81_FR_17682 81 FR 17621 - Administrative Claims

81 FR 17621 - Administrative Claims

DEPARTMENT OF DEFENSE
Department of the Air Force

Federal Register Volume 81, Issue 61 (March 30, 2016)

Page Range17621-17635
FR Document2016-06896

This rule contains amendments for policy changes and clarification and deletions for the Air Force guidance on Administrative claims and Personnel and Carrier Recovery Claims. The rule relates to the Air Force processes for claims filed for and against the Air Force as well as Air Force processes for filing personnel and carrier recovery claims.

Federal Register, Volume 81 Issue 61 (Wednesday, March 30, 2016)
[Federal Register Volume 81, Number 61 (Wednesday, March 30, 2016)]
[Proposed Rules]
[Pages 17621-17635]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-06896]


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DEPARTMENT OF DEFENSE

Department of the Air Force

32 CFR Part 842

[Docket ID: USAF-2015-0003]
RIN 0701-AA79


Administrative Claims

AGENCY: Department of the Air Force, DoD.

ACTION: Proposed rule.

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SUMMARY: This rule contains amendments for policy changes and 
clarification and deletions for the Air Force guidance on 
Administrative claims and Personnel and Carrier Recovery Claims. The 
rule relates to the Air Force processes for claims filed for and 
against the Air Force as well as Air Force processes for filing 
personnel and carrier recovery claims.

DATES: Comments must be received by May 31, 2016.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) and title, by any of the following 
methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Department of Defense, Office of the Deputy Chief 
Management Officer, Directorate of Oversight and Compliance, Regulatory 
and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-
9010.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this Federal Register document. The 
general policy for comments and other submissions from members of the 
public is to make these submissions available for public viewing on the 
Internet at http://www.regulations.gov as they are received without 
change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Mr. Daniel Lemieux (AFLOA/JACC), 1500 
West Perimeter Rd, Ste 1700, Joint Base Andrews, MD 20762, (240) 612-
4646, daniel.g.lemieux.civ@mail.mil.

SUPPLEMENTARY INFORMATION:

Executive Summary

I. Purpose of This Regulatory Action

    The purpose of this rule is to provide the public with information 
necessary to file a claim against the United States Air Force for money 
damages and to notify the public of the procedures used to collect 
money from the public for damages to property under the control of the 
United States Air Force. Additionally, it is to provide the public with 
information about proposed changes and deletions concerning the 
settlement and payment of claims under the Military Personnel and 
Civilian Employee's Claims Act for incident to service loss and damage 
to personal property.

II. Summary of the Major Provisions of This Regulatory Action

    This part describes the process and procedures by which claims 
against the Air Force will be addressed, including who are proper 
claimants, how, where and when to file a claim, what claims are 
payable, how the Air Force will adjudicate claims and how to appeal 
unfavorable decisions. It also describes the process the Air Force will 
use for asserting claims against persons who damage Air Force property.
    Changes: This part has been substantially revised and should be 
reviewed in its entirety to determine the changes made.
    Deletions: This part has been substantially revised and should be 
reviewed in its entirety to determine the deletions made.

III. Costs and Benefits

    The regulations contained herein require the public who wish to 
file a claim against the Air Force to substantiate their loss, which 
may result in minor or incidental costs to the claimant. Revised 
regulations pertaining to how the Air Force asserts claims for damage 
to Air Force property may result in increased costs to those who cause 
said damage. The benefits of these regulations include increased 
safeguards to ensure public funds are not expended for fraudulent 
claims and to ensure the U.S. government receives adequate compensation 
for damages to its property wrongfully caused by others.

Retrospective Review

    This rule is part of DoD's retrospective plan, completed in August 
2011, under Executive Order 13563, ``Improving Regulation and 
Regulatory Review,'' DoD's full plan and updates can be accessed at: 
http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=DOD-2011-OS-0036.
    Administrative Procedure Act: The Air Force has determined that the 
Administrative Procedure Act, 5 U.S.C. 553, requires notice of proposed 
rulemaking and an opportunity for public participation in connection 
with these correction amendments and deletions. In this regard, the Air 
Force notes that such notice and opportunity for comment is necessary 
because these correction amendments and deletions are not related 
solely to interpretative rules, general statements of policy, rules of 
agency organization, procedure, or practice, nor is there good cause to 
find that notice and public procedure thereon are impracticable, 
unnecessary or contrary to the public interest.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    Executive Orders 13563 and 12866 direct 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, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. The Department of Air Force has assessed this rule and 
determined this rule to be a ``non-significant regulatory action.''

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
(Pub. L. 104-4) requires agencies assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any 1 year 
of $100 million in 1995 dollars, updated annually for inflation. In 
2014, that threshold is approximately $141 million. This rule will not 
mandate any requirements for State, local, or tribal governments, nor 
will it affect private sector costs.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. Therefore, the Regulatory Flexibility Act, as 
amended,

[[Page 17622]]

does not require us to prepare a regulatory flexibility analysis.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    This rule does not impose reporting or recordkeeping requirements 
under the Paperwork Reduction Act of 1995.

Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. This rule will not have a substantial effect on State and 
local governments.

List of Subjects in 32 CFR Part 842

    Administrative claims.

    Accordingly, 32 CFR part 842 is proposed to be amended as follows:

PART 842--[AMENDED]

0
1. The authority citation for 32 CFR part 842 continues to read as 
follows:

    Authority:  Sec. 8013, 100 Stat. 1053, as amended; 10 U.S.C. 
8013, except as otherwise noted; 28 CFR 14.11, except as otherwise 
noted.

0
2. The Note for part 842 is revised to read as follows:

    Note:  Air Force Regulations are available on the e-Publishing 
Web site at http://www.e-publishing.af.mil/ for downloading. This 
part is derived from Air Force Instruction 51-501, Tort Claims, and 
Air Force Instruction 51-502, Personnel and Carrier Recovery Claims.

0
3. Amend part 842 by:
0
a. Revising all references to ``HQ USAF/JACC'' to read ``AFLOA/JACC.''
0
b. Revising all references to ``USAF/JACC'' to read ``AFLOA/JACC.''
0
4. Revise Sec.  842.0 to read as follows:


Sec.  842.0  Scope.

    This part establishes standard policies and procedures for all 
administrative claims resulting from Air Force activities and for which 
the Air Force has assigned responsibility.
0
5. Amend Sec.  842.2 by:
0
a. Revising paragraph (f).
0
b. Removing paragraph (g).
0
c. Redesignating paragraphs (h) through (o) as (g) through (n).
0
d. Revising newly redesignated paragraph (g).
    The revisions read as follows:


Sec.  842.2  Definitions.

* * * * *
    (f) AFLOA/JACC. Claims and Tort Litigation Division, 1500 West 
Perimeter Road, Suite 1700, Joint Base Andrews, MD 20762.
    (g) Owner. A holder of a legal title or an equitable interest in 
certain property. Specific examples include:
    (1) For real property. The mortgagor, and the mortgagee if that 
individual can maintain a cause of action in the local courts involving 
a tort to that specific property.
    (2) For personal property. A bailee, lessee, mortgagee and a 
conditional vendee. A mortgagor, conditional vendor, title loan company 
or someone else other than the owner, who has the title for purposes of 
security are not owners.
* * * * *
0
6. Revise Sec.  842.4 to read as follows:


Sec.  842.4  Where to file a claim.

    File a claim at the base legal office of the unit or installation 
at or nearest to where the accident or incident occurred. If the 
accident or incident occurred in a foreign country where no Air Force 
unit is located, file the claim with the Defense Attache (DATT) or 
Military Assistance Advisory Group (MAAG) personnel authorized to 
receive claims (DIAM 100-1 and AFR 400-45). In a foreign country where 
a claimant is unable to obtain adequate assistance in filing a claim, 
the claimant may contact the nearest Air Force SJA. The SJA then 
advises AFLOA/JACC through claims channels of action taken and states 
why the DATT or MAAG was unable to adequately assist the claimant.


Sec.  842.9  [Removed]

0
7. Remove Sec.  842.9.

Subpart B--[Removed]

0
8. Remove Subpart B, consisting of Sec. Sec.  842.10 through 842.14.

Subpart C--[Redesignated as Subpart B]

0
9. Redesignate subpart C, consisting of Sec. Sec.  842.15 through 
842.20, as subpart B, consisting of Sec. Sec.  842.9 through 842.14, 
respectively.
0
10. Amend newly redesignated Sec.  842.10 by revising paragraphs (a), 
(b), and (d) to read as follows:


Sec.  842.10  Definitions.

    (a) Appointing commander. The commander exercising special court-
martial jurisdiction over the offender.
    (b) Board of officers. One to three commissioned officers appointed 
to investigate a complaint of willful property damage or wrongful 
taking by Air Force personnel.
* * * * *
    (d) Willful damage. Damage or destruction caused intentionally, 
knowingly, and purposely, without justifiable excuse.
* * * * *
0
11. Amend newly redesignated Sec.  842.12 by adding paragraphs (g) 
through (i) to read as follows:


Sec.  842.12  Claims not payable.

* * * * *
    (g) Claims involving wrongful taking stemming from larceny, forgery 
or deceit, which are not accompanied by riotous or violent action.
    (h) Claims against Air National Guard members unless they are 
performing duty under Title 10 U.S.C.
    (i) Claims for indirect, consequential or remote damages.
0
12. Revise newly redesignated Sec.  842.13 to read as follows:


Sec.  842.13  Limiting provisions.

    (a) A complaint must be submitted within 90 days of the date of the 
incident. The appointing commander may find good cause for the delay 
and accept a late claim. The appointing commander's determination of 
good cause is final and not reviewable.
    (b) Assessment of damages in excess of $5,000 against an offender's 
pay for a single incident requires AFLOA/JACC approval.
0
13. Revise newly redesignated Sec.  842.14 to read as follows:


Sec.  842.14  Filing a claim.

    Claimant complains (orally or in writing) to the commander of a 
military organization or unit of the alleged offending member or 
members or to the commander of the nearest military installation. If 
the claim is made orally, the individual must assist the commander to 
reduce the complaint to writing within a reasonable time. The 
complainant need not request a sum certain in writing at the time the 
complaint is filed, but they must present such value and evidence 
before settlement is made.

Subpart D--[Redesignated as Subpart C]

0
14. Redesignate subpart D, consisting of Sec. Sec.  842.21 through 
842.35, as subpart C, consisting of Sec. Sec.  842.15 through 842.29.


Sec.  842.16  [Amended]

0
15. Amend newly redesignated Sec.  842.16 by:
0
a. Removing paragraphs (a), (c), (e), and (g).
0
b. Redesignating paragraphs (b), (d), (f), and (h) as paragraphs (a), 
(b), (c), and (d).
0
16. Revise newly designated Sec.  842.17 to read as follows:

[[Page 17623]]

Sec.  842.17  Delegations of authority.

    (a) Settlement authority. The Secretary of the Air Force has 
delegated the authority to assign areas of responsibility and designate 
functional responsibility for claims under the Military Personnel and 
Civilian Employees' Claims Act to The Judge Advocate General (TJAG).
    (b) Reconsideration authority. A settlement authority has the same 
authority specified in paragraph (a) of this section. However, with the 
exception of TJAG, a settlement authority may not deny a claim on 
reconsideration that it, or its delegate, had previously denied.
    (c) Authority to reduce, withdraw and restore delegated settlement 
authority. Any superior settlement authority may reduce, withdraw, or 
restore delegated authority.
0
17. Amend newly designated Sec.  842.18 by revising paragraph (a) to 
read as follows:


Sec.  842.18  Filing a claim.

    (a) How and when to file a claim. A claim is filed when a federal 
military agency receives from a claimant or duly authorized agent a 
properly completed AF Form 180, DD Form 1842 or other written and 
signed demand for a determinable sum of money.
    (1) A claim is also filed when a federal military agency receives 
from a claimant or duly authorized agent an electronic submission, 
through a Department of Defense claims Web site, indicating that the 
claimant intends for the appropriate military branch to consider a 
digitally signed demand for a determinable sum of money.
    (2) A claim is also filed when the Air Force receives from a 
claimant or duly authorized agent an electronic submission, through the 
Air Force claims Web site, a digitally signed demand for a determinable 
sum of money.
* * * * *
0
18. Revise newly designated Sec.  842.19 introductory text to read as 
follows:


Sec.  842.19  Partial payments.

    Upon request of a claimant, a settlement authority may make a 
partial payment in advance of final settlement when a claimant 
experiences personal hardship due to extensive property damage or loss. 
Partial payments are made if a claim for only part of the loss is 
submitted and is readily provable, up to the amount of the settlement 
authority. (The claimant may later amend the claim for the remainder of 
the loss.) If the total payable amount of the claim exceeds the payment 
limits of the settlement authority, send it with recommendations to the 
proper settlement authority.
* * * * *
0
19. Revise newly designated Sec.  842.21 to read as follows:


Sec.  842.21  Who may file a claim.

    A claim may be filed by:
    (a) A proper claimant,
    (b) An authorized agent or legal representative of a proper 
claimant,
    (c) A survivor of a deceased proper claimant in this order:
    (1) Spouse.
    (2) Children.
    (3) Father or mother.
    (4) Brothers or sisters.
0
20. Amend newly designated Sec.  842.24 by revising paragraph (d) to 
read as follows:


Sec.  842.24  General provisions.

* * * * *
    (d) Property that is owned by the claimants, or their immediate 
families, or borrowed for their use, or in which the claimants or their 
immediate families has an enforceable ownership interest.
* * * * *
0
21. Amend newly designated Sec.  842.25 by revising introductory text 
and paragraphs (a) and (b) to read as follows:


Sec.  842.25  Claims payable.

    Claims may be payable for loss of or damage to tangible personal 
property when the damage occurs incident to service. For loss of or 
damage to property to be incident to service, it must occur at a place 
and time that is connected to the service of an active duty military 
member or employment of a civilian employee.
    (a) Authorized Location. Claims are only payable when the claimed 
property is located in an authorized location. There must be some 
connection between the claimant's service and the location of the 
claimed property. Duty locations where personal property is used, 
stored or held because of official duties are authorized places. Other 
authorized places may include:
    (1) Any location on a military installation not otherwise excluded.
    (2) Any office, building, recreation area, or real estate the Air 
Force or any other DoD element uses or controls.
    (3) Any place a military member is required or ordered to be 
pursuant to their duties and while performing those duties.
    (4) Assigned Government Housing or Quarters in the United States or 
provided in kind. The Military Personnel and Civilian Employees' Claims 
Act specifically prohibits payment for loss of or damage to property in 
quarters within the US unless the housing or quarters are assigned or 
otherwise provided in kind. Base housing that has not been privatized 
is generally considered assigned or provided in kind wherever it is 
located.
    (i) Privatized Housing or Quarters within the United States subject 
to the Military
    Housing Privatization Initiative located within the fence line of a 
military installation or on federal land in which the DoD has an 
interest is considered assigned or otherwise provided in kind for the 
purposes of the Military Personnel and Civilian Employees' Claims Act.
    (ii) Reserved.
    (5) Housing or Quarters outside the United States. Outside the US, 
authorized off-base quarters, as well as assigned quarters, including 
quarters in US territories and possessions, are authorized places. The 
residence of a civilian employee is not an authorized location if the 
employee is a local inhabitant.
    (6) Temporary Duty Quarters (TDY) and locations en route to the TDY 
destination.
    Significant deviations from the direct travel route are not 
authorized locations.
    (7) Permanent Change of Station (PCS) temporary quarters and 
locations enroute to the PCS destination. Significant deviations from 
the direct travel route are not authorized locations.
    (8) Entitlement and Benefit Locations. For these locations to be 
authorized, the claimant must be using them for the intended purpose 
and the property must be reasonably linked to that purpose.
    (9) Locations where Personal Property shipped or stored at 
government expense are found. Government facilities where property is 
stored at the claimant's expense or for their convenience without an 
entitlement are not authorized places.
    (b) Payable Causes of Loss Incident to Service. Because the PCA is 
not a substitute for private insurance, loss or damage at quarters or 
other authorized locations may only be paid if caused by:
    (1) An unusual occurrence;
    (2) Theft, vandalism or other malfeasance;
    (3) Hostile action;
    (4) A carrier, contractor, warehouseman or other transportation 
service provider storing or moving goods or privately owned vehicles at 
government expense;
    (5) An agent of the US; or
    (6) A permanent seizure of a witness' property by the Air Force.
* * * * *

[[Page 17624]]

0
22. Amend newly designated Sec.  842.26 by:
0
a. Revising paragraphs (d), (j), (m), (n), (u), (y), and (z).
0
b. Remove paragraphs (aa), (bb), (cc), and (dd).


