information
Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Direct Final Rule and Concurrent, Identical Proposed Rule
Since this rule is not controversial and primarily concerns agency
procedures, we have determined that the subject of this rulemaking is
suitable for a direct final rule. No significant adverse comments are
anticipated. However, concurrent with this direct final rule, a
separate, identical proposed rule is published in today's issue of the
Federal Register. The duplicate proposed rule will expedite rulemaking
in the event we receive significant adverse comments and we withdraw
this direct final rule. All interested parties should comment at this
time because we will not initiate an additional comment period. If no
significant adverse comments to the accompanying proposed rule are
received on or before June 12, 2012, this direct final rule will become
effective July 12, 2012 without further notice.
If significant adverse comments are received, we will publish a
timely notice in the Federal Register withdrawing this direct final
rule, and will then proceed with the rulemaking by addressing the
comments and developing a final rule from the proposed rule published
elsewhere in today's issue of the Federal Register. For purposes of
withdrawing this direct final rule, a significant adverse comment is
one that explains (1) why the direct final rule is inappropriate,
including challenges to the rule's underlying premise or approach; or
(2) why the direct final rule will be ineffective or unacceptable
without a change. In determining whether a significant adverse comment
[[Page 22205]]
necessitates withdrawal of this direct final rule, we will consider
whether the comment raises an issue serious enough to warrant a
substantive response through the notice and comment process. A comment
recommending an addition to the rule will not be considered significant
and adverse unless the comment explains how this rule would be
ineffective without the addition.
II. Background
The 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 MPCECA authorizes
payment of claims of employees of the Government for loss of, or damage
to, property incident to Government service. The WIA provides that Job
Corps students are Federal employees for purposes of claims under the
FTCA and authorizes payment of claims arising out of the operation of
the Job Corps that are not cognizable under the FTCA. Parts 638 and 670
of title 20 and part 15 of title 29 of the Code of Federal Regulations
currently contain regulations implementing these three claims
authorities.
III. Overview of the Regulations
The regulations reflect statutory changes and are otherwise largely
unchanged. The majority of changes were made to change the format of 29
CFR part 15 to question and answer format, and to improve the structure
and readability of the regulations in both 20 CFR part 670 and 29 CFR
part 15. Furthermore, the numbering of sections in 29 CFR part 15 was
changed to improve structure and to allow for splitting of current
sections for improved clarity and readability.
20 CFR Part 638
Sections 638.526 Through 638.527
As the changes made to 20 CFR part 670 and 29 CFR part 15 have
rendered these sections unnecessary, the regulations delete these
sections.
20 CFR Part 670
Sections 670.900 Through 670.905
These sections were changed to direct possible claimants to 29 CFR
part 15, which provides the actual regulations that govern such claims.
This change was made to reduce the possibility of conflicting
regulations and to clarify which regulations provide the decision
making authority for such claims.
Sections 670.910 Through 670.930
These sections provide information for Job Corps students regarding
their rights under the FECA. These sections were similarly amended to
provide cross-references to the regulations governing claims under the
FECA, while still providing the statutory information regarding the
status of such students under the WIA. Sections no longer necessary as
a result were removed.
29 CFR Part 15
As discussed above, 29 CFR part 15 was reorganized and the
regulations themselves were modified to change to a question and answer
format to promote clarity and readability of these regulations. As part
of the reorganization, a new subpart A was added to this part, with the
other subparts redesignated accordingly.
Subpart A
Subpart A of part 15 is a new subpart. It includes introductory
information, such as describing the contents of the other subparts and
definitions that apply to all subparts in this part.
Subpart B
Subpart B is largely subpart A of the old regulations. The text in
this subpart is largely unchanged, although some of the old regulations
have been broken out into new sections in order to promote clarity and
use of a question and answer format. Changes in these sections are
described below.
Section 15.102 is a new section that describes the filing of a
claim by an insurance company and compiles the requirements into one
section. The language of this section has also been rewritten for
clarity.
Section 15.103 is a new section that addresses legal
representatives and compiles them into one section. The statutory
limitation on representative fees has also been included for ease of
use.
Section 15.104 (formerly Sec. 15.4) has been amended to clarify
that the $25,000 jurisdictional limit applies to the aggregate of
claims resulting from one incident. Furthermore, this section has been
amended to codify the official duty stations' current practice of
forwarding the FTCA claims to the Regional Offices of the Office of the
Solicitor with the documentation they have regarding that claim.
Section 15.106 (formerly Sec. 15.6) has been amended to include a
requirement that all organizational units within the Department appoint
an FTCA contact, unless that requirement for a contact is waived. For
example, a small entity within the Office of the Secretary for which
claims are rarely received would not be required to designate an FTCA
contact. This section has also been amended to require the FTCA contact
to submit an administrative report to the deciding official within 30
days.
Section 15.108 (formerly Sec. 15.7) has been amended to clarify
that the $25,000 jurisdictional limit applies to the aggregate of
claims resulting from one incident.