Sec.  842.26  Claims not payable.

* * * * *
    (d) The loss is recovered or recoverable from an insurer or other 
source unless the settlement authority determines there is good cause 
for not claiming against the insurer.
* * * * *
    (j) It is an appraisal fee, unless the settlement authority 
requires one to adjudicate the claim.
* * * * *
    (m) It is an item acquired, possessed, shipped, or stored in 
violation of any U.S. Armed Force directive or regulation.
    (n) It is an item fraudulently claimed.
* * * * *
    (u) It is an inconvenience expense.
* * * * *
    (y) It is damage to, or loss of a rental vehicle which TDY or PCS 
orders authorized.
    (z) It is a cost to relocate a telephone or mobile or manufactured 
home due to a government ordered quarters move.

Subpart E--[Removed]

0
23. Remove subpart E.

Subpart F--[Redesignated as Subpart D]

0
24. Redesignate subpart F, consisting of Sec. Sec.  842.40 through 
842.54, as subpart D consisting of Sec. Sec.  842.30 through 842.44.
0
25. Revise newly redesignated Sec.  842.30 to read as follows:


Sec.  842.30  Scope of this subpart.

    This subpart establishes policies and procedures for all 
administrative claims under the Military Claims Act for which the Air 
Force has assigned responsibility.
0
26. Amend newly redesignated Sec.  842.31, by revising paragraph (b) to 
read as follows:


Sec.  842.31  Definitions.

* * * * *
    (b) Final denial. A letter mailed from the settlement authority to 
the claimant or authorized agent advising the claimant that the Air 
Force denies the claim. Final denial letters mailed from within the 
United States shall be sent by U.S. Mail, certified mail, return 
receipt requested.
* * * * *
0
27. Amend newly redesignated Sec.  842.32 by:
0
a. Revising paragraphs (a)(1) introductory text, (a)(3) introductory 
text, (a)(3)(ii) and (iii), (a)(4) and (5), (b), and (f) introductory 
text:
0
b. Removing paragraph (f)(8) and redesignating paragraphs (f)(9) 
through (11) as paragraphs (f)(8) through (10).
    The revisions read as follows:


Sec.  842.32  Delegations of authority.

    (a) Settlement authority:
    (1) The Secretary of the Air Force has authority to:
* * * * *
    (3) The following individuals have delegated authority to settle 
claims for $25,000 or less and to deny claims in any amount:
* * * * *
    (ii) The Director, Civil Law and Litigation.
    (iii) The Chief, Associate Chief and Branch Chiefs, Claims and Tort 
Litigation Division.
    (4) SJAs of the Air Force component commander of the US Geographic 
combatant commands for claims arising within their respective combatant 
command areas of responsibility have delegated authority to settle 
claims payable or deny claims filed for $25,000 or less.
    (5) SJAs of GCMs in PACAF and USAFE have delegated authority to 
settle claims payable, or deny claims filed for $15,000 or less.
    (b) Redelegation of authority. The Chief, Claims and Tort 
Litigation Division may redelegate his or her authority to Staff Judge 
Advocates. A settlement authority may redelegate his or her authority 
for claims not exceeding $25,000, to a subordinate judge advocate or 
civilian attorney in writing. The Chief, AFLOA/JACC may redelegate up 
to $25,000, in writing, to paralegals assigned to AFLOA/JACC and, upon 
request, may authorize installation Staff Judge Advocates to redelegate 
their settlement authority to paralegals under their supervision.
* * * * *
    (f) Special exceptions. Do not settle or deny claims for the 
following reasons without AFLOA/JACC approval:
* * * * *
0
28. Amend newly redesignated Sec.  842.33, by revising paragraph (a) to 
read as follows:


Sec.  842.33  Filing a claim.

    (a) Elements of a proper claim. A claim is must be filed on a 
Standard Form 95 or other written document. It must be signed by the 
Claimant or authorized agent, be for money damages in a sum certain, 
and lay out a basic statement as to the nature of the claim that will 
allow the Air Force to investigate the allegations contained therein.
* * * * *
0
29. Revise newly redesignated Sec.  842.34 to read as follows:


Sec.  842.34  Advance payments.

    Subpart P sets forth procedures for advance payments.
0
30. Amend newly redesignated Sec.  842.35 by revising paragraphs (a) 
and (c) to read as follows:


Sec.  842.35  Statute of limitations.

    (a) A claim must be filed in writing within 2 years after it 
accrues. It is deemed to be filed upon receipt by The Judge Advocate 
General, AFLOA/JACC, or a Staff Judge Advocate of the Air Force. A 
claim accrues when the claimant discovers or reasonably should have 
discovered the existence of the act that resulted in the claimed loss. 
The same rules governing accrual pursuant to the Federal Tort Claims 
Act should be applied with respect to the Military Claims Act. Upon 
receipt of a claim that properly belongs with another military 
department, the claim is promptly transferred to that department.
* * * * *
    (c) A claim filed after the statute of limitations has run is 
considered if the U.S. is at war or in an armed conflict when the claim 
accrues or if the U.S. enters a war or armed conflict after the claim 
accrues, and if good causes shows how the war or armed conflict 
prevented the claimant from diligently filing the claim within the 
statute of limitations. But in no case will a claim be considered if 
filed more than two years after the war or armed conflict ends.
0
31. Revise newly redesignated Sec.  842.37 to read as follows:


Sec.  842.37  Who are proper claimants.

    (a) Citizens and inhabitants of the United States. U.S. inhabitants 
includes dependents of the U.S. military personnel and federal civilian 
employees temporarily outside the U.S. for purposes of U.S. government 
service.
    (b) U.S. military personnel and civilian employees. NOTE: These 
personnel are not proper claimants for claims for personal injury or 
death that occurred incident to their service.
    (c) Foreign military personnel when the damage or injury occurs in 
the U.S. Do not pay for claims under the MCA for personal injury or 
death of a foreign military personnel that occurred incident to their 
service.

[[Page 17625]]

    (d) States, state agencies, counties, or municipalities, or their 
political subdivisions.
    (e) Subrogees of proper claimants to the extent they have paid for 
the claim in question.
0
32. Revise newly redesignated Sec.  842.38 to read as follows:


Sec.  842.38  Who are not proper claimants.

    (a) Governments of foreign nations, their agencies, political 
subdivisions, or municipalities.
    (b) Agencies and NAFIs of the U.S. Government.
    (c) Subrogees of Sec.  842.42(a) and (b) of this part.
    (d) Inhabitants of foreign countries.
0
33. Amend newly redesignated Sec.  842.39 by:
0
a. Revising paragraph (a).
0
b. Removing paragraphs (c), (d) and (f).
0
c. Redesignating paragraph (e) as paragraph (c).
    The revision reads as follows


Sec.  842.39  Claims payable.

    (a) Claims arising from negligent or wrongful acts or omissions 
committed by United States military or civilian personnel while acting 
in the scope of their employment, subject to the exceptions listed in 
this subpart.
* * * * *
0
34. Revise newly redesignated Sec.  842.40 to read as follows:


Sec.  842.40  Claims not payable.

    (a) Is covered by the FTCA, FCA, IACA, 10 U.S.C. 2734a and 2734b, 
Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 9801-9804, 9806, 
NGCA, 32 U.S.C. 715, or covered under the Military Personnel and 
Civilian Employees' Claims Act (MPCECA), 31 U.S.C. 3701, 3721. (1) MCA 
claims arising from noncombat activities in the U.S. are not covered by 
the FTCA because more elements are needed to state an FTCA claim than 
are needed to state a claim under the MCA for noncombat activities. All 
FTCA claims are based on elements of traditional tort liability (i.e., 
duty, breach, causation, and damages); that is, they are fault based. 
Noncombat activity claims under the MCA are based solely on causation 
and damages. Because MCA claims for noncombat activities are not fault 
based, they are not covered by the FTCA.
    (2) Claims for incident-to-service damage to vehicles caused by the 
negligence of a member or employee of the armed forces acting in the 
scope of employment are paid under the MCA, instead of the Military 
Personnel and Civilian Employees' Claims Act.
    (b) Arises with respect to the assessment or collection of any 
customs duty, or the detention of any goods or merchandise by any U.S. 
officer of customs or excise, or any other U.S. law enforcement 
officer. NOTE: This includes loss or damage to property detained by 
members of the Security Forces or Office of Special Investigation 
(OSI).
    (c) Is cognizable under U.S. admiralty and maritime law, to 
include:
    (1) The Suits in Admiralty Act, 46 U.S.C. 30901 and following.
    (2) The Death on the High Seas Act, 46 U.S.C. 30301 and following.
    (3) The Public Vessels Act, 46 U.S.C. 31101 and following.
    (4) EXCEPTION: Claims arising from noncombat activities may be paid 
under the MCA, even if they are also cognizable under paragraphs (c)(1) 
through (c)(3), of this section.
    (d) Arises out of assault, battery, false imprisonment, false 
arrest, malicious prosecution, or abuse of process. EXCEPTION: Unless 
such actions were committed by an investigative or law enforcement 
officer of the U.S. who is empowered by law to conduct searches, seize 
evidence, or make arrests for violations of federal law.
    (e) Arises out of libel, slander, misrepresentation, or deceit.
    (f) Arises out of an interference with contract rights.
    (g) Arises out of the combat activities of U.S. military forces.
    (h) Is for the personal injury or death of a member of the Armed 
Forces of the U.S. incident to the member's service.
    (i) Is for the personal injury or death of any person for workplace 
injuries covered by the Federal Employees' Compensation Act, 5 U.S.C. 
8101, and following.
    (j) Is for the personal injury or death of any employee of the 
U.S., including nonappropriated fund employees, for workplace injuries 
covered by the Longshore and Harbor Workers' Compensation Act, 33 
U.S.C. 901, and following.
    (k) Is for a taking of property, e.g., by technical trespass or 
over flight of aircraft.
    (l) Is for patent or copyright infringement.
    (m) Results wholly from the negligent or wrongful act of the 
claimant.
    (n) Is for the reimbursement of medical, hospital, or burial 
expenses furnished at the expense of the U.S., either directly or 
through contractual payments.
    (o) Arises from contractual transactions, express or implied 
(including rental agreements, sales agreements, leases, and easements), 
that:
    (1) Are payable or enforceable under oral or written contracts; or
    (2) Arise out of an irregular procurement or implied contract.
    (p) Is for the personal injury or death of military or civilian 
personnel of a foreign government incident to their service.
    (q) Is based on an act or omission of an employee of the 
government, exercising due care, in the execution of a statute or 
regulation, whether or not such statute or regulation is valid. Do not 
deny claims solely on this exception without the prior approval of 
USAF/JACC. Claims under the noncombat activities provision of this 
subpart may be paid even if this paragraph applies. Is based on the 
exercise or performance of, or the failure to exercise or perform, a 
discretionary function or duty on the part of a federal agency or a 
federal government employee, whether or not the discretion involved is 
abused. Do not deny claims solely on this exception without the prior 
approval of USAF/JACC. EXCEPTION: Claims under the noncombat activities 
provision may be paid even if this paragraph applies.
    (r) Is not in the best interests of the U.S., is contrary to public 
policy, or is otherwise contrary to the basic intent of the MCA. 
Examples include, but are not limited to, when a claimant's criminal 
conduct or failure to comply with a nonpunitive regulation is a 
proximate cause of the loss. Prior approval must be obtained from USAF/
JACC before denying claims solely on this exception.
    (s) Arises out of an act or omission of any employee of the 
government in administering the provisions of the Trading With the 
Enemy Act, 50 U.S.C. app. 1-44.
    (t) Is for damages caused by the imposition or establishment of a 
quarantine by the U.S.
    (u) Arises from the fiscal operations of the Department of the 
Treasury or from the regulation of the monetary system.
    (v) Arises from the activities of the Tennessee Valley Authority.
    (w) Arises from the activities of a federal land bank, a federal 
intermediate credit bank, or a bank for cooperatives.
    (x) Is for the personal injury or death of any government 
contractor employee for whom benefits are available under any worker's 
compensation law, or under any contract or agreement providing employee 
benefits through insurance, local law, or custom when the U.S. pays 
insurance either directly or as part of the consideration under the 
contract. Only USAF/JACC may act on these claims.
    (y) Is for damage, injury or death from or by flood or flood waters 
at any place.
    (z) Is for damage to property or other losses of a state, 
commonwealth, territory, or the District of Columbia

[[Page 17626]]

caused by Air National Guard personnel engaged in training or duty 
under 32 U.S.C. 316, 502, 503, 504, or 505 who are assigned to a unit 
maintained by that state, commonwealth, territory, or the District of 
Columbia.
    (aa) Is for damage to property or for any death or personal injury 
arising out of activities of any federal agency or employee of the 
government in carrying out the provisions of the Disaster Relief Act of 
1974 (42 U.S.C. 5121, et seq.), as amended.
    (bb) Arises from activities that present a political question.
    (cc) Arises from private, as distinguished from government, 
transactions.
    (dd) Is based solely on compassionate grounds.
    (ee) Is for rent, damage, or other expenses or payments involving 
the regular acquisition, use, possession, or disposition of real 
property or interests therein by and for the U.S.
    (ff) Is presented by a national, or a corporation controlled by a 
national, of a country at war or engaged in armed conflict with the 
U.S., or any country allied with such enemy country unless the 
appropriate settlement authority determines that the claimant is, and 
at the time of the incident was, friendly to the U.S. A prisoner of war 
or an interned enemy alien is not excluded as to a claim for damage, 
loss, or destruction of personal property in the custody of the U.S. 
otherwise payable. Forward claims considered not payable under this 
paragraph, with recommendations for disposition, to USAF/JACC.
    (gg) Arises out of the loss, miscarriage, or negligent transmission 
of letters or postal matter by the U.S. Postal Service or its agents or 
employees.
    (hh) Is for damage to or loss of bailed property when the bailor 
specifically assumes such risk.
    (ii) Is for property damage, personal injury, or death occurring in 
a foreign country to an inhabitant of a foreign country.
    (jj) Is for interest incurred prior to the payment of a claim.
    (kk) Arises out of matters which are in litigation against the U.S.
    (ll) Is for attorney fees or costs in connection with pursuing an 
administrative or judicial remedy against the U.S. or any of its 
agencies.
    (mm) Is for bail, interest or inconvenience expenses incurred in 
connection with the preparation and presentation of the claim.
    (nn) Is for a failure to use a duty of care to keep premises owned 
or under the control of the U.S. safe for use for any recreational 
purpose, or for a failure by the U.S. to give any warning of hazardous 
conditions on such premises to persons entering for a recreational 
purpose unless there is a willful or malicious failure to guard or warn 
against a dangerous condition, or unless consideration was paid to the 
U.S. (including a nonappropriated fund instrumentality) to use the 
premises.
0
35. Revise newly redesignated Sec.  842.41 to read as follows:


Sec.  842.41  Applicable law.

    This paragraph provides the existing law governing liability, 
measurement of liability and the effects of settlement upon awards.
    (a) Many of the exclusions in this subpart are based upon the 
wording of 28 U.S.C. 2680 or other federal statutes or court decisions 
interpreting the Federal Tort Claims Act. Federal case law interpreting 
the same exclusions under the Federal Tort Claims Act is applied to the 
Military Claims Act. Where state law differs with federal law, federal 
law prevails.
    (b) Extent of liability. Where the claim arises is important in 
determining the extent of liability.
    (1) When a claim arises in the United States, its territories or 
possessions, the same law as if the claim was cognizable under the FTCA 
will be applied.
    (2) Claims in foreign countries. In claims arising in a foreign 
country, where the claim is for personal injury, death, or damage to or 
loss of real or personal property caused by an act or omission alleged 
to be negligent, wrongful, or otherwise involving fault of military 
personnel or civilian officers or employees of the United States acting 
within the scope of their employment, liability or the United States is 
determined according federal case law interpreting the FTCA. Where the 
FTCA requires application of the law of the place where the act or 
omission occurred, settlement authorities will use the rules set forth 
in the currently adopted edition of the Restatement of the Law, 
published by the American Law Institute, to evaluate the liability of 
the Air Force, subject to the following rules:
    (i) Foreign rules and regulations governing the operation of motor 
vehicles (rules of the road) are applied to the extent those rules are 
not specifically superseded or preempted by United States military 
traffic regulations.
    (ii) Absolute or strict liability will not apply for claims not 
arising from noncombat activities.
    (iii) Hedonic damages are not payable.
    (iv) The collateral source doctrine does not apply.
    (v) Joint and several liability does not apply. Payment will be 
made only upon the portion of loss, damage, injury or death 
attributable to the Armed Forces of the United States.
    (vi) Future economic loss will be discounted to present value after 
deducting for federal income taxes and, in cases of wrongful death, 
personal consumption.
    (c) Do not approve payment for:
    (i) Punitive damages.
    (ii) Cost of medical or hospital services furnished at the expense 
of the United States.
    (iii) Cost of burial expenses paid by the United States.
    (d) Settlement by insurer or joint tortfeasor. When settlement is 
made by an insurer or joint tortfeasor and an additional award is 
warranted, an award may be made if both of the following are present:
    (1) The United States is not protected by the release executed by 
the claimant.
    (2) The total amount received from such source is first deducted.
0
36. Amend newly redesignated Sec.  842.42, by revising paragraphs (a) 
and (c) to read as follows:


Sec.  842.42  Appeal of final denials.

    (a) A claimant may appeal the final denial of the claim. The 
claimant sends the request, in writing, to the settlement authority 
that issued the denial letter within 60 days of the date the denial 
letter was mailed. The settlement authority may waive the 60 day time 
limit for good cause.
* * * * *
    (c) Where the settlement authority does not reach a final agreement 
on an appealed claim, he or she sends the entire claim file to the next 
higher settlement authority, who is the appellate authority for that 
claim. Any higher settlement authority may act upon an appeal.
* * * * *

Subpart G--[Redesignated as Subpart E]

0
37. Redesignate subpart G, consisting of Sec. Sec.  842.55 through 
842.68, as subpart E, consisting of Sec. Sec.  842.45 through 842.58, 
respectively.
0
38. Revise newly redesignated Sec.  842.47 to read as follows:


Sec.  842.47  Delegations of authority.

    (a) Settlement authority. (1) The Secretary of the Air Force has 
the authority to:
    (i) Settle claims for payment of $100,000 or less.
    (ii) Settle claims for more than $100,000, pay the first $100,000, 
and

[[Page 17627]]

report the excess to the Department of the Treasury for payment.
    (iii) Deny claims in any amount.
    (2) The Judge Advocate General, Deputy Judge Advocate General, 
Director of Civil Law, and the Chief, Deputy Chief and Branch Chiefs, 
Claims and Tort Litigation Staff are FCCs and have delegated authority 
to:
    (i) Settle claims for payment of $100,000 or less.
    (ii) Deny claims in any amount.
    (3) The SJAs of the Air Force component commander of the U.S. 
geographic combatant commands are FCC for claims arising in their 
respective combatant command AORs and may deny claims of $50,000 or 
less and will pay claims filed in any amount when payment is for 
$50,000 or less.
    (b) Redelegating settlement authority. A settlement authority 
appointed as a FCC in paragraph (a) of this section may appoint one or 
more subordinate judge advocates or civilian attorneys to act as FCC, 
and redelegate all or part of that settlement authority to such 
persons.
    (c) Settlement negotiations. A settlement authority may settle a 
claim in any sum within its settlement authority, regardless of the 
amount claimed. Send uncompromised claims in excess of the delegated 
authority through claims channels to the level with settlement 
authority. Unsuccessful negotiations at one level do not bind higher 
authority.
    (d) Special exceptions. Do not settle claims for medical 
malpractice without HQ USAF/JACC approval.
0
39. Amend newly redesignated Sec.  842.48, by revising paragraph (a) to 
read as follows:


Sec.  842.48  Filing a claim.

    (a) How and when filed. A claim is filed when the Air Force 
receives from a claimant or authorized agent a properly completed SF 95 
or other signed and written demand for money damages in a sum certain. 
A claim may be presented orally only if oral claims are the custom in 
the country where the incident occurred and the claimant is 
functionally illiterate. In any case where an oral claim is made, 
claims personnel must promptly reduce the claim to writing with all 
particulars carefully noted. A claim belonging to another agency is 
promptly transferred to the appropriate agency.
* * * * *
0
40. Revise newly redesignated Sec.  842.49 to read as follows:


Sec.  842.49  Advance payments.

    Subpart P outlines procedures for advance payments.
0
41. Amend newly redesignated Sec.  842.50, by revising paragraph (a) to 
read as follows:


Sec.  842.50  Statute of limitations.

    (a) A claim must be presented to the Air Force within 2 years after 
it accrues. It accrues when the claimant discovers or reasonably should 
have discovered the existence of the act that resulted in the claimed 
loss or injury.
* * * * *
0
42. Amend newly redesignated Sec.  842.52, by revising paragraphs (a) 
and (b) to read as follows:


Sec.  842.52  Who are proper claimants.

    (a) Foreign nationals. In a wrongful death case, if the decedent is 
an inhabitant of a foreign country, even though his or her survivors 
are U.S. inhabitants, the FCA will apply.
    (b) U.S. nationals residing abroad, unless the claim arises from a 
benefit, privilege or service provided to them by the U.S. Government, 
or they reside in the foreign country primarily because they are 
employed directly by the United States, or sponsored by or accompanying 
such a person, or employed by a U.S. civilian contractor in furtherance 
of a contract with the U.S. Government, or sponsored by or accompanying 
such a person.
* * * * *
0
43. Amend newly redesignated Sec.  842.53 by revising paragraphs (b), 
(c), and (e) to read as follows:


Sec.  842.53  Who are not proper claimants.

* * * * *
    (b) Persons determined to be U.S. inhabitants. U.S. inhabitants 
include dependents of U.S. military personnel and U.S. Government 
civilian employees.
    (c) Foreign military personnel suffering personal injury, or death 
arising incident to service or pursuant to combined and/or joint 
military operations. Such operations include, but are not limited to, 
military exercises and United Nations, NATO, and other regional 
peacekeeping and humanitarian missions.
* * * * *
    (e) National governments and their political subdivisions engaging 
in war or armed conflict with the United States or its allies. This 
includes factions that have not necessarily been recognized by the 
international community as a legitimate nation state.
* * * * *
0
44. Amend newly redesignated Sec.  842.54 by:
0
a. Revising paragraph (a).
0
b. Removing paragraph (b).
0
c. Redesignating paragraph (c) as paragraph (b).
    The revision reads as follows:


Sec.  842.54  Payment criteria.

    The following criteria is considered before determining liability.
    (a) The incident causing the damage or injury must arise in a 
foreign country and be caused by noncombatant activities of the U.S. 
Armed Forces or by the negligent or wrongful acts of civilian employees 
or military members of the Armed Forces.
    (1) It is a prerequisite to U.S. responsibility if the employee 
causing the damage or injury is a local inhabitant, a prisoner of war, 
or an interned enemy alien. These persons are ``employees'' within the 
meaning of the Foreign Claims Act (FCA) only when in the service of the 
United States. Ordinarily, a slight deviation as to time or place does 
not constitute a departure from the scope of employment. The purpose of 
the activity and whether it furthers the general interest of the United 
States is considered. If the claim arose from the operation or use of a 
U.S. Armed Forces vehicle or other equipment by such a person, pay it 
provided local law imposes liability on the owner of the vehicle or 
other equipment in the circumstances involved.
    (2) It is immaterial when the claim arises from the acts or 
omissions of any U.S. Armed Forces member or employee not listed in 
Sec.  842.64(c)(1) of this part. The Act imposes responsibility on the 
United States when it places a US citizen or non-U.S. citizen employee 
in a position to cause the injury or damage. If the cause is a criminal 
act clearly outside the scope of employment, ordinarily pay the claim 
and consider disciplinary action against the offender.
* * * * *
0
45. Amend newly redesignated Sec.  842.55 by:
0
a. Revising paragraphs (a), (c), (f), (h), (m), (o) and (q).
0
b. Adding paragraphs (s) and (t).
    The revisions and additions read as follows:


Sec.  842.55  Claims not payable.

    A claim is not payable when it:
    (a) Is waived under an applicable international agreement, or 
pursuant to an applicable international agreement, a receiving state 
should adjudicate and pay the claim. However, if a foreign government 
subject to such an international agreement disputes its legal 
responsibilities under the agreement, and the claimant has no

[[Page 17628]]

other means of compensation, USAF/JACC may authorize payment.
* * * * *
    (c) Is for attorney fees, punitive damages, a judgment or interest 
on a judgment, bail, or court costs. FCC should consider providing 
early notice to claimants that attorney fees are not payable as an item 
of damage under the FCA.
* * * * *
    (f) Is a paternity claim.
* * * * *
    (h) Results wholly from the negligent or wrongful act of the 
claimant or agent.
* * * * *
    (m) Results from an action by an enemy, or directly or indirectly 
from an act of the U.S. armed forces in combat, except that a claim may 
be allowed if it arises from an accident or malfunction incident to the 
operation of an aircraft of the U.S. armed forces, including its 
airborne ordnance, indirectly related to combat, and occurring while 
preparing for or going to, or returning from a combat mission.
* * * * *
    (o) Arises out of personal activities of family members, guests, 
servants, or activities of the pets of members and employees of the 
U.S. Armed Forces.
* * * * *
    (q) Is covered under U..S admiralty or maritime laws, unless 
authorized by The Judge Advocate General or Chief, Claims and Tort 
Litigation Staff.
* * * * *
    (s) Is not in the best interest of the United States, is contrary 
to public policy, or otherwise contrary to the basic intent of the FCA. 
Claims considered not payable on this basis will be forwarded to USAF/
JACC for final decision.
    (t) Is presented by a national, or a corporation controlled by a 
national, of a country at war or engaged in armed conflict with the 
United States, or any country allied with such enemy country unless the 
settlement authority determines the claimant is, and at the time of the 
incident was, friendly to the United States. EXCEPTION: A prisoner of 
war or interned enemy alien is not excluded from filing a claim for 
damage, loss, or destruction of personal property within the U.S. Armed 
Forces' custody if the claim is otherwise payable.
0
46. Revise newly redesignated Sec.  842.56 to read as follows:


Sec.  842.56  Applicable law.

    This section provides guidance to determine the applicable law for 
assessment of liability.
    (a) In adjudicating FCA claims, settlement authorities will follow 
the law, customs, and standards of the country where the claim arose, 
except:
    (1) Causation is determined based upon general principles of U.S. 
tort law found in federal case law and standard legal publications.
    (2) Joint and several liability does not apply. Payment is based 
solely on the portion of loss, damage, injury or death attributable to 
the U.S. Armed Forces.
    (3) If lost income or lost profits is recoverable under the law 
where the claim arose, they shall be limited to net lost income or net 
lost profits, taking into account appropriate deductions for taxes, 
regular business expenditures, and in the case of wrongful death, 
personal consumption during the loss period.
    (b) Settlement authorities will not deduct compensation from 
collateral sources except for:
    (1) Direct payments by a member or civilian employee of the U.S. 
Armed Forces for damages (not solatia).
    (2) Any payments recovered or recoverable from an insurance policy 
when premiums were paid, directly or indirectly, by the United States, 
or a member or civilian employee of the U.S. Armed Forces; or when the 
member or employee has the benefit of the insurance (such as when a 
U.S. member or employee borrows a vehicle of a local national, and the 
vehicle carries insurance for the benefit of any driver with permission 
to drive the vehicle).
0
47. Revise newly redesignated Sec.  842.57 to read as follows:


Sec.  842.57  Reconsideration of final denials.

    This section provides the procedures used to reconsider a final 
denial.
    (a) An FCC has the inherent authority to reconsider a final 
decision. The mere fact that a request for reconsideration is received 
does not obligate the settlement authority to reopen the claim.
    (b) The FCC does not mention a reconsideration right in the 
original denial letter.
    (c) A settlement authority must reconsider the final action when 
there is:
    (1) New and material evidence concerning the claim or,
    (2) Obvious errors in the original decision.
    (d) The FCC must document in the claim file the reason for 
reconsideration.
    (e) A FCC above the original settlement authority may direct a 
claim be forwarded to a higher FCC for reconsideration.
0
48. Revise newly redesignated Sec.  842.58 to read as follows:


Sec.  842.58  Right of subrogation, indemnity, and contribution.

    The Air Force has all the rights of subrogation, indemnity and 
contribution, as local law permits. However, settlement authorities 
will not seek contribution or indemnity from U.S. military members or 
civilian employees whose conduct gave rise to U.S. government 
liability, or whenever it would be harmful to international relations.