Section 15.111 (formerly Sec. 15.10) has been amended to clarify
that the $25,000 jurisdictional limit applies to the aggregate of
claims resulting from one incident and to update the forms used by the
Department of Justice in settling and paying FTCA claims.
Subpart C
As above, subpart C is largely a redesignated version of former
subpart B. The text in this subpart is largely unchanged, although some
of the old regulations have been broken out into new sections in order
to promote clarity. Changes in these sections are described below.
Section 15.202 (formerly a subsection of Sec. 15.21) has been
amended to include a reference to a sample claim for MPCECA claims and
to note that the SF-95 form should not be used to file a claim under
this subpart. This section has also been amended to allow the deciding
official to waive the requirement of submitting two estimates of repair
where unnecessary, lessening the burden on claimants in submitting
these claims.
Section 15.206 is a new section that covers MPCECA claims made for
damage to property at Telework locations and at residences.
Section 15.207 (formerly Sec. 15.22) has been amended to include
language allowing claims for loss or damage incident to service to
cellular phones, personal data assistants and similar communication and
electronic devices.
Section 15.210 has been amended to allow the deciding official to
waive the requirement of filing a claim under the employee's insurance
policy where such a claim is impracticable or inequitable.
Subpart D
As above, subpart D is largely a redesignated version of former
subpart C. This subpart, however, has been reorganized to clearly
delineate the types of claims that are covered by this subpart. Changes
in these sections are described below.
Section 15.300 is a new section that has been drafted to
specifically categorize the types of claims covered by this subpart.
This section also clearly indicates that this includes claims
[[Page 22206]]
involving Job Corps Centers run by other Federal agencies.
Section 15.301 (part of former Sec. 15.42) has been amended to
clearly delineate which Department official has responsibility for
which type of claim and for what amounts. It more clearly describes and
explains the procedures for processing claims of loss or damage to
persons or personal property of Job Corps students than the current
regulations. In particular, it provides that the Regional Solicitor is
responsible for such claims in excess of $300 and the Job Corps
Regional Director is responsible for such claims of $300 or less.
Section 15.302 is a new section that has been added to distinguish
what procedures apply to the different types of claims covered by this
subpart.
Section 15.303 (part of former Sec. 15.42) has been amended to
change the process as to where claims under this subpart are initially
filed. The new procedures require all claims under the WIA must first
be filed with the Job Corps Regional Office.
Section 15.304 combines all prior subsections regarding limits on
claims under the WIA into one new section.
IV. Administrative Requirements for the Direct Final Rulemaking
Executive Orders 12866 and 13563
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects; distributive impacts; and equity). Executive Order 13563 is
supplemental to and reaffirms the principles, structures, and
definitions governing regulatory review as established in Executive
Order 12866.
The Department has determined that this final rule is not a
``significant regulatory action'' under Executive Order 12866, section
3(f). Accordingly, there is no requirement for an assessment of
potential costs and benefits under section 6(a)(3) of that order.
Regulatory Flexibility Act of 1980
This final rule has been reviewed in accordance with the Regulatory
Flexibility Act of 1980, as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 601-612. The Department has
concluded that the final rule does not involve regulatory and
informational requirements regarding businesses, organizations, and
governmental jurisdictions subject to regulation.
Paperwork Reduction Act (PRA)
This final rule is not subject to the Paperwork Reduction Act (PRA)
of 1995, 44 U.S.C. 3501, et seq., since it does not contain any new
collection of information requirements.
The National Environmental Policy Act of 1969
The Department certifies that this final rule has been assessed in
accordance with the requirements of the National Environmental Policy
Act of 1969, 42 U.S.C. 4321 et seq. (NEPA). The Department concludes
that NEPA requirements do not apply to this rulemaking because this
final rule includes no provisions impacting the maintenance,
preservation, or enhancement of a healthful environment.
Federal Regulations and Policies on Families
The Department has reviewed this final rule in accordance with the
requirements of section 654 of the Treasury and General Government
Appropriations Act of 1999, 5 U.S.C. 601 note. This final rule was not
found to have a potential negative effect on family well-being as it is
defined thereunder.
Executive Order 13045: Protection of Children From Environmental Health
Risks and Safety Risks
The Department certifies that this final rule has been assessed
regarding environmental health risks and safety risks that may
disproportionately affect children. This final rule was not found to
have a potential negative effect on the health or safety of children.
Unfunded Mandates Reform Act of 1995 and Executive Order 13132
The Department has reviewed this final rule in accordance with the
requirements of Executive Order 13132, 64 FR 43225, Aug. 10, 1999, and
the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., and
has found no potential or substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government. As there is no Federal mandate contained herein that
could result in increased expenditures by State, local, or tribal
governments or by the private sector, the Department has not prepared a
budgetary impact statement.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
The Department has reviewed this final rule in accordance with
Executive Order 13175, 65 FR 67249, Nov. 9, 2000, and has determined
that it does not have ``tribal implications.'' The final rule does not
``have substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes.''
Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
The Department has reviewed this final rule in accordance with
Executive Order 12630, 53 FR 8859, Mar. 15, 1988, and has determined
that it does not contain any ``policies that have takings
implications'' in regard to the ``licensing, permitting, or other
condition requirements or limitations on private property use, or that
require dedications or exactions from owners of private property.''
Executive Order 13211: Energy Supply, Distribution, or Use
The Department has reviewed this final rule and has determined that
the provisions of Executive Order 13211, 66 FR 28355, May 18, 2001, are
not applicable as there are no direct or implied effects on energy
supply, distribution, or use.
The Privacy Act of 1974, 5 U.S.C. 552a, as Amended
Claims filed under these regulations are subject to the current
Privacy Act System of Records DOL/SOL-3, Tort Claims Files; DOL/SOL-
5,Workforce Investment Act Tort Claims Files; DOL/SOL-6, Military
Personnel and Civilian Employees' Claims; and DOL/GOVT-1, Office of
Workers' Compensation Programs, Federal Employees' Compensation Act
File. 67 FR 16816, Apr 8, 2002.
Clarity of This Regulation
Executive Order 12866, 58 FR 51735, Sept. 30, 1993, and the
President's memorandum of June 1, 1998, require each agency to write
all rules in plain language. This final rule was written to improve the
clarity of the rule in accordance with that Order.
[[Page 22207]]
List of Subjects
20 CFR Part 638
Administrative practice and procedure, Claims, Government
employees, Labor, Workers' compensation.
20 CFR Part 670
Administrative practice and procedure, Claims, Government
employees, Labor, Workers' compensation.
29 CFR Part 15
Tort claims, Indemnity payments, Administrative practice and
procedure, Government employees.
For the reasons set forth in the preamble, the Department of Labor
amends 20 CFR parts 638 and 670 and 29 CFR part 15 as follows:
Title 20--Employees' Benefits
PART 638--JOB CORPS PROGRAM UNDER TITLE IV-B OF THE JOB TRAINING
PARTNERSHIP ACT
0
1. The authority citation for 20 CFR part 638 continues to read as
follows:
Authority: 29 U.S.C. 1579(a).
0
2. Remove Sec. Sec. 638.526 and 638.527.
PART 670--THE JOB CORPS UNDER TITLE I OF THE WORKFORCE INVESTMENT
ACT
0
3. The authority citation for 20 CFR part 670 continues to read as
follows:
Authority: Subtitle C of Title I, sec. 506(c), Pub. L. 105-220,
112 Stat. 936 (20 U.S.C. 2881 et seq. and 9276(c)); 5 U.S.C. 301;
Executive Order 13198, 66 FR 8497, 3 CFR 2001 Comp., p. 750;
Executive Order 13279, 67 FR 77141, 3 CFR 2002 Comp., p. 258.
0
4. Revise Sec. 670.900 to read as follows:
Sec. 670.900 Are damages caused by the acts or omissions of students
eligible for payment under the Federal Tort Claims Act?
Yes, students are considered Federal employees for purposes of the
FTCA (28 U.S.C. 2671 et seq.). Claims for such damage should be filed
pursuant to the procedures found in 29 CFR part 15, subpart D.
0
5. Revise Sec. 670.905 to read as follows:
Sec. 670.905 Are loss and damages that occur to persons or personal
property of students at Job Corps centers eligible for reimbursement?
Yes, the Job Corps may pay students for valid claims under the
procedures found in 29 CFR part 15, subpart D.
0
6. Revise Sec. 670.910 to read as follows:
Sec. 670.910 If a student is injured in the performance of duty as a
Job Corps Student, what benefits may they receive?
(a) Job Corps students are considered Federal employees for
purposes of the Federal Employees' Compensation Act (FECA) as specified
in 29 U.S.C. 2897.
(b) Job Corps students may be entitled to benefits under FECA as
provided by 5 U.S.C. 8143 for injuries occurring in the performance of
duty.
(c) Job Corps students must meet the same eligibility tests for
FECA benefits that apply to all other Federal employees. The
requirements for FECA benefits may be found at 5 U.S.C. 8101, et seq.
and part 10 of this title. The Department of Labor's Office of Workers'
Compensation Programs (OWCP) administers the FECA program; all FECA
determinations are within the exclusive authority of the OWCP, subject
to appeal to the Employees' Compensation Appeals Board.
(d) Whenever a student is injured, develops an occupationally
related illness, or dies while in the performance of duty, the
procedures of the OWCP, at part 10 of this title, must be followed. To
assist OWCP in determining FECA eligibility, a thorough investigation
of the circumstances and a medical evaluation must be completed and
required forms must be timely filed by the center operator with the
DOL's OWCP. Additional information regarding Job Corps FECA claims may
be found in OWCP's regulations and procedures available on DOL's Web
site located at www.dol.gov.
0
7. Revise Sec. 670.915 to read as follows:
Sec. 670.915 When is a Job Corps student considered to be in the
performance of duty?
(a) Performance of duty is a determination that must be made by the
OWCP under FECA, and is based on the individual circumstances in each
claim.