Subpart H--[Redesignated as Subpart F]

0
49. Redesignate subpart H, consisting of Sec. Sec.  842.69 through 
842.72, as subpart F, consisting of Sec. Sec.  842.59 through 842.62, 
respectively.
0
50. Revise newly redesignated Sec.  842.59 to read as follows:


Sec.  842.59  Scope of this subpart.

    This subpart governs Air Force actions in investigating, 
processing, and settling claims under the International Agreement 
Claims Act.
0
51. Amend newly redesignated Sec.  842.60 by revising paragraphs (a), 
(d), (e), (f) and (g) to read as follows:


Sec.  842.60  Definitions.

* * * * *
    (a) Civilian component. Civilian personnel accompanying and 
employed by an international agreement contracting force. Local 
employees, contractor employees, or members of the American Red Cross 
are not a part of the civilian component unless specifically included 
in the agreement.
* * * * *
    (d) Legally responsible. A term of art providing for settlement of 
claims under cost sharing international agreements in accordance with 
the law of the receiving state. Often, employees who are local 
inhabitants, not part of the civilian component of the force, could 
cause the sending state to be legally responsible under a respondeat 
superior theory.
    (e) Receiving state. The country where the force or civilian 
component of another contracting party is temporarily located. It is 
often thought of as the ``host nation.''
    (f) Sending state. The country sending the force or civilian 
component to the receiving State. In cases where U.S. personnel are 
stationed in a foreign country, the U.S. is the sending state.
    (g) Third parties. A term of art used in International Agreements. 
Parties other than members of the force and civilian component of the 
sending or receiving States. Dependents, tourists, and other 
noninhabitants of a foreign country are third parties (and therefore

[[Page 17629]]

can generally make a claim under a SOFA) unless the international 
agreement, or an understanding between the countries involved, 
specifically excludes them.
0
52. Revise newly redesignated Sec.  842.61 to read as follows:


Sec.  842.61  Delegations of authority.

    (a) Staff Judge Advocates of the Air Force component commands of 
the U.S. geographic combatant commands will, within their combatant 
command AORs, fulfill U.S. obligations concerning claims abroad subject 
to 10 U.S.C. 2734a for which the Air Force has settlement authority. 
Consistent with 10 U.S.C. 2734a and the international agreement, they 
may reimburse or pay the pro rata share of a claim as agreed, or if 
inconsistent with the IACA or the international agreement, they may 
object to a bill presented,
    (b) The Secretary of the Air Force, The Judge Advocate General, the 
Deputy Judge Advocate General, The Director of Civil Law and Chief of 
the Claims and Tort Litigation Division may also exercise settlement 
authority under 10 U.S.C. 2734a.
    (c) Redelegation of authority. A settlement authority may 
redelegate his or her authority to a subordinate judge advocate or 
civilian attorney in writing.
    (d) Authority to reduce, withdraw, and restore settlement 
authority. Any superior settlement authority may reduce, withdraw, or 
restore delegated authority.
0
53. Amend newly redesignated Sec.  842.62 by revising paragraph (b) to 
read as follows:


Sec.  842.62  Filing a claim.

* * * * *
    (b) Claims arising in the United States. The claimant files tort 
claims arising from the act or omission of military or civilian 
personnel of another contracting party at any U.S. military 
installation. The Staff Judge Advocate for the installation where such 
military or civilian personnel is assigned or attached will promptly 
notify the Foreign Claims Branch of USAF/JACC as well as the Commander, 
U.S. Army Claims Service. If the files said claim at an installation 
other than the location where said military or civilian personnel is 
assigned, the Staff Judge Advocate for that installation will promptly 
forward the claim to the appropriate installation Staff Judge Advocate.

Subpart I--[Redesignated as Subpart G]

0
54. Redesignate subpart I, consisting of Sec. Sec.  842.73 through 
842.81 as subpart G, consisting of Sec. Sec.  842.63 through 842.71, 
respectively.
0
55. Revise newly redesignated Sec.  842.63 to read as follows:


Sec.  842.63  Scope of this subpart.

    This subpart explains how to settle and pay claims against the 
United States, for property damage, personal injury, or death incident 
to the use of a government vehicle or any other government property on 
a government installation which are not payable under any other 
statute.
0
56. Amend newly redesignated Sec.  842.65 by revising paragraph (a)(5) 
to read as follows:


Sec.  842.65  Delegations of authority.

    (a) * * *
    (5) SJA of the Air Force component commands of the U.S. geographic 
combatant commands.
* * * * *
0
57. Amend newly redesignated Sec.  842.68 by:
0
a. Removing the brackets in the second sentence of paragraph (a).
0
b. Revising paragraph (c).
    The revision reads as follows:


Sec.  842.68  Claims payable.

* * * * *
    (c) Arose from the use of a government vehicle at any place or from 
the use of other government property on a government installation, and
* * * * *
0
58. Amend newly redesignated Sec.  842.69 by adding paragraph (e) to 
read as follows:


Sec.  842.69  Claims not payable.

* * * * *
    (e) For pain and suffering or other general damages.
0
59. Revise newly redesignated Sec.  842.71 to read as follows:


Sec.  842.71  Settlement agreement.

    Do not pay a claim unless the claimant accepts the amount offered 
in full satisfaction of the claim and signs a settlement agreement to 
that effect, in which the claimant agrees to release any and all claims 
against the United States, its employees and agents arising from the 
incident in question. Use the settlement agreement approved for use by 
the Department of Justice for the settlement of FTCA claims, tailored 
to this claim.

Subpart J--[Redesignated as Subpart H]

0
60. Redesignate subpart J, consisting of Sec. Sec.  842.82 through 
842.85, as subpart H, consisting of Sec. Sec.  842.72 through 842.75, 
respectively.
0
61. Amend newly redesignated Sec.  842.74 by:
0
a. Revising paragraph (a)(1)(i).
0
b. Removing and reserving paragraph (a)(1)(ii) and removing paragraph 
(a)(1)(iii).
0
c. Revising paragraph (b)(3)(iv).
    The revisions read as follows:


Sec.  842.74  Delegations of authority.

    (a) * * *
    (1) * * *
    (i) Settle or deny a claim in any amount. Settlements for payment 
of more than $500,000 are certified to Congress for payment.
* * * * *
    (b) * * *
    (3) * * *
    (iv) The Chief and Deputy Chief, Claims and Tort Litigation 
Division.
0
62. In newly redesignated Sec.  842.75, add paragraph (c) to read as 
follows:


Sec.  842.75  Reconsidering claims against the United States.

* * * * *
    (c) There is no time limit for submitting a request for 
reconsideration, but it is within the discretion of the settlement 
authority to decline to reconsider a claim based on the amount of time 
passed since the claim was originally denied.

Subpart K--[Removed]

0
63. Remove subpart K, consisting of Sec. Sec.  842.86 through 842.91.
0
64. Add new subpart I, consisting of Sec. Sec.  842.76 through 842.79.
Subpart I--Claims Under the Federal Tort Claims Act (28 U.S.C. 1346(b), 
2402, 2671, 2672, 2674-2680)
Sec.
842.76 Scope of this subpart.
842.77 Delegations of authority.
842.78 Settlement agreements.
842.79 Administrative claim; when presented.

Subpart I--Claims Under the Federal Tort Claims Act (28 U.S.C. 
1346(b), 2402, 2671, 2672, 2674-2680)


Sec.  842.76  Scope of this subpart.

    This subpart, promulgated under the authority of 28 CFR 14.11, 
governs claims against the United States for property damage, personal 
injury, or death, from the negligent or wrongful acts or omission of 
Air Force military or civilian personnel while acting within the scope 
of their employment.


Sec.  842.77  Delegations of authority.

    (a) Settlement authority. (1) The following individuals are 
delegated the full authority of the Secretary of the Air Force to 
settle and deny claims:

[[Page 17630]]

    (i) The Judge Advocate General.
    (ii) The Deputy Judge Advocate General.
    (iii) The Director of Civil Law.
    (iv) The Division Chief of Claims and Tort Litigation.
    (v) The Division Chief of Environmental Law and Litigation.
    (b) Redelegation of authority. A settlement authority may be 
redelegated, in writing, to a subordinate judge advocate or civilian 
attorney. The Chief, AFLOA/JACC may redelegate up to $25,000, in 
writing, to paralegals assigned to AFLOA/JACC and, upon request, may 
authorize installation Staff Judge Advocates to redelegate their 
settlement authority to paralegals under their supervision.
    (c) Authority to reduce, withdraw, and restore settlement 
authority. Any superior settlement authority may reduce, withdraw, or 
restore delegated authority.
    (d) Settlement negotiations. A settlement authority may settle a 
claim filed in any amount for a sum within the delegated authority. 
Unsettled claims in excess of the delegated authority will be sent to 
the next highest level with settlement authority. Unsuccessful 
negotiations at one level do not bind higher authority.


Sec.  842.78  Settlement agreements.

    The claimant must sign a settlement agreement and general release 
before any payment is made.


Sec.  842.79  Administrative claim; when presented.

    When the Air Force is the proper agency to receive a claim pursuant 
to 28 CFR 14.2(b), for purposes of the provisions of 28 U.S.C. 2401(b), 
2672 and 2675, a claim shall be deemed to have been presented when it 
is received by:
    (a) The office of the Staff Judge Advocate of the Air Force 
installation nearest the location of the incident; or
    (b) The Claims and Tort Litigation Division, 1500 West Perimeter 
Road, Suite 1700, Joint Base Andrews, MD 20762.

Subpart L--[Redesignated as Subpart J]

0
65. Redesignate subpart L, consisting of Sec. Sec.  842.92 through 
842.99, as subpart J, consisting of Sec. Sec.  842.80 through 842.87, 
respectively.
0
66. Revise newly redesigated Sec.  842.80 to read as follows:


Sec.  842.80  Scope of this subpart.

    This subpart describes how to assert, administer, and collect 
claims for damage to or loss or destruction of government property and 
lost wages of Air Force servicemembers through negligent or wrongful 
acts. It does not cover admiralty, hospital recovery, or 
nonappropriated fund claims.
0
67. Amend newly redesignated Sec.  842.81 by revising paragraph (a) to 
read as follows:


Sec.  842.81  Delegations of authority.

    (a) Settlement authority. (1) The following individuals have 
delegated authority to settle, compromise, suspend, or terminate action 
on claims asserted for $100,000 or less and to accept full payment on 
any claim:
    (i) The Judge Advocate General.
    (ii) The Deputy Judge Advocate General.
    (iii) The Director of Civil Law.
    (iv) Chief, Deputy Chief, and Branch Chiefs, Claims and Tort 
Litigation Staff.
    (2) Installation staff judge advocates have authority to assert 
claims in any amount, accept full payment on any claim and to 
compromise, suspend or terminate action on claims asserted for $25,000 
or less.
* * * * *
0
68. Amend newly redesignated Sec.  842.82 by revising paragraphs 
(a)(2), (c), and (e) to read as follows:


Sec.  842.82  Assertable claims.

* * * * *
    (a) * * *
    (2) Less than $100 but collection is practicable and economical.
* * * * *
    (c) The claim is for property damage arising from the same incident 
as a hospital recovery claim.
* * * * *
    (e) The claim is assertable as a counterclaim under an 
international agreement. (The claim should be processed under subpart G 
of this part).
* * * * *
0
69. Amend newly redesignated Sec.  842.83 by revising paragraph (b)(2) 
and adding paragraph (f) to read as follows:


Sec.  842.83  Non-assertable claims.

* * * * *
    (b) * * *
    (2) Caused by a person who has accountability and responsibility 
for the damaged property under the Report of Survey system.
* * * * *
    (f) Loss or damage caused by an employee of another federal agency 
while the employee was acting in the scope of his employment.
0
70. Revise newly redesignated Sec.  842.85 to read as follows:


Sec.  842.85  Referring a claim to the U.S. Attorney or the Department 
of Justice.

    If collection efforts are unsuccessful, AFLOA/JACC may refer a 
claim to the appropriate U.S. Attorney's Office or the Department of 
Justice for initiation of a lawsuit.

Subpart M--[Redesignated as Subpart K]

0
71. Redesignate subpart M, consisting of Sec. Sec.  842.100 through 
842.114, as subpart K, consisting of Sec. Sec.  842.88 through 842.102, 
respectively
0
72. Revise newly redesignated Sec.  842.88 to read as follows:


Sec.  842.88  Scope of this subpart.

    This subpart establishes policies and procedures for all 
administrative claims under the National Guard Claims Act for which the 
Air Force has assigned responsibility. Unless otherwise outlined in 
this subpart, follow procedures as outlined in Subpart E for claims 
arising out of noncombat activities.
0
73. Revise newly redesignated Sec.  842.89 to read as follows:


Sec.  842.89  Definitions.

    (a) Air National Guard (ANG). The federally recognized Air National 
Guard of each state, the District of Columbia, the Commonwealth of 
Puerto Rico, the Virgin Islands, and Guam.
    (b) ANG member. An ANG member is one who is performing duty under 
32 U.S.C., section 316, 502, 503, 504, or 505 for which the member is 
entitled to pay from the United States or for which the member has 
waived pay from the United States.
    (c) ANG duty status--(1) Active federal service. ANG members may 
serve on active Federal duty under 10 U.S.C. to augment the active Air 
Force under certain circumstances or for certain types of duty or 
training (e.g., overseas training exercises and ANG alert duty). Duty 
under 10 U.S.C. does not fall under this subpart.
    (2) Federally funded duty. ANG members perform specified federally 
funded duty or training under 32 U.S.C. such as weekend drills, annual 
training, field exercises, range firing, military schooling, full time 
unit support, or recruiting duties. Duty under 32 U.S.C. falls under 
this subpart for noncombat activities.
    (3) State duty. State duty is duty not authorized by federal law 
but required by the governor of the state and paid for from state 
funds. Such duty includes civil emergencies (natural or other 
disasters), civil disturbances (riots and strikes), and transportation 
requirements for official state functions,

[[Page 17631]]

public health, or safety. State duty does not fall under this subpart.
    (d) ANG technicians. An ANG technician is a Federal employee 
employed under 32 U.S.C. 709. Tort claims arising out of his or her 
activity are settled under the Federal Tort Claims Act (FTCA).
0
74. Amend newly redesignated Sec.  842.90 by:
0
a. Removing the introductory text;
0
b. Revising paragraphs (a)(4) and (5) and (b).
0
c. Removing paragraph (f)(1) and redesignating paragraphs (f)(2) and 
(3) as (f)(1) and (2), respectively.
    The revisions read as follows:


Sec.  842.90  Delegations of authority.

    (a) * * *
    (4) The SJAs of the Air Force component commander of the U.S. 
Geographic combatant commands for claims arising within their 
respective combatant command areas of responsibility have delegated 
authority to settle claims payable or to deny claims filed for $25,000 
or less.
    (5) SJAs of GCMs in PACAF and USAFE have delegated authority to 
settle claims payable, and deny claims filed, for $15,000 or less.
    (b) Redelegation of authority. A settlement authority may 
redelegate up to $25,000 of settlement authority to a subordinate judge 
advocate or civilian attorney. This redelegation must be in writing and 
can be for all claims or limited to a single claim. The Chief, AFLOA/
JACC may redelegate up to $25,000, in writing, to paralegals assigned 
to AFLOA/JACC and, upon request, may authorize installation Staff Judge 
Advocates to redelegate their settlement authority to paralegals under 
their supervision.
* * * * *
0
75. Revise newly redesignated Sec.  842.91 to read as follows:


Sec.  842.91  Filing a claim.

    (a) Elements of a proper claim. A claim is must be filed on a 
Standard Form 95 or other written document. It must be signed by the 
Claimant or authorized agent, be for money damages in a sum certain, 
and lay out a basic statement as to the nature of the claim that will 
allow the Air Force to investigate the allegations contained therein.
    (b) Amending a claim. A claimant may amend a claim at any time 
prior to final action. To amend a claim the claimant or his or her 
authorized agent must submit a written, signed demand.
0
76. Revise newly redesignated Sec.  842.92 to read as follows:


Sec.  842.92  Advance payments.

    Subpart P of this part sets forth procedures for such payments.
0
77. Revise newly redesignated Sec.  842.93 to read as follows:


Sec.  842.93  Statute of limitations.

    (a) A claim must be filed in writing within 2 years after it 
accrues. It is deemed to be filed upon receipt by The Judge Advocate 
General, USAF/JACC, or a Staff Judge Advocate of the Air Force. A claim 
accrues when the claimant discovers or reasonably should have 
discovered the existence of the act that resulted in the claimed loss. 
The same rules governing accrual pursuant to the Federal Tort Claims 
Act should be applied with respect to the National Guard Claims Act. 
Upon receipt of a claim that properly belongs with another military 
department, the claim is promptly transferred to that department.
    (b) The statutory time period excludes the day of the incident and 
includes the day the claim was filed.
    (c) A claim filed after the statute of limitations has run is 
considered if the U.S. is at war or in an armed conflict when the claim 
accrues or if the U.S. enters a war or armed conflict after the claim 
accrues, and if good causes shows how the war or armed conflict 
prevented the claimant from diligently filing the claim within the 
statute of limitations. But in no case will a claim be considered if 
filed more than two years after the war or armed conflict ends.
0
78. Revise newly redesignated Sec.  842.94 to read as follows:


Sec.  842.94  Who may file a claim.

    The following individuals may file a claim under this subpart.
    (a) Owners of the property or their authorized agents may file 
claims for property damage.
    (b) Injured persons or their duly authorized agents may file claims 
for personal injury.
    (c) Duly appointed guardians of minor children or any other persons 
legally entitled to do so under applicable local law may file claims 
for minors' personal injuries.
    (d) Executors or administrators of a decedent's estate or another 
person legally entitled to do so under applicable local law, may file 
claims based on:
    (1) An individual's death.
    (2) A cause of action surviving an individual's death.
    (e) Insurers with subrogation rights may file claims for losses 
paid in full by them. The parties may file claims jointly or 
individually, to the extent of each party's interest, for losses 
partially paid by insurers with subrogation rights.
    (f) Authorized agents signing claims show their title or legal 
capacity and present evidence of authority to present the claims.
0
79. Revise newly redesignated Sec.  842.95 to read as follows:


Sec.  842.95  Who are proper claimants.

    (a) Citizens and inhabitants of the United States. U.S. inhabitants 
includes dependents of the U.S. military personnel and federal civilian 
employees temporarily outside the U.S. for purposes of U.S. government 
service.
    (b) U.S. military personnel and civilian employees. NOTE: These 
personnel are not proper claimants for claims for personal injury or 
death that occurred incident to their service.
    (c) Foreign military personnel when the damage or injury occurs in 
the U.S. Do not pay for claims under the MCA for personal injury or 
death of a foreign military personnel that occurred incident to their 
service.
    (d) States, state agencies, counties, or municipalities, or their 
political subdivisions.
    (e) Subrogees of proper claimants to the extent they have paid for 
the claim in question.
0
80. Revise newly redesignated Sec.  842.96 to read as follows:


Sec.  842.96  Who are not proper claimants.

    (a) Governments of foreign nations, their agencies, political 
subdivisions, or municipalities.
    (b) Agencies and Nonappropriated fund instrumentalities of the U.S. 
Government including the District of Columbia government.
    (c) Inhabitants of foreign countries.
    (d) The state, territory and its political subdivisions whose Air 
National Guard member caused the loss.
    (e) Subrogees of the claimants in paragraphs (a) through (d) of 
this section.
0
81. Revise newly redesignated Sec.  842.97 to read as follows:


Sec.  842.97  Claims payable.

    Claims arising from noncombat activities of the United States when 
caused by ANG members performing duty under 32 U.S.C. and acting within 
the scope of their employment, whether or not such injuries or damages 
arose out of their negligent or wrongful acts or omissions.
0
82. In newly redesignated Sec.  842.98, revise paragraphs (a), (b), and 
(c) to read as follows:


Sec.  842.98  Claims not payable.

* * * * *

[[Page 17632]]

    (a) Is covered by the FTCA, FCA, IACA, 10 U.S.C. 2734a and 2734b, 
Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 9801-9804, 9806, MCA, 
10 U.S.C. 2733, or covered under the Military Personnel and Civilian 
Employees' Claims Act (MPCECA), 31 U.S.C. 3701, 3721.
    (b) NGCA claims arising from noncombat activities in the U.S. are 
not covered by the FTCA because more elements are needed to state an 
FTCA claim than are needed to state a claim under the NGCA for 
noncombat activities. All FTCA claims are based on elements of 
traditional tort liability (i.e., duty, breach, causation, and 
damages); that is, they are fault based. Noncombat activity claims 
under the NGCA are based solely on causation and damages. Because NGCA 
claims for noncombat activities are not fault based, they are not 
covered by the FTCA.
    (c) See subpart E for other claims not payable.
* * * * *
0
83. Revise newly redesignated Sec.  842.99 to read as follows:


Sec.  842.99  Applicable law.

    (a) Many of the exclusions in this subpart are based upon the 
wording of 28 U.S.C. 2680 or other federal statutes or court decisions 
interpreting the Federal Tort Claims Act. Federal case law interpreting 
the same exclusions under the Federal Tort Claims Act is applied to the 
National Guard Claims Act. Where state law differs with federal law, 
federal law prevails.
    (b) Extent of liability. Where the claim arises is important in 
determining the extent of liability.
    (1) When a claim arises in the United States, its territories or 
possessions, the same law as if the claim was cognizable under the FTCA 
will be applied.
    (2) Claims in foreign countries. In claims arising in a foreign 
country, where the claim is for personal injury, death, or damage to or 
loss of real or personal property caused by an act or omission alleged 
to be negligent, wrongful, or otherwise involving fault of military 
personnel or civilian officers or employees of the United States acting 
within the scope of their employment, liability or the United States is 
determined according federal case law interpreting the FTCA. Where the 
FTCA requires application of the law of the place where the act or 
omission occurred, settlement authorities will use the rules set forth 
in the currently adopted edition of the Restatement of the Law, 
published by the American Law Institute, to evaluate the liability of 
the Air Force, subject to the following rules:
    (i) Absolute or strict liability will not apply for claims not 
arising from noncombat activities.
    (ii) Hedonic damages are not payable
    (iii) The collateral source doctrine will not apply
    (iv) Joint and several liability does not apply. Payment will be 
made only upon the portion of loss, damage, injury or death 
attributable to the Armed Forces of the United States.
    (v) Future economic loss will be discounted to present value after 
deducting for federal income taxes and, in cases of wrongful death, 
personal consumption.
    (c) Do not approve payment for:
    (1) Punitive damages.
    (2) Cost of medical or hospital services furnished at U.S. expense.
    (3) Cost of burial expenses paid by the United States.
    (d) Settlement by insurer or joint tortfeasor. When settlement is 
made by an insurer or joint tortfeasor and an additional award is 
warranted, an award may be made if both of the following are present:
    (1) The United States is not protected by the release executed by 
the claimant.
    (2) The total amount received from such source is first deducted.
0
84. In newly redesignated Sec.  842.100, revise paragraphs (a), (b), 
(c), and (d) to read as follows:


Sec.  842.100  Appeal of final denials.

* * * * *
    (a) A claimant may appeal the final denial of the claim. The 
claimant sends the request, in writing, to the settlement authority 
that issued the denial letter within 60 days of the date the denial 
letter was mailed. The settlement authority may waive the 60 day time 
limit for good cause.
    (b) Upon receipt of the appeal, the original settlement authority 
reviews the appeal.
    (c) Where the settlement authority does not reach a final agreement 
on an appealed claim, he or she sends the entire claim file to the next 
higher settlement authority, who is the appellate authority for that 
claim. Any higher settlement authority may act upon an appeal.
    (d) The decision of the appellate authority is the final 
administrative action on the claim.
0
85. Revise newly redesignated Sec.  842.101 to read as follows:


Sec.  842.101  Government's right of subrogation, indemnity, and 
contribution.

    The Air Force becomes subrogated to the rights of the claimant upon 
settling a claim. The Air Force has the rights of contribution and 
indemnity permitted by the law of the situs or under contract. Do not 
seek contribution or indemnity from ANG members whose conduct gave rise 
to Government liability.
0
86. Revise newly redesignated Sec.  842.102 to read as follows:


Sec.  842.102  Attorney fees.

    In the settlement of any claim pursuant to 32 U.S.C. 715 and this 
subpart, attorney fees will not exceed 20 percent of any award provided 
that when a claim involves payment of an award over $1,000,000, 
attorney fees on that part of the award exceeding $1,000,000 may be 
determined by the Secretary of the Air Force. For the purposes of this 
paragraph, an award is deemed to be the cost to the United States at 
the time of purchase of a structured settlement, and not its future 
value.

Subpart N--[Redesignated as Subpart L]

0
87. Redesignate subpart N, consisting of Sec. Sec.  842.115 through 
Sec. Sec.  842.125 as subpart L, consisting of Sec. Sec.  842.103 
through Sec. Sec.  842.113, respectively.
0
88. Revise newly redesignated Sec.  842.103 to read as follows:


Sec.  842.103  Scope of this subpart.

    This subpart explains how the United States asserts and settles 
claims for costs of medical care, against third parties under the 
Federal Medical Care Recovery Act (FMCRA) (10 U.S.C. 1095) and various 
other laws.
0
89. Amend newly redesignated Sec.  842.104 by revising paragraph (a) 
and adding paragraphs (h) and (i) to read as follows:


Sec.  842.104  Definitions.

* * * * *
    (a) Medical Cost Reimbursement Program Regional Field Offices. The 
Chief of the Medical Cost Reimbursement Program (MCRP) Branch 
determines and assigns geographic responsibility for all regional field 
offices. Each field office is responsible for investigating all 
potential claims and asserting claims within their jurisdiction for the 
cost of medical care provided by either a Medical Treatment Facility or 
at a civilian facility through Tricare.
* * * * *
    (h) Accrued pay. The total of all pay accrued to the account of an 
active duty member during a period when the member is unable to perform 
military duties. It does not include allowances.
    (i) Future care. Medical care reasonably expected to be provided or 
paid for in the future treatment of an

[[Page 17633]]

injured party as determined during the investigative process.
0
90. Revise newly redesignated Sec.  842.105 to read as follows:


Sec.  842.105  Delegations of authority.

    (a) Settlement authority. The following individuals have delegated 
authority to settle, compromise, or waive MCRP claims for $300,000 or 
less and to accept full payment on any claim:
    (1) The Judge Advocate General.
    (2) The Deputy Judge Advocate General.
    (3) The Director of Civil Law.
    (4) Chief, Claims and Tort Litigation Staff and the Chief, MCRP.
    (b) Redelegation of authority. The individuals described in 
paragraph (a) of this section may re-delegate a portion or all of their 
authority to subordinates, subject to the following limitations:
    (1) SJAs, when given Medical Cost Reimbursement (MCR) claims 
jurisdiction, are granted authority to waive, compromise, or settle 
claims in amounts of $25,000 or less. This authority may be re-
delegated in writing with authority to re-delegate to subordinates.
    (2) SJAs of numbered Air Forces, when given MCR claims 
jurisdiction, are granted authority to waive, compromise, or settle 
claims in amounts of $40,000 or less. This authority may be re-
delegated in writing with authority to re-delegate to subordinates.
    (3) SJAs of single base GCMs, the SJAs of GMCs in PACAF and USAFE, 
and the SJAs of each Air Force base, station, or fixed installation 
have delegated authority to compromise or waive claims for $15,000 or 
less and to accept full payment on any claim
    (c) Authority to assert a claim. Each settlement authority has 
authority to assert a claim in any amount for the reasonable value of 
medical care.
    (d) Authority to reduce, withdraw, and restore settlement 
authority. Any superior settlement authority may reduce, withdraw, or 
restore delegated authority.
    (e) Settlement negotiations. A settlement authority may settle a 
claim filed for an amount within the delegated settlement authority. 
Claims in excess of the delegated authority must be approved by the 
next higher settlement authority. Unsuccessful negotiations at one 
level do not bind higher authority.
    Note: Telephonic approvals, in the discretion of the higher 
settlement authority, are authorized.
    (f) Special exceptions. Only the Department of Justice (DOJ) may 
approve claims involving:
    (1) Compromise or waiver of a claim for more than $300,000.
    (2) Settlement previously referred to DOJ.
    (3) Settlement where a third party files suit against the U.S. or 
the injured party arising out of the same incident.
0
91. Revise newly redesignated Sec.  842.107 to read as follows:


Sec.  842.107  Nonassertable claims.

    The following are considered nonassertable claims and should not be 
asserted:
    (a) Claims against any department, agency, or instrumentality of 
the United States. ``Agency or instrumentality'' includes any self-
insured nonappropriated fund activity whether revenue producing, 
welfare, or sundry. The term does not include private associations.
    (b) Claims for care furnished a veteran by the Department of 
Veterans Affairs (VA) for service connected disability. However, claims 
may be asserted for the reasonable value of medical care an Air Force 
member receives prior to his or her discharge and transfer to the VA 
facility or when the Air Force has reimbursed the VA facility for the 
care.
    (c) Claims for care furnished a merchant seaman under 42 U.S.C. 
249. A claim against the seaman's employer should not be filed.
    (d) Government contractors. In claims in which the United States 
must reimburse the contractor for a claim according to the terms of the 
contract, settlement authorities investigate the circumstances 
surrounding the incident to determine if assertion is appropriate. If 
the U.S. is not required to reimburse the contractor, the MCR authority 
may assert a claim against the contractor.
    (e) Foreign governments. Settlement authorities investigate any 
claims that might be made against foreign governments, their political 
subdivisions, armed forces members or civilian employees.
    (f) U.S. personnel. Claims are not asserted against members of the 
uniformed services; employees of the U.S., its agencies or 
instrumentalities; or an individual who is a dependent of a service 
member or employee at the time of assertion unless they have insurance 
to pay the claim, they were required by law or regulation to have 
insurance which would have covered the Air Force, or their actions, 
which necessitated the medical treatment provided at government 
expense, constituted willful misconduct or gross negligence.
0
92. Amend newly redesignated Sec.  842.108 by revising paragraphs (a) 
and (b) to read as follows:


Sec.  842.108  Asserting the claim.