(b) In general, residential students may be considered to be in the
``performance of duty'' when:
(1) They are on center under the supervision and control of Job
Corps officials;
(2) They are engaged in any authorized Job Corps activity;
(3) They are in authorized travel status; or
(4) They are engaged in any authorized offsite activity.
(c) Non-resident students are generally considered to be ``in
performance of duty'' as Federal employees when they are engaged in any
authorized Job Corps activity, from the time they arrive at any
scheduled center activity until they leave the activity. The standard
rules governing coverage of Federal employees during travel to and from
work apply. These rules are described in guidance issued by the
Secretary.
(d) Students are generally considered to be not in the performance
of duty when:
(1) They are Absent Without Leave (AWOL);
(2) They are at home, whether on pass or on leave;
(3) They are engaged in an unauthorized offsite activity; or
(4) They are injured or ill due to their own willful misconduct,
intent to cause injury or death to oneself or another or through
intoxication or illegal use of drugs.
0
8. Remove Sec. Sec. 670.920, 670.925, and 670.930.
Title 29--Labor
0
9. Revise Part 15 to read as follows:
PART 15--ADMINISTRATIVE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT
AND RELATED CLAIMS STATUTES
Sec.
Subpart A--Introduction
15.1 What is the scope and purpose of this part?
15.2 What definitions apply to this part?
Subpart B--Claims Against the Government Under the Federal Tort Claims
Act
15.100 What claims against the Department are covered by the FTCA?
15.101 Who may file an administrative claim under the FTCA against
the Department?
15.102 May an insurance company file an FTCA administrative claim on
behalf of a claimant?
15.103 May an agent or legal representative file an FTCA
administrative claim on behalf of a claimant?
15.104 Where should the FTCA administrative claim be filed?
15.105 What information and evidence should be provided to DOL to
substantiate an FTCA administrative claim?
15.106 How is the administrative claim processed?
15.107 What must be provided in the administrative report?
15.108 Who is authorized to decide an administrative claim?
15.109 What if the claim is denied?
15.110 What must a claimant do if the administrative claim is
approved?
15.111 If the administrative claim is approved, how is the award
paid?
Subpart C--Claims Under the Military Personnel and Civilian Employees'
Claims Act of 1964
15.200 What is a claim under the MPCECA and who may file such a
claim?
15.201 Where should the MPCECA claim be filed?
[[Page 22208]]
15.202 How is a claim filed under the MPCECA?
15.203 When should a claim under the MPCECA be filed?
15.204 Are there limits on claims under the MPCECA?
15.205 What types of claims for property damage are allowed under
the MPCECA?
15.206 What claims arising at a residence or Telework location may
be covered under the MPCECA?
15.207 What are examples of claims allowed under the MPCECA?
15.208 What are the restrictions on otherwise allowable claims?
15.209 What claims are not allowed?
15.210 What affect does insurance have on a claim under the MPCECA?
15.211 How is a claim under this subpart processed?
15.212 How is the amount of the award under this subpart calculated?
15.213 Are there limits to representatives' fees for claims under
this subpart?
15.214 How may a decision under this subpart be reconsidered?
Subpart D--Claims Arising Out of the Operation of the Job Corps
15.300 How are claims involving the Job Corps initiated?
15.301 What office is responsible for determining liability in
claims arising out of the Job Corps?
15.302 What procedures apply to these claims?
15.303 How does a Job Corps student file a claim for loss of or
damages to personal property under the WIA?
15.304 Are there limits to claims for loss of or damages to personal
property under the WIA?
Authority: 28 U.S.C. 2672; 28 CFR Sec. 14.11; 31 U.S.C. 3721;
29 U.S.C. 2897(b).
Subpart A--Introduction
Sec. 15.1 What is the scope and purpose of this part?
(a) The regulations in this part provide procedures to be followed
for claims asserted against the Department of Labor under the Federal
Tort Claims Act, 28 U.S.C. 2671, et seq., under the Military Personnel
and Civilian Employees' Claims Act of 1964, 31 U.S.C. 3721, and for
claims arising out of the operation of Job Corps Centers under the
Workforce Investment Act of 1998, 29 U.S.C. 2897(b).
(b) Subpart B of this part provides the procedures followed in
processing claims asserted under the Federal Tort Claims Act, as
amended, 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.
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).
(c) Subpart C of this part provides the procedures for processing
claims filed by or on behalf of employees of the Department of Labor
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.
(d) Subpart D of this part provides the procedures used in
processing claims relating to damage to persons or property arising out
of the operation of Job Corps, pursuant to the Workforce Investment
Act, including damages under the Federal Tort Claims Act, damage to
personal property of Job Corps students, and claims 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.
Sec. 15.2 What definitions apply to this part?
(a) Department means the Department of Labor.
(b) Organizational unit means the jurisdictional area of each
Assistant Secretary and each office head within the Department
reporting directly to the Secretary.
(c) Counsel for Claims and Compensation means the Department's
deciding official in the Office of the Solicitor for certain
administrative claims under this part. The address for the Counsel for
Claims and Compensation is U.S. Department of Labor, 200 Constitution
Avenue NW., Suite S4325, Washington, DC 20210. Telephone and fax
numbers for this official may be found on the Department's Web site at
www.dol.gov.
(d) Regional Solicitor means the head of the appropriate Regional
Office (Regional Solicitor) or Branch Office (Associate Regional
Solicitor) of the Office of Solicitor with jurisdiction to handle
certain claims under this part.
(e) FTCA means the Federal Tort Claims Act, as amended, 28 U.S.C.
1346(b), 28 U.S.C. 2671, et seq.
(f) MPCECA means the Military Personnel and Civilian Employees'
Claims Act of 1964, 31 U.S.C. 3721.
(g) WIA means the Workforce Investment Act of 1998, 29 U.S.C.
2897(b).
Subpart B--Claims Against the Government Under the Federal Tort
Claims Act
Sec. 15.100 What claims against the Department are covered by the
FTCA?
(a) The FTCA is a limited waiver of sovereign immunity that allows
claims for money damages against the Department for negligent acts or
omissions of its employees acting within the course and scope of their
employment. Subject to the exception set forth in paragraph (b) of this
section, all such claims against the Department should be handled under
the procedures in this subpart.
(b) In instances where a third party has agreed to insure the
Federal government, such as under a U.S. Government Car Rental
Agreement, claimants are required to pursue those claims in accordance
with such agreements.
Sec. 15.101 Who may file an administrative claim under the FTCA
against the Department?
(a) A claim for the 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 decedent's estate or by any other person legally
entitled to assert such a claim in accordance with applicable State
law.
(d) 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.
(e) Only claims involving alleged acts or omissions of Department
employees (including Job Corps students) should be presented to the
Department.
Sec. 15.102 May an insurance company file an FTCA administrative
claim on behalf of a claimant?
(a) A claim for loss wholly compensated by an insurance company may
be presented by that company.
(b) A claim for loss partially compensated by an insurance company
may be presented by the company or the insured individually, in
accordance with their respective interests or jointly. It should be
noted, however, that if the insurance company claims only part of the
insured's interests, an acceptance of that claim may bar any additional
claim by the insured for damages beyond that claimed by the insurance
company as such acceptance would be in full and
[[Page 22209]]
final settlement of all such claims arising out the incident that gave
rise to the claim as described in Sec. 15.110(b).
(c) If the claimant is directly compensated by the Department for
medical bills under this subpart, the claimant may be required to
reimburse his or her insurance company in accordance with the terms of
his or her insurance policy if the company has already paid those
bills.
(d) Whenever an insurance company presents a claim on behalf of the
insured (such as a claim for an auto loss that includes the
deductible), it shall present with its claim appropriate evidence that
it has the rights of a subrogee, such as a copy of the signed policy.
Sec. 15.103 May an agent or legal representative file an FTCA
administrative claim on behalf of a claimant?
(a) An agent or legal representative may file a claim on behalf of
a claimant.
(b) Representative's fees are limited to not more than 20 percent
of the amount paid for a claim settled in an administrative claim, and
to not more than 25 percent of a judgment or settlement award after
litigation is initiated. 28 U.S.C. 2678.
(c) If a representative is dismissed from representing a claimant
before the claim is resolved, the representative may not place a lien
on the claimant's recoveries under the claim.
(d) Any purported representative of a minor must provide
documentation that he or she is the legal agent of that minor.
Sec. 15.104 Where should the FTCA administrative claim be filed?
(a) Only claims involving alleged acts or omissions of Department
employees should be presented to the Department. For the purposes of
this subpart, an FTCA 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 FTCA case where the claim seeks damages for an incident
resulting in aggregate claims 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, the claimant shall mail or deliver
the 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 office or employment to the Counsel for Claims and
Compensation, Office of the Solicitor, U.S. Department of Labor, 200
Constitution Avenue NW., Suite S4325, Washington, DC 20210.
(c) In all other cases, the claimant shall submit his or her claim
to the official duty station of the employee whose act or omission
forms the basis of the complaint, which should be immediately forwarded
to the appropriate Regional Office of the Office of the Solicitor with
all currently available documentation (such as a Standard Form 91,
Motor Vehicle Accident Report).
Sec. 15.105 What information and evidence should be provided to DOL
to substantiate an FTCA administrative claim?
(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.
(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) 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, an autopsy report and or
other competent evidence that includes cause or causes 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.
(d) Loss of income. In support of a claim based on loss of income,
the claimant may be required to submit the following evidence or
information:
(1) 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.
(2) If the claimant is self-employed, documentary evidence showing
the amount of earnings lost such as:
(i) 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; or
(ii) A statement of the actual or projected cost for the claimant
to hire
[[Page 22210]]
someone else to do the same work he or she was doing at the time of
injury.
(3) 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.
Sec. 15.106 How is the administrative claim processed?
(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 claim filed in the litigation.