* * * * *
    (a) MCR personnel assert a claim against a tortfeasor or other 
third party using a formal letter on Air Force stationery. The 
assertion is made against all potential payers, including insurers. The 
demand letter should state the legal basis for recovery and 
sufficiently describe the facts and circumstances surrounding the 
incident giving rise to medical care. Applicable bases of recovery 
include U.S. status as a third-party beneficiary under various types of 
insurance policies, workers' compensation laws, no-fault laws, or other 
Federal statutes, including COB or FMCRA.
    (b) The MCR authority must promptly notify the injured parties or 
their legal representatives, in writing, that the United States will 
attempt to recover from the third parties the reasonable value of 
medical care furnished or to be furnished and that they:
    (1) Should seek advice from a legal assistance officer or civilian 
counsel.
    (2) Must cooperate in the prosecution of all actions of the United 
States against third parties.
    (3) Must furnish a complete statement regarding the facts and 
circumstances surrounding the incident which caused the injury.
    (4) Must not execute a release or settle any claim which exists as 
a result of the injury without prior notice to the MCR authority.
* * * * *
0
93. Revise newly redesignated Sec.  842.109 to read as follows:


Sec.  842.109  Referring a claim to the US Attorney.

    (a) All cases that require forwarding to the DoJ must be routed 
through the Chief, MCRP. The MCR authority ensures that personnel 
review all claims for possible referral not later than two years after 
the date of the incident for tort based cases.
    (b) The United States or the injured party on behalf of the United 
States must file suit within 3 years after an action accrues. This is 
usually 3 years after the initial treatment is provided in a federal 
medical facility or after the initial payment is made by Tricare, 
whichever is first.
0
94. Revise newly redesignated Sec.  842.111 to read as follows:


Sec.  842.111  Recovery rates in government facilities.

    The Federal Register contains the rates set by the Office of 
Management and Budget, of which judges take judicial notice. Apply the 
rates in effect at the time of care to claims.
0
95. Revise newly redesignated Sec.  842.112 to read as follows:

[[Page 17634]]

Sec.  842.112  Waiver and compromise of United States interest.

    Waivers and compromises of government claims can be made. This 
paragraph lists the basic guidance for each action. (See this subpart 
for claims involving waiver and compromise of amounts in excess of 
settlement authorities' delegated amounts.)
    (a) Convenience of the Government. When compromising or waiving a 
claim for convenience of the Government, settlement authorities should 
consider the following factors:
    (1) Risks of litigation.
    (2) Questionable liability of the third party.
    (3) Costs of litigation.
    (4) Insurance (Uninsured or Underinsured Motorist and Medical 
Payment Coverage) or other assets of the tortfeasor available to 
satisfy a judgment for the entire claim.
    (5) Potential counterclaim against the U.S.
    (6) Jury verdict expectancy amount.
    (7) Amount of settlement with proposed distribution.
    (8) Cost of any future care.
    (9) Tortfeasor cannot be located.
    (10) Tortfeasor is judgment proof.
    (11) Tortfeasor has refused to pay and the case is too weak for 
litigation.
    (b) Hardship on the injured party. When compromising or waiving a 
claim to avoid undue hardship on the injured party, settlement 
authorities should consider the following factors:
    (1) Permanent disability or disfigurement of the injured party.
    (2) Decreased earning power of the injured party.
    (3) Out of pocket losses to the injured party.
    (4) Financial status of the injured party.
    (5) Pension rights of the injured party.
    (6) Other government benefits available to the injured party.
    (7) An offer of settlement from a third party which includes 
virtually all of the thirty party's assets, although the amount is 
considerably less than the calculation of the injured party's damages.
    (8) Whether the injured party received excessive treatment.
    (9) Amount of settlement with proposed distribution, including 
reductions in fees or damages by other parties, medical providers, or 
attorneys in order to reduce the hardship on the injured party.
    (c) Compromise or waiver. A compromise or waiver can be made upon 
written request from the injured party or the injured party's legal 
representative.
0
96. Revise newly redesignated Sec.  842.113 to read as follows:


Sec.  842.113  Reconsideration of a waiver for undue hardship.

    A settlement authority may reconsider its previous action on a 
request for waiver or compromise whether requested or not. 
Reconsideration is normally on the basis of new evidence or discovery 
of errors in the waiver submission or settlement, but can be based upon 
a re-evaluation of the claim by the settlement authority.

Subpart O--[Removed]

0
97. Remove subpart O, consisting of Sec. Sec.  842.126 through 842.136.
0
98. Add new subpart M, consisting of Sec. Sec.  842.114 through 
842.117.

Subpart M--Nonappropriated Fund Claims


Sec.  842.114  Scope of this subpart.

    This subpart describes how to settle claims for and against the 
United States for property damage, personal injury, or death arising 
out of the operation of Nonappropriated Fund Instrumentalities (NAFIs). 
Unless stated below, such claims will follow procedures outlined in 
other subparts of this part for the substantive law applicable to the 
particular claim. For example, a NAFI claim adjudicated under the 
Federal Tort Claims Act will follow procedures in this subpart as well 
as subpart K.


Sec.  842.115  Definitions.

    (a) Army and Air Force Exchange Service (AAFES). The Army and Air 
Force Exchange Service is a joint command of the Army and Air Force, 
under the jurisdiction of the Chiefs of Staff of the Army and Air 
Force, which provides exchange and motion picture services to 
authorized patrons.
    (b) Morale, welfare, and recreation (MWR) activities. Air Force MWR 
activities are activities operated directly or by contract which 
provide programs to promote morale and well-being of the Air Force's 
military and civilian personnel and their dependents. They may be 
funded wholly with appropriated funds, primarily with nonappropriated 
funds (NAF), or with a combination of appropriated funds and NAFs.
    (c) Nonappropriated funds. Nonappropriated funds are funds 
generated by Department of Defense military and civilian personnel and 
their dependents and used to augment funds appropriated by the Congress 
to provide a comprehensive morale-building, welfare, religious, 
educational, and recreational program, designed to improve the well-
being of military and civilian personnel and their dependents.
    (d) Nonappropriated funds instrumentality. A nonappropriated fund 
instrumentality is a Federal government instrumentality established to 
generate and administer nonappropriated funds for programs and services 
contributing to the mental and physical well-being of personnel.


Sec.  842.116  Payment of claims against NAFIs.

    Substantiated claims against NAFIs must not be paid solely from 
appropriated funds. Claims are sent for payment as set out in this 
subpart. Do not delay paying a claimant because doubt exists whether to 
use appropriated funds or NAFs. Pay the claim initially from 
appropriated funds and decide the correct funding source later.


Sec.  842.117  Claims by customers, members, participants, or 
authorized users.

    (a) Customer complaints. Do not adjudicate claims complaints or 
claims for property loss or damage under this subpart that the local 
NAFI activity can satisfactorily resolve.
    (b) Claims generated by concessionaires. Most concessionaires must 
have commercial insurance. Any unresolved claims or complaints against 
concessionaires or their insurers are sent to the appropriate 
contracting officers.

Subpart P--[Redesignated as Subpart N]

0
99. Redesignate subpart P, consisting of Sec. Sec.  842.137 through 
842.143, as subpart N, consisting of Sec. Sec.  842.118 through 
842.124.
0
100. Revise newly redesignated Sec.  842.118 to read as follows:


Sec.  842.118  Scope of this subpart.

    (a) This subpart explains how to process certain administrative 
claims:
    (1) Against the United States for property damage, personal injury, 
or death, arising out of Air Force assigned noncombat missions 
performed by the Civil Air Patrol (CAP), as well as certain other Air 
Force authorized missions performed by the CAP in support of the 
Federal government.
    (2) In favor of the United States for damage to US Government 
property caused by CAP members or third parties.
    (b) Unless stated below, such claims will follow procedures 
outlined in other subparts of this part for the substantive law 
applicable to the particular claim. For example, a CAP claim 
adjudicated under the Military Claims Act will follow procedures in 
this subpart as well as subpart E.

[[Page 17635]]

Sec. Sec.  842.120 and 842.121  [Removed]

0
101. Remove newly-redesignated Sec. Sec.  842.120 and 842.121.


Sec. Sec.  842.122 through 842.124  [Redesignated as Sec. Sec.  842.120 
through 842.122]

0
102. Newly redesignated Sec. Sec.  842.122 through 842.124 are further 
redesignated as Sec. Sec.  842.120 through 842.122, respectively.

Subpart Q--[Redesignated as Subpart O]

0
103. Redesignate subpart Q, consisting of Sec. Sec.  842.144 through 
842.150, as subpart O, consisting of Sec. Sec.  842.123 through 
842.129.
0
104. Revise newly redesignated Sec.  842.123 to read as follows:


Sec.  842.123  Scope of this subpart.

    This subpart tells how to make an advance payment before a claim is 
filed or finalized under the Military Claims, Foreign Claims and 
National Guard Claims Acts.
0
105. In newly redesignated Sec.  842.124, revise paragraph (c)(4) to 
read as follows:


Sec.  842.124  Delegation of authority.

* * * * *
    (c) * * *
* * * * *
    (4) SJAs of the Air Force component commander of the US Geographic 
combatant commands for claims arising within their respective combatant 
command areas of responsibility.
* * * * *
0
106. In newly redesignated Sec.  842.126, revise paragraph (b) to read 
as follows:


Sec.  842.126  When authorized.

* * * * *
    (b) The potential claimant has an immediate need amounting to a 
hardship for food, shelter, medical or burial expenses, or other 
necessities. In the case of a commercial enterprise, severe financial 
loss or bankruptcy will result if the Air Force does not make an 
advance payment.
* * * * *

Henry Williams,
Acting Air Force Federal Liaison Officer.
[FR Doc. 2016-06896 Filed 3-29-16; 8:45 am]
 BILLING CODE 5001-10-P



                                                                          Federal Register / Vol. 81, No. 61 / Wednesday, March 30, 2016 / Proposed Rules                                            17621

                                                      Issued in Washington, DC, on March 24,                Executive Summary                                     FR+PR+N+O+SR;rpp=10;po=0;D=DOD-
                                                    2016.                                                                                                         2011-OS-0036.
                                                                                                            I. Purpose of This Regulatory Action
                                                    Gemechu Gelgelu,                                                                                                Administrative Procedure Act: The
                                                    Acting Manager, Airspace Policy Group.                     The purpose of this rule is to provide             Air Force has determined that the
                                                    [FR Doc. 2016–07166 Filed 3–29–16; 8:45 am]             the public with information necessary to              Administrative Procedure Act, 5 U.S.C.
                                                    BILLING CODE 4910–13–P                                  file a claim against the United States Air            553, requires notice of proposed
                                                                                                            Force for money damages and to notify                 rulemaking and an opportunity for
                                                                                                            the public of the procedures used to                  public participation in connection with
                                                                                                            collect money from the public for                     these correction amendments and
                                                    DEPARTMENT OF DEFENSE                                   damages to property under the control                 deletions. In this regard, the Air Force
                                                                                                            of the United States Air Force.                       notes that such notice and opportunity
                                                    Department of the Air Force
                                                                                                            Additionally, it is to provide the public             for comment is necessary because these
                                                                                                            with information about proposed                       correction amendments and deletions
                                                    32 CFR Part 842
                                                                                                            changes and deletions concerning the                  are not related solely to interpretative
                                                    [Docket ID: USAF–2015–0003]                             settlement and payment of claims under                rules, general statements of policy, rules
                                                                                                            the Military Personnel and Civilian                   of agency organization, procedure, or
                                                    RIN 0701–AA79                                           Employee’s Claims Act for incident to                 practice, nor is there good cause to find
                                                                                                            service loss and damage to personal                   that notice and public procedure
                                                    Administrative Claims                                   property.                                             thereon are impracticable, unnecessary
                                                    AGENCY:    Department of the Air Force,                                                                       or contrary to the public interest.
                                                                                                            II. Summary of the Major Provisions of
                                                    DoD.                                                    This Regulatory Action                                Regulatory Procedures
                                                    ACTION:   Proposed rule.                                                                                      Executive Order 12866, ‘‘Regulatory
                                                                                                              This part describes the process and
                                                    SUMMARY:    This rule contains                          procedures by which claims against the                Planning and Review’’ and Executive
                                                    amendments for policy changes and                       Air Force will be addressed, including                Order 13563, ‘‘Improving Regulation
                                                    clarification and deletions for the Air                 who are proper claimants, how, where                  and Regulatory Review’’
                                                    Force guidance on Administrative                        and when to file a claim, what claims                    Executive Orders 13563 and 12866
                                                    claims and Personnel and Carrier                        are payable, how the Air Force will                   direct agencies to assess all costs and
                                                    Recovery Claims. The rule relates to the                adjudicate claims and how to appeal                   benefits of available regulatory
                                                    Air Force processes for claims filed for                unfavorable decisions. It also describes              alternatives and, if regulation is
                                                    and against the Air Force as well as Air                the process the Air Force will use for                necessary, to select regulatory
                                                    Force processes for filing personnel and                asserting claims against persons who                  approaches that maximize net benefits
                                                    carrier recovery claims.                                damage Air Force property.                            (including potential economic,
                                                    DATES: Comments must be received by                       Changes: This part has been                         environmental, public health and safety
                                                    May 31, 2016.                                           substantially revised and should be                   effects, distribute impacts, and equity).
                                                                                                            reviewed in its entirety to determine the             Executive Order 13563 emphasizes the
                                                    ADDRESSES: You may submit comments,
                                                                                                            changes made.                                         importance of quantifying both costs
                                                    identified by docket number and/or                                                                            and benefits, of reducing costs, of
                                                    Regulatory Information Number (RIN)                       Deletions: This part has been
                                                                                                            substantially revised and should be                   harmonizing rules, and of promoting
                                                    and title, by any of the following                                                                            flexibility. The Department of Air Force
                                                    methods:                                                reviewed in its entirety to determine the
                                                                                                                                                                  has assessed this rule and determined
                                                      • Federal Rulemaking Portal: http://                  deletions made.
                                                                                                                                                                  this rule to be a ‘‘non-significant
                                                    www.regulations.gov. Follow the                         III. Costs and Benefits                               regulatory action.’’
                                                    instructions for submitting comments.
                                                      • Mail: Department of Defense, Office                   The regulations contained herein                    Unfunded Mandates Reform Act (Sec.
                                                    of the Deputy Chief Management                          require the public who wish to file a                 202, Pub. L. 104–4)
                                                    Officer, Directorate of Oversight and                   claim against the Air Force to                           Section 202 of the Unfunded
                                                    Compliance, Regulatory and Audit                        substantiate their loss, which may result             Mandates Reform Act of 1995 (UMRA)
                                                    Matters Office, 9010 Defense Pentagon,                  in minor or incidental costs to the                   (Pub. L. 104–4) requires agencies assess
                                                    Washington, DC 20301–9010.                              claimant. Revised regulations pertaining              anticipated costs and benefits before
                                                       Instructions: All submissions received               to how the Air Force asserts claims for               issuing any rule whose mandates
                                                    must include the agency name and                        damage to Air Force property may result               require spending in any 1 year of $100
                                                    docket number or RIN for this Federal                   in increased costs to those who cause                 million in 1995 dollars, updated
                                                    Register document. The general policy                   said damage. The benefits of these                    annually for inflation. In 2014, that
                                                    for comments and other submissions                      regulations include increased safeguards              threshold is approximately $141
                                                    from members of the public is to make                   to ensure public funds are not expended               million. This rule will not mandate any
                                                    these submissions available for public                  for fraudulent claims and to ensure the               requirements for State, local, or tribal
                                                    viewing on the Internet at http://                      U.S. government receives adequate                     governments, nor will it affect private
                                                    www.regulations.gov as they are                         compensation for damages to its                       sector costs.
                                                    received without change, including any                  property wrongfully caused by others.
                                                                                                                                                                  Public Law 96–354, ‘‘Regulatory
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                                                    personal identifiers or contact                         Retrospective Review                                  Flexibility Act’’ (5 U.S.C. 601)
                                                    information.
                                                                                                               This rule is part of DoD’s                            It has been certified that this rule is
                                                    FOR FURTHER INFORMATION CONTACT:    Mr.                 retrospective plan, completed in August               not subject to the Regulatory Flexibility
                                                    Daniel Lemieux (AFLOA/JACC), 1500                       2011, under Executive Order 13563,                    Act (5 U.S.C. 601) because it would not,
                                                    West Perimeter Rd, Ste 1700, Joint Base                 ‘‘Improving Regulation and Regulatory                 if promulgated, have a significant
                                                    Andrews, MD 20762, (240) 612–4646,                      Review,’’ DoD’s full plan and updates                 economic impact on a substantial
                                                    daniel.g.lemieux.civ@mail.mil.                          can be accessed at: http://www.                       number of small entities. Therefore, the
                                                    SUPPLEMENTARY INFORMATION:                              regulations.gov/#!docketDetail;dct=                   Regulatory Flexibility Act, as amended,