(c) FTCA Contact. Each organizational unit will establish an FTCA
contact, unless this requirement is waived by the Counsel for Claims
and Compensation. The FTCA contact will coordinate and oversee the
preservation of documents related to the circumstances of all claims
arising from his or her organizational unit. The FTCA contact will
arrange for the preparation and submission of the Administrative Report
relating to each claim within 30 days after notification of receipt of
an administrative claim, unless the Office of the Solicitor grants
additional time.
(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. 15.107 What must be provided in the administrative report?
(a) 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:
(1) A brief explanation of the organization and operation of the
program involved including statutory authority and applicable
regulations;
(2) A complete description of the events that gave rise to the
claim or litigation, including a specific response to every allegation
in the claim or litigation;
(3) 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;
(4) Any information available regarding the damages claimed;
(5) Any policy reasons which the organizational unit wishes to
advance for or against settlement of the claim or litigation; and
(6) 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.
(b) 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.
(c) 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) The Office of the Solicitor may waive the requirement of an
Administrative Report. If the Administrative Report is waived, the
organizational unit or units involved in the circumstances of the claim
or litigation shall provide certification from the supervisor of the
employee whose alleged negligent act or omission gave rise to the
claim, certifying that the employee was acting within the scope of his
or her employment at the time of the alleged negligent act or omission.
Sec. 15.108 Who is authorized to decide an administrative claim?
(a) The Counsel for Claims and Compensation 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 involve aggregate claims in excess of $25,000,
or which involve a new point of law or a question of policy.
(b) 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 where the aggregate claimed does not exceed
$25,000 in amount and which do not involve a new point of law or a
question of policy.
Sec. 15.109 What if the claim is denied?
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, that claimant
may file suit in an appropriate U.S. District Court not later than 6
months after the date of mailing of the notification.
Sec. 15.110 What must a claimant do if the administrative claim is
approved?
(a) Payment of a claim approved under this subpart is contingent
upon claimant's execution of the appropriate forms, such as the SF-194,
SF-196, or SF-197, in accordance with instructions by the Department of
Justice and/or the Judgment Fund. When a claimant is represented by an
attorney, the voucher for payment shall designate the claimant as payee
(as the beneficial interest holder), and the check shall be delivered
to the attorney whose address appears on the voucher.
(b) Acceptance by the claimant, or his or her agent or legal
representative, of an award, compromise, or settlement under 28 U.S.C.
2672 or 28 U.S.C. 2677 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
officer or employee of the Government whose act
[[Page 22211]]
or omission gave rise to the claim by reason of the same subject
matter.
Sec. 15.111 If the administrative claim is approved, how is the award
paid?
(a) 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.
(b) 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.
(c) An award, compromise or settlement of a claim under 28 U.S.C.
2672 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.
Subpart C--Claims Under the Military Personnel and Civilian
Employees' Claims Act of 1964
Sec. 15.200 What is a claim under the MPCECA and who may file such a
claim?
(a) A claim under the MPCECA for damage or loss is allowable only
if the property involved was being used incident to service with the
Department.
(b) A claim may be made under this subpart by an employee of the
Department 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.
(c) An MPCECA claim may not be made by or for the benefit of an
insurance company, subrogee, assignee, conditional vendor or other
third party.
Sec. 15.201 Where should the MPCECA claim be filed?
(a) 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 and Compensation, Office of the Solicitor of Labor, U.S.
Department of Labor, Suite S4325, 200 Constitution Avenue NW.,
Washington, DC, 20210.
(b) In all other cases, the claimant shall address the claim to the
regional or branch office of the Office of the Solicitor servicing the
claimant's official duty station.
Sec. 15.202 How is a claim filed under the MPCECA?
(a) A claim under this subpart must be presented in writing. A
sample claim, located on the Department's Office of the Solicitor,
Federal Employees' and Energy Workers' Compensation Division Web site
at www.dol.gov, is provided as an example for convenience of filing.
The SF-95 for FTCA claims is not an appropriate form for a MPCECA
claim.
(b) 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 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 may 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. The Office of
the Solicitor may waive the requirement of two estimates of repair.
(3) A copy of the power of attorney or other authorization if
someone other than the employee files the claim.
(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.
Sec. 15.203 When should a claim under the MPCECA be filed?
A claim under this subpart 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:
(a) The time of the accident or incident causing the loss or
damage;
(b) Such time as the loss or damage should have been discovered by
the claimant by the exercise of due diligence; or
(c) 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 2 years
before war or an armed conflict begins, and for cause shown.
Sec. 15.204 Are there limits on claims under the MPCECA?
(a) The maximum amount that can be paid for any claim under the
MPCECA is $40,000, or, if the claim arises from emergency evacuation or
extraordinary circumstances, up to $100,000, and property may be
replaced in kind at the option of the Government. 31 U.S.C. 3721(b)(1).
(b) 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.
Sec. 15.205 What types of claims for property damage are allowed
under the MPCECA?
(a) Claims for property damage are allowed under the MPCECA only if
the property involved was being used incident to service with the
Department and:
(l) 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 by the claimant's supervisor to
have been reasonable, useful or proper under the circumstances; and
(3) The claim is substantiated by proper and convincing evidence.
(b) Claims 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.
[[Page 22212]]
Sec. 15.206 What claims arising at a residence or Telework location
may be covered under the MPCECA?
(a) Claims arising at a residence, Telework center or other
flexiplace location may be covered under the MPCECA.
(b) For the purpose of this subpart, residence means a house,
apartment or other location that is a Department employee's principal
abode.
(c) Claims for property damage at an alternative work location at
which the employee is performing duties pursuant to an approved
Telework agreement may be covered by the MPCECA if the property was
being used incident to service with the Department, as, for the
purposes of this subpart, that location is considered to be an official
duty station. Under most circumstances, property damage will only be
allowed if it occurs at or in connection with the employee's
workstation.
(d) Claims under the MPCECA at a residence not covered by paragraph
(c) of this section may be allowable for damage to, or loss of,
property arising from fire, flood, hurricane, other natural disaster,
theft, or other unusual occurrence, if the property was being used
incident to service with the Department, while such property is located
at:
(1) Residences 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
(2) Residences 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
(3) Any warehouse, office, working area or other place (except
residences) authorized or apparently authorized for the reception or
storage of property.
Sec. 15.207 What are examples of claims allowed under the MPCECA?
The following are examples of the principal types of allowable
claims, but these examples are not exclusive; other claims may be
allowed, unless hereinafter excluded:
(a) 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.
(b) Enemy action or public service. Claims may be allowed for
damage to, or loss of, property as a direct consequence of:
(1) Enemy action or threat thereof, or terrorism, combat,
guerrilla, brigandage, or other belligerent activity, or unjust
confiscation by a foreign power or its nationals.
(2) Action by the claimant to quiet a civil disturbance or to
alleviate a public disaster.
(3) Efforts by the claimant to save human life or Government
property.
(c) 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.
(d) Electronics and cellular phones. Claims may be allowed for loss
of, or damage to, cellular phones, personal data assistants and similar
communication and electronic devices subject to the limitations in
Sec. 15.209(e).
(e) Clothing and Accessories. Claims may be allowed for damage to,
or loss of, clothing and accessories customarily worn on the person,
such as eyeglasses, hearing aids, or dentures subject to the
limitations in Sec. 15.209(e).
(f) 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. 15.208(c)) are also allowable.
Sec. 15.208 What are the restrictions on otherwise allowable claims?
(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
residence (as limited by Sec. 15.206). In incidents of theft from a
residence, it must be conclusively shown that the residence was 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 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 residence and
office, or use of vehicles for the convenience of the owner. However,
it does include travel, and parking incident thereto, between a
residence and an assigned place of duty specifically authorized or
otherwise shown to be permitted 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. 15.210.
Sec. 15.209 What claims are not allowed?
(a) Unassigned residences 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 or part of an approved Telework
agreement.
(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
watches, jewelry, furs, clothes, electronics 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 the
claimant has taken reasonable protection or security measures.
(f) Intangible property. Loss of property that has no extrinsic and
marketable value but is merely representative or evidence of value
(such as a non-negotiable stock certificate or warehouse receipt) is
not compensable. Intangible value is not compensable.
(g) Incidental expenses and consequential damages. The MPCECA and
this subpart authorize payment for loss of or damage to personal
property only. Except as provided in Sec. 15.207(f), 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,
[[Page 22213]]
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 $40.
Sec. 15.210 What affect does insurance have on a claim under the
MPCECA?
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
should 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, unless, in the subsequent
determination of the deciding official, the filing of such a demand was
impracticable or inequitable. For example, if the value of a claim is
$535 and the insurance deductible is $500, the deciding official may
determine that no claim need be made against the insurer.
(c) Unless the deciding official determines that no demand should
have been or need be made, 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.
(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
the 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 of 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.
15.204. 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. 15.204.
Sec. 15.211 How is a claim under this subpart processed?
(a) The Counsel for Claims and Compensation, the Regional
Solicitors, and the Associate Regional Solicitors are authorized to
consider, ascertain, adjust, determine, compromise and settle claims
filed under this subpart that arise 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
and Compensation.
(b) Any writing received by the Office of the Solicitor within the
time limits set forth in Sec. 15.203 will be accepted and considered a
claim under the MPCECA if it constitutes a demand for compensation from
the Department. A sample claim, located on the Department's Office of
the Solicitor, Federal Employees' and Energy Workers' Compensation
Division Web site at www.dol.gov, is provided for convenience of
filing. The SF-95 form used to file a claim under the FTCA is not an
appropriate form for a claim under the MPCECA claim.
(c) A demand is not required to be for a specific sum of money.
(d) The determination upon the claim shall be provided to the
claimant in writing by the deciding official.
Sec. 15.212 How is the amount of the award under this subpart
calculated?
(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.
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(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 MPCECA is final and conclusive.
Sec. 15.213 Are there limits to representatives' fees for claims
under this subpart?
Yes. No more than 10 percent of the amount 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. 31 U.S.C. 3721(i).