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                                                    17622                 Federal Register / Vol. 81, No. 61 / Wednesday, March 30, 2016 / Proposed Rules

                                                    does not require us to prepare a                           (g) Owner. A holder of a legal title or            knowingly, and purposely, without
                                                    regulatory flexibility analysis.                        an equitable interest in certain property.            justifiable excuse.
                                                                                                            Specific examples include:                            *      *    *     *     *
                                                    Public Law 96–511, ‘‘Paperwork
                                                    Reduction Act’’ (44 U.S.C. Chapter 35)                     (1) For real property. The mortgagor,              ■ 11. Amend newly redesignated
                                                                                                            and the mortgagee if that individual can              § 842.12 by adding paragraphs (g)
                                                      This rule does not impose reporting or                maintain a cause of action in the local               through (i) to read as follows:
                                                    recordkeeping requirements under the                    courts involving a tort to that specific
                                                    Paperwork Reduction Act of 1995.                        property.                                             § 842.12   Claims not payable.
                                                    Executive Order 13132, ‘‘Federalism’’                      (2) For personal property. A bailee,               *      *    *      *    *
                                                                                                            lessee, mortgagee and a conditional                      (g) Claims involving wrongful taking
                                                       Executive Order 13132 establishes                                                                          stemming from larceny, forgery or
                                                                                                            vendee. A mortgagor, conditional
                                                    certain requirements that an agency                                                                           deceit, which are not accompanied by
                                                                                                            vendor, title loan company or someone
                                                    must meet when it promulgates a                                                                               riotous or violent action.
                                                                                                            else other than the owner, who has the
                                                    proposed rule (and subsequent final                                                                              (h) Claims against Air National Guard
                                                                                                            title for purposes of security are not
                                                    rule) that imposes substantial direct                                                                         members unless they are performing
                                                                                                            owners.
                                                    requirement costs on State and local                                                                          duty under Title 10 U.S.C.
                                                    governments, preempts State law, or                     *      *     *    *     *
                                                                                                                                                                     (i) Claims for indirect, consequential
                                                    otherwise has Federalism implications.                  ■ 6. Revise § 842.4 to read as follows:
                                                                                                                                                                  or remote damages.
                                                    This rule will not have a substantial                   § 842.4    Where to file a claim.                     ■ 12. Revise newly redesignated
                                                    effect on State and local governments.                                                                        § 842.13 to read as follows:
                                                                                                               File a claim at the base legal office of
                                                    List of Subjects in 32 CFR Part 842                     the unit or installation at or nearest to             § 842.13   Limiting provisions.
                                                      Administrative claims.                                where the accident or incident occurred.                 (a) A complaint must be submitted
                                                      Accordingly, 32 CFR part 842 is                       If the accident or incident occurred in               within 90 days of the date of the
                                                    proposed to be amended as follows:                      a foreign country where no Air Force                  incident. The appointing commander
                                                                                                            unit is located, file the claim with the              may find good cause for the delay and
                                                    PART 842—[AMENDED]                                      Defense Attache (DATT) or Military                    accept a late claim. The appointing
                                                                                                            Assistance Advisory Group (MAAG)                      commander’s determination of good
                                                    ■ 1. The authority citation for 32 CFR                  personnel authorized to receive claims                cause is final and not reviewable.
                                                    part 842 continues to read as follows:                  (DIAM 100–1 and AFR 400–45). In a                        (b) Assessment of damages in excess
                                                      Authority: Sec. 8013, 100 Stat. 1053, as              foreign country where a claimant is                   of $5,000 against an offender’s pay for
                                                    amended; 10 U.S.C. 8013, except as                      unable to obtain adequate assistance in               a single incident requires AFLOA/JACC
                                                    otherwise noted; 28 CFR 14.11, except as                filing a claim, the claimant may contact              approval.
                                                    otherwise noted.                                        the nearest Air Force SJA. The SJA then               ■ 13. Revise newly redesignated
                                                    ■ 2. The Note for part 842 is revised to                advises AFLOA/JACC through claims                     § 842.14 to read as follows:
                                                    read as follows:                                        channels of action taken and states why
                                                                                                            the DATT or MAAG was unable to                        § 842.14   Filing a claim.
                                                       Note: Air Force Regulations are available
                                                    on the e-Publishing Web site at http://www.e-           adequately assist the claimant.                         Claimant complains (orally or in
                                                    publishing.af.mil/ for downloading. This part                                                                 writing) to the commander of a military
                                                                                                            § 842.9    [Removed]                                  organization or unit of the alleged
                                                    is derived from Air Force Instruction 51–501,
                                                    Tort Claims, and Air Force Instruction 51–              ■   7. Remove § 842.9.                                offending member or members or to the
                                                    502, Personnel and Carrier Recovery Claims.                                                                   commander of the nearest military
                                                                                                            Subpart B—[Removed]                                   installation. If the claim is made orally,
                                                    ■ 3. Amend part 842 by:
                                                    ■ a. Revising all references to ‘‘HQ                    ■ 8. Remove Subpart B, consisting of                  the individual must assist the
                                                    USAF/JACC’’ to read ‘‘AFLOA/JACC.’’                     §§ 842.10 through 842.14.                             commander to reduce the complaint to
                                                    ■ b. Revising all references to ‘‘USAF/                                                                       writing within a reasonable time. The
                                                    JACC’’ to read ‘‘AFLOA/JACC.’’                          Subpart C—[Redesignated as Subpart                    complainant need not request a sum
                                                    ■ 4. Revise § 842.0 to read as follows:                 B]                                                    certain in writing at the time the
                                                                                                                                                                  complaint is filed, but they must present
                                                    § 842.0   Scope.                                        ■ 9. Redesignate subpart C, consisting of             such value and evidence before
                                                      This part establishes standard policies               §§ 842.15 through 842.20, as subpart B,               settlement is made.
                                                    and procedures for all administrative                   consisting of §§ 842.9 through 842.14,
                                                    claims resulting from Air Force                         respectively.                                         Subpart D—[Redesignated as Subpart
                                                    activities and for which the Air Force                  ■ 10. Amend newly redesignated                        C]
                                                    has assigned responsibility.                            § 842.10 by revising paragraphs (a), (b),
                                                    ■ 5. Amend § 842.2 by:                                                                                        ■ 14. Redesignate subpart D, consisting
                                                                                                            and (d) to read as follows:
                                                    ■ a. Revising paragraph (f).                                                                                  of §§ 842.21 through 842.35, as subpart
                                                    ■ b. Removing paragraph (g).                            § 842.10    Definitions.                              C, consisting of §§ 842.15 through
                                                    ■ c. Redesignating paragraphs (h)                         (a) Appointing commander. The                       842.29.
                                                    through (o) as (g) through (n).                         commander exercising special court-
                                                    ■ d. Revising newly redesignated
                                                                                                                                                                  § 842.16   [Amended]
                                                                                                            martial jurisdiction over the offender.
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                                                    paragraph (g).                                                                                                ■  15. Amend newly redesignated
                                                                                                              (b) Board of officers. One to three                 § 842.16 by:
                                                      The revisions read as follows:
                                                                                                            commissioned officers appointed to                    ■ a. Removing paragraphs (a), (c), (e),
                                                    § 842.2   Definitions.                                  investigate a complaint of willful                    and (g).
                                                    *     *    *     *     *                                property damage or wrongful taking by                 ■ b. Redesignating paragraphs (b), (d),
                                                      (f) AFLOA/JACC. Claims and Tort                       Air Force personnel.                                  (f), and (h) as paragraphs (a), (b), (c), and
                                                    Litigation Division, 1500 West Perimeter                *     *     *     *    *                              (d).
                                                    Road, Suite 1700, Joint Base Andrews,                     (d) Willful damage. Damage or                       ■ 16. Revise newly designated § 842.17
                                                    MD 20762.                                               destruction caused intentionally,                     to read as follows:


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                                                                          Federal Register / Vol. 81, No. 61 / Wednesday, March 30, 2016 / Proposed Rules                                           17623

                                                    § 842.17   Delegations of authority.                    recommendations to the proper                         property in quarters within the US
                                                      (a) Settlement authority. The                         settlement authority.                                 unless the housing or quarters are
                                                    Secretary of the Air Force has delegated                *     *     *    *    *                               assigned or otherwise provided in kind.
                                                    the authority to assign areas of                        ■ 19. Revise newly designated § 842.21                Base housing that has not been
                                                    responsibility and designate functional                 to read as follows:                                   privatized is generally considered
                                                    responsibility for claims under the                                                                           assigned or provided in kind wherever
                                                    Military Personnel and Civilian                         § 842.21    Who may file a claim.                     it is located.
                                                    Employees’ Claims Act to The Judge                        A claim may be filed by:                               (i) Privatized Housing or Quarters
                                                    Advocate General (TJAG).                                  (a) A proper claimant,                              within the United States subject to the
                                                      (b) Reconsideration authority. A                        (b) An authorized agent or legal                    Military
                                                    settlement authority has the same                       representative of a proper claimant,                     Housing Privatization Initiative
                                                    authority specified in paragraph (a) of                   (c) A survivor of a deceased proper                 located within the fence line of a
                                                    this section. However, with the                         claimant in this order:                               military installation or on federal land
                                                    exception of TJAG, a settlement                           (1) Spouse.                                         in which the DoD has an interest is
                                                    authority may not deny a claim on                         (2) Children.                                       considered assigned or otherwise
                                                    reconsideration that it, or its delegate,                 (3) Father or mother.                               provided in kind for the purposes of the
                                                    had previously denied.                                    (4) Brothers or sisters.                            Military Personnel and Civilian
                                                      (c) Authority to reduce, withdraw and                 ■ 20. Amend newly designated § 842.24
                                                                                                                                                                  Employees’ Claims Act.
                                                    restore delegated settlement authority.                 by revising paragraph (d) to read as                     (ii) Reserved.
                                                    Any superior settlement authority may                   follows:                                                 (5) Housing or Quarters outside the
                                                    reduce, withdraw, or restore delegated                  § 842.24    General provisions.                       United States. Outside the US,
                                                    authority.                                                                                                    authorized off-base quarters, as well as
                                                    ■ 17. Amend newly designated § 842.18                   *     *    *     *     *
                                                                                                              (d) Property that is owned by the                   assigned quarters, including quarters in
                                                    by revising paragraph (a) to read as                                                                          US territories and possessions, are
                                                    follows:                                                claimants, or their immediate families,
                                                                                                            or borrowed for their use, or in which                authorized places. The residence of a
                                                    § 842.18   Filing a claim.                              the claimants or their immediate                      civilian employee is not an authorized
                                                                                                            families has an enforceable ownership                 location if the employee is a local
                                                      (a) How and when to file a claim. A
                                                                                                            interest.                                             inhabitant.
                                                    claim is filed when a federal military
                                                                                                                                                                     (6) Temporary Duty Quarters (TDY)
                                                    agency receives from a claimant or duly                 *     *    *     *     *                              and locations en route to the TDY
                                                    authorized agent a properly completed                   ■ 21. Amend newly designated § 842.25
                                                                                                                                                                  destination.
                                                    AF Form 180, DD Form 1842 or other                      by revising introductory text and                        Significant deviations from the direct
                                                    written and signed demand for a                         paragraphs (a) and (b) to read as follows:            travel route are not authorized locations.
                                                    determinable sum of money.
                                                      (1) A claim is also filed when a                      § 842.25    Claims payable.                              (7) Permanent Change of Station (PCS)
                                                    federal military agency receives from a                    Claims may be payable for loss of or               temporary quarters and locations
                                                    claimant or duly authorized agent an                    damage to tangible personal property                  enroute to the PCS destination.
                                                    electronic submission, through a                        when the damage occurs incident to                    Significant deviations from the direct
                                                    Department of Defense claims Web site,                  service. For loss of or damage to                     travel route are not authorized locations.
                                                    indicating that the claimant intends for                property to be incident to service, it                   (8) Entitlement and Benefit Locations.
                                                    the appropriate military branch to                      must occur at a place and time that is                For these locations to be authorized, the
                                                    consider a digitally signed demand for                  connected to the service of an active                 claimant must be using them for the
                                                    a determinable sum of money.                            duty military member or employment of                 intended purpose and the property must
                                                      (2) A claim is also filed when the Air                a civilian employee.                                  be reasonably linked to that purpose.
                                                    Force receives from a claimant or duly                     (a) Authorized Location. Claims are                   (9) Locations where Personal Property
                                                    authorized agent an electronic                          only payable when the claimed property                shipped or stored at government
                                                    submission, through the Air Force                       is located in an authorized location.                 expense are found. Government
                                                    claims Web site, a digitally signed                     There must be some connection                         facilities where property is stored at the
                                                    demand for a determinable sum of                        between the claimant’s service and the                claimant’s expense or for their
                                                    money.                                                  location of the claimed property. Duty                convenience without an entitlement are
                                                                                                            locations where personal property is                  not authorized places.
                                                    *     *     *    *      *
                                                                                                            used, stored or held because of official                 (b) Payable Causes of Loss Incident to
                                                    ■ 18. Revise newly designated § 842.19
                                                                                                            duties are authorized places. Other                   Service. Because the PCA is not a
                                                    introductory text to read as follows:
                                                                                                            authorized places may include:                        substitute for private insurance, loss or
                                                    § 842.19   Partial payments.                               (1) Any location on a military                     damage at quarters or other authorized
                                                       Upon request of a claimant, a                        installation not otherwise excluded.                  locations may only be paid if caused by:
                                                    settlement authority may make a partial                    (2) Any office, building, recreation                  (1) An unusual occurrence;
                                                    payment in advance of final settlement                  area, or real estate the Air Force or any                (2) Theft, vandalism or other
                                                    when a claimant experiences personal                    other DoD element uses or controls.                   malfeasance;
                                                    hardship due to extensive property                         (3) Any place a military member is                    (3) Hostile action;
                                                    damage or loss. Partial payments are                    required or ordered to be pursuant to                    (4) A carrier, contractor,
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                                                    made if a claim for only part of the loss               their duties and while performing those               warehouseman or other transportation
                                                    is submitted and is readily provable, up                duties.                                               service provider storing or moving
                                                    to the amount of the settlement                            (4) Assigned Government Housing or                 goods or privately owned vehicles at
                                                    authority. (The claimant may later                      Quarters in the United States or                      government expense;
                                                    amend the claim for the remainder of                    provided in kind. The Military                           (5) An agent of the US; or
                                                    the loss.) If the total payable amount of               Personnel and Civilian Employees’                        (6) A permanent seizure of a witness’
                                                    the claim exceeds the payment limits of                 Claims Act specifically prohibits                     property by the Air Force.
                                                    the settlement authority, send it with                  payment for loss of or damage to                      *       *    *     *    *


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                                                    17624                 Federal Register / Vol. 81, No. 61 / Wednesday, March 30, 2016 / Proposed Rules

                                                    ■ 22. Amend newly designated § 842.26                   ■ 27. Amend newly redesignated                        in a sum certain, and lay out a basic
                                                    by:                                                     § 842.32 by:                                          statement as to the nature of the claim
                                                    ■ a. Revising paragraphs (d), (j), (m), (n),            ■ a. Revising paragraphs (a)(1)                       that will allow the Air Force to
                                                    (u), (y), and (z).                                      introductory text, (a)(3) introductory                investigate the allegations contained
                                                    ■ b. Remove paragraphs (aa), (bb), (cc),                text, (a)(3)(ii) and (iii), (a)(4) and (5), (b),      therein.
                                                    and (dd).                                               and (f) introductory text:                            *     *     *     *     *
                                                                                                            ■ b. Removing paragraph (f)(8) and                    ■ 29. Revise newly redesignated
                                                    § 842.26   Claims not payable.                          redesignating paragraphs (f)(9) through               § 842.34 to read as follows:
                                                    *      *      *     *     *                             (11) as paragraphs (f)(8) through (10).
                                                      (d) The loss is recovered or                            The revisions read as follows:                      § 842.34   Advance payments.
                                                    recoverable from an insurer or other                                                                             Subpart P sets forth procedures for
                                                    source unless the settlement authority                  § 842.32    Delegations of authority.
                                                                                                                                                                  advance payments.
                                                    determines there is good cause for not                     (a) Settlement authority:                          ■ 30. Amend newly redesignated
                                                    claiming against the insurer.                              (1) The Secretary of the Air Force has             § 842.35 by revising paragraphs (a) and
                                                    *      *      *     *     *                             authority to:                                         (c) to read as follows:
                                                      (j) It is an appraisal fee, unless the                *       *    *     *    *
                                                    settlement authority requires one to                       (3) The following individuals have                 § 842.35   Statute of limitations.
                                                    adjudicate the claim.                                   delegated authority to settle claims for                 (a) A claim must be filed in writing
                                                    *      *      *     *     *                             $25,000 or less and to deny claims in                 within 2 years after it accrues. It is
                                                      (m) It is an item acquired, possessed,                any amount:                                           deemed to be filed upon receipt by The
                                                    shipped, or stored in violation of any                  *       *    *     *    *                             Judge Advocate General, AFLOA/JACC,
                                                    U.S. Armed Force directive or                              (ii) The Director, Civil Law and                   or a Staff Judge Advocate of the Air
                                                    regulation.                                             Litigation.                                           Force. A claim accrues when the
                                                      (n) It is an item fraudulently claimed.                  (iii) The Chief, Associate Chief and               claimant discovers or reasonably should
                                                    *      *      *     *     *                             Branch Chiefs, Claims and Tort                        have discovered the existence of the act
                                                      (u) It is an inconvenience expense.                   Litigation Division.                                  that resulted in the claimed loss. The
                                                                                                               (4) SJAs of the Air Force component                same rules governing accrual pursuant
                                                    *      *      *     *     *                                                                                   to the Federal Tort Claims Act should be
                                                                                                            commander of the US Geographic
                                                      (y) It is damage to, or loss of a rental                                                                    applied with respect to the Military
                                                                                                            combatant commands for claims arising
                                                    vehicle which TDY or PCS orders                                                                               Claims Act. Upon receipt of a claim that
                                                                                                            within their respective combatant
                                                    authorized.                                                                                                   properly belongs with another military
                                                                                                            command areas of responsibility have
                                                      (z) It is a cost to relocate a telephone                                                                    department, the claim is promptly
                                                                                                            delegated authority to settle claims
                                                    or mobile or manufactured home due to                                                                         transferred to that department.
                                                                                                            payable or deny claims filed for $25,000
                                                    a government ordered quarters move.
                                                                                                            or less.                                              *      *     *     *     *
                                                    Subpart E—[Removed]                                        (5) SJAs of GCMs in PACAF and                         (c) A claim filed after the statute of
                                                                                                            USAFE have delegated authority to                     limitations has run is considered if the
                                                    ■   23. Remove subpart E.                               settle claims payable, or deny claims                 U.S. is at war or in an armed conflict
                                                                                                            filed for $15,000 or less.                            when the claim accrues or if the U.S.
                                                    Subpart F—[Redesignated as Subpart                         (b) Redelegation of authority. The                 enters a war or armed conflict after the
                                                    D]                                                      Chief, Claims and Tort Litigation                     claim accrues, and if good causes shows
                                                    ■ 24. Redesignate subpart F, consisting                 Division may redelegate his or her                    how the war or armed conflict
                                                    of §§ 842.40 through 842.54, as subpart                 authority to Staff Judge Advocates. A                 prevented the claimant from diligently
                                                    D consisting of §§ 842.30 through                       settlement authority may redelegate his               filing the claim within the statute of
                                                    842.44.                                                 or her authority for claims not                       limitations. But in no case will a claim
                                                    ■ 25. Revise newly redesignated
                                                                                                            exceeding $25,000, to a subordinate                   be considered if filed more than two
                                                    § 842.30 to read as follows:                            judge advocate or civilian attorney in                years after the war or armed conflict
                                                                                                            writing. The Chief, AFLOA/JACC may                    ends.
                                                    § 842.30   Scope of this subpart.                       redelegate up to $25,000, in writing, to              ■ 31. Revise newly redesignated
                                                      This subpart establishes policies and                 paralegals assigned to AFLOA/JACC                     § 842.37 to read as follows:
                                                    procedures for all administrative claims                and, upon request, may authorize
                                                    under the Military Claims Act for which                 installation Staff Judge Advocates to                 § 842.37   Who are proper claimants.
                                                    the Air Force has assigned                              redelegate their settlement authority to                (a) Citizens and inhabitants of the
                                                    responsibility.                                         paralegals under their supervision.                   United States. U.S. inhabitants includes
                                                    ■ 26. Amend newly redesignated                          *       *    *     *    *                             dependents of the U.S. military
                                                    § 842.31, by revising paragraph (b) to                     (f) Special exceptions. Do not settle or           personnel and federal civilian
                                                    read as follows:                                        deny claims for the following reasons                 employees temporarily outside the U.S.
                                                                                                            without AFLOA/JACC approval:                          for purposes of U.S. government service.
                                                    § 842.31   Definitions.                                                                                         (b) U.S. military personnel and
                                                                                                            *       *    *     *    *
                                                    *     *     *     *    *                                ■ 28. Amend newly redesignated                        civilian employees. NOTE: These
                                                      (b) Final denial. A letter mailed from                                                                      personnel are not proper claimants for
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                                                                                                            § 842.33, by revising paragraph (a) to
                                                    the settlement authority to the claimant                read as follows:                                      claims for personal injury or death that
                                                    or authorized agent advising the                                                                              occurred incident to their service.
                                                    claimant that the Air Force denies the                  § 842.33    Filing a claim.                             (c) Foreign military personnel when
                                                    claim. Final denial letters mailed from                   (a) Elements of a proper claim. A                   the damage or injury occurs in the U.S.
                                                    within the United States shall be sent by               claim is must be filed on a Standard                  Do not pay for claims under the MCA
                                                    U.S. Mail, certified mail, return receipt               Form 95 or other written document. It                 for personal injury or death of a foreign
                                                    requested.                                              must be signed by the Claimant or                     military personnel that occurred
                                                    *     *     *     *    *                                authorized agent, be for money damages                incident to their service.


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                                                                          Federal Register / Vol. 81, No. 61 / Wednesday, March 30, 2016 / Proposed Rules                                            17625

                                                      (d) States, state agencies, counties, or              duty, or the detention of any goods or                   (2) Arise out of an irregular
                                                    municipalities, or their political                      merchandise by any U.S. officer of                    procurement or implied contract.
                                                    subdivisions.                                           customs or excise, or any other U.S. law                 (p) Is for the personal injury or death
                                                      (e) Subrogees of proper claimants to                  enforcement officer. NOTE: This                       of military or civilian personnel of a
                                                    the extent they have paid for the claim                 includes loss or damage to property                   foreign government incident to their
                                                    in question.                                            detained by members of the Security                   service.
                                                    ■ 32. Revise newly redesignated                         Forces or Office of Special Investigation                (q) Is based on an act or omission of
                                                    § 842.38 to read as follows:                            (OSI).                                                an employee of the government,
                                                                                                               (c) Is cognizable under U.S. admiralty             exercising due care, in the execution of
                                                    § 842.38   Who are not proper claimants.
                                                                                                            and maritime law, to include:                         a statute or regulation, whether or not
                                                       (a) Governments of foreign nations,                     (1) The Suits in Admiralty Act, 46                 such statute or regulation is valid. Do
                                                    their agencies, political subdivisions, or              U.S.C. 30901 and following.                           not deny claims solely on this exception
                                                    municipalities.                                            (2) The Death on the High Seas Act,                without the prior approval of USAF/
                                                       (b) Agencies and NAFIs of the U.S.                   46 U.S.C. 30301 and following.                        JACC. Claims under the noncombat
                                                    Government.                                                (3) The Public Vessels Act, 46 U.S.C.              activities provision of this subpart may
                                                       (c) Subrogees of § 842.42(a) and (b) of
                                                                                                            31101 and following.                                  be paid even if this paragraph applies.
                                                    this part.                                                 (4) EXCEPTION: Claims arising from
                                                       (d) Inhabitants of foreign countries.                                                                      Is based on the exercise or performance
                                                    ■ 33. Amend newly redesignated
                                                                                                            noncombat activities may be paid under                of, or the failure to exercise or perform,
                                                    § 842.39 by:                                            the MCA, even if they are also                        a discretionary function or duty on the
                                                    ■ a. Revising paragraph (a).
                                                                                                            cognizable under paragraphs (c)(1)                    part of a federal agency or a federal
                                                    ■ b. Removing paragraphs (c), (d) and                   through (c)(3), of this section.                      government employee, whether or not
                                                    (f).                                                       (d) Arises out of assault, battery, false          the discretion involved is abused. Do
                                                    ■ c. Redesignating paragraph (e) as                     imprisonment, false arrest, malicious                 not deny claims solely on this exception
                                                    paragraph (c).                                          prosecution, or abuse of process.                     without the prior approval of USAF/
                                                       The revision reads as follows                        EXCEPTION: Unless such actions were                   JACC. EXCEPTION: Claims under the
                                                                                                            committed by an investigative or law                  noncombat activities provision may be
                                                    § 842.39   Claims payable.                              enforcement officer of the U.S. who is                paid even if this paragraph applies.
                                                      (a) Claims arising from negligent or                  empowered by law to conduct searches,                    (r) Is not in the best interests of the
                                                    wrongful acts or omissions committed                    seize evidence, or make arrests for                   U.S., is contrary to public policy, or is
                                                    by United States military or civilian                   violations of federal law.                            otherwise contrary to the basic intent of
                                                    personnel while acting in the scope of                     (e) Arises out of libel, slander,                  the MCA. Examples include, but are not
                                                    their employment, subject to the                        misrepresentation, or deceit.                         limited to, when a claimant’s criminal
                                                    exceptions listed in this subpart.                         (f) Arises out of an interference with             conduct or failure to comply with a
                                                    *     *    *     *      *                               contract rights.                                      nonpunitive regulation is a proximate
                                                    ■ 34. Revise newly redesignated                            (g) Arises out of the combat activities            cause of the loss. Prior approval must be
                                                    § 842.40 to read as follows:                            of U.S. military forces.                              obtained from USAF/JACC before
                                                                                                               (h) Is for the personal injury or death            denying claims solely on this exception.
                                                    § 842.40   Claims not payable.                          of a member of the Armed Forces of the                   (s) Arises out of an act or omission of
                                                       (a) Is covered by the FTCA, FCA,                     U.S. incident to the member’s service.                any employee of the government in
                                                    IACA, 10 U.S.C. 2734a and 2734b, Air                       (i) Is for the personal injury or death            administering the provisions of the
                                                    Force Admiralty Claims Act (AFACA),                     of any person for workplace injuries                  Trading With the Enemy Act, 50 U.S.C.
                                                    10 U.S.C. 9801–9804, 9806, NGCA, 32                     covered by the Federal Employees’                     app. 1–44.
                                                    U.S.C. 715, or covered under the                        Compensation Act, 5 U.S.C. 8101, and                     (t) Is for damages caused by the
                                                    Military Personnel and Civilian                         following.                                            imposition or establishment of a
                                                    Employees’ Claims Act (MPCECA), 31                         (j) Is for the personal injury or death            quarantine by the U.S.
                                                    U.S.C. 3701, 3721. (1) MCA claims                       of any employee of the U.S., including                   (u) Arises from the fiscal operations of
                                                    arising from noncombat activities in the                nonappropriated fund employees, for                   the Department of the Treasury or from
                                                    U.S. are not covered by the FTCA                        workplace injuries covered by the                     the regulation of the monetary system.
                                                    because more elements are needed to                     Longshore and Harbor Workers’                            (v) Arises from the activities of the
                                                    state an FTCA claim than are needed to                  Compensation Act, 33 U.S.C. 901, and                  Tennessee Valley Authority.
                                                    state a claim under the MCA for                         following.                                               (w) Arises from the activities of a
                                                    noncombat activities. All FTCA claims                      (k) Is for a taking of property, e.g., by          federal land bank, a federal intermediate
                                                    are based on elements of traditional tort               technical trespass or over flight of                  credit bank, or a bank for cooperatives.
                                                    liability (i.e., duty, breach, causation,               aircraft.                                                (x) Is for the personal injury or death
                                                    and damages); that is, they are fault                      (l) Is for patent or copyright                     of any government contractor employee
                                                    based. Noncombat activity claims under                  infringement.                                         for whom benefits are available under
                                                    the MCA are based solely on causation                      (m) Results wholly from the negligent              any worker’s compensation law, or
                                                    and damages. Because MCA claims for                     or wrongful act of the claimant