Sec. 15.214 How may a decision under this subpart be reconsidered?
(a) While there is no appeal from the decision of the deciding
official in regard to claims under the MPCECA, the deciding official
may always reconsider his or her determination of a claim.
(b) A claimant may request reconsideration from the deciding
official by directing a written request for reconsideration to the
deciding official within 60 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) The determination upon the reconsideration will be provided to
the claimant in writing by the deciding official.
Subpart D--Claims Arising Out of the Operation of the Job Corps
Sec. 15.300 How are claims involving the Job Corps initiated?
(a) Claims involving the Job Corps, including claims against Job
Corps Centers run by other Federal agencies, claims by third parties
involving the acts or omissions of students of Job Corps, and claims
involving the loss of personal property of students of Job Corps should
be submitted to the appropriate Job Corps Regional Office. Claims under
the MPCECA for non-Department Federal employees should be sent to and
must be handled by their respective Federal employer, subject to that
employer's procedures. FTCA claims over $25,000 should be sent to and
must be handled by the Counsel for Claims and Compensation under
subpart B of this part.
(b) The Job Corps Regional Office shall investigate all facts of
the claim, including accident and medical reports, interview witnesses,
and, where necessary, prepare the appropriate administrative reports.
(c) Following the investigation, the Job Corps Regional Office will
determine the appropriate reviewing official and if necessary forward
the claim to the appropriate office immediately with all currently
available documentation, as described in Sec. 15.301.
Sec. 15.301 What office is responsible for determining liability in
claims arising out of the Job Corps?
(a) The Director of the appropriate Job Corps Regional Office is
responsible for claims not cognizable under the FTCA pursuant to the
WIA arising out of the operation of the Job Corps involving loss or
damage to persons or personal property of students of Job Corps Centers
that do not exceed $300.
(b) The Regional Solicitor is responsible for claims not cognizable
under the FTCA pursuant to the WIA arising out of the operation of the
Job Corps involving loss or damage to persons or personal property of
students of Job Corps Centers for claims exceeding $300.
(c) The Regional Solicitor is responsible for all FTCA claims
involving damage to persons or property arising out of an act or
omission of a Job Corps student or Federal employee that do not exceed
$25,000 and do not involve a new point of law or a question of policy.
(d) All remaining claims with aggregate damages of $25,000 or more
are the responsibility of the Counsel for Claims and Compensation.
(e) The Job Corps Regional Office Director, the Regional Solicitors
and the Associate Regional Solicitors are authorized to consider,
determine and settle claims filed under this subpart that arose within
their respective jurisdictions.
Sec. 15.302 What procedures apply to these claims?
(a) Claims involving the negligent acts or omissions of Job Corps
students or Federal employees are claims under the FTCA and are
determined under the procedures in subpart B of this part. FTCA claims
must be forwarded to and decided by the responsible Solicitor's Office.
(b) Claims involving loss or damage to persons or the personal
property of Job Corps students are covered by the WIA, 29 U.S.C.
2897(b), which provides that the Secretary of Labor may adjust or
settle claims for damages to a person or property of up to $1,500 if
those claims are found to be a proper charge against the United States
and are not cognizable under the FTCA.
Sec. 15.303 How does a Job Corps student file a claim for loss of or
damages to personal property under the WIA?
(a) A WIA claim under this subpart must be in writing and signed by
the claimant or by an authorized representative. In order to be a
proper claim, a WIA claim must fully describe the property and the
circumstances that gave rise to the loss or damage.
(b) All WIA claims under this subpart must be filed with the
appropriate Job Corps Regional Office within 2 years of the date upon
which the claim accrued. The Job Corps Regional Office may consult with
the Regional Solicitor and/or Counsel for Claims and Compensation as
necessary.
(c) The determination upon the claim shall be provided to the
claimant in writing by the appropriate deciding official.
(d) Reconsideration of a determination under this subpart shall be
available upon written request received within 60 days by the
appropriate deciding official. The deciding official will provide a
written response to the claimant within 60 days of such request. No
further review of the matter will be permitted.
Sec. 15.304 Are there limits to claims for loss of or damages to
personal property under the WIA?
(a) Only claims involving damage or loss to personal property that
occurred while at the Job Corps Center or while on authorized travel,
training or other authorized activities may be considered under the
WIA.
(b) The Job Corps will only reimburse up to $300.00 per item for
claims for loss or damage of personal property under the WIA, up to a
maximum of $1,500 per occurrence.
(c) If the property in question is not of a type that the student
is authorized to bring to the Job Corps Center, no compensation will be
made under this subpart. For example, if the Job Corps Center has
explicit written rules imposing limitations on the type of electronic
equipment or other personal items such as jewelry that may be brought
to the center, no compensation will be awarded for the loss or damage
of such property.
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Signed at Washington, DC, this 4th of April 2012.
M. Patricia Smith,
Solicitor of Labor, U.S. Department of Labor.
[FR Doc. 2012-8741 Filed 4-12-12; 8:45 am]
BILLING CODE 4510-23-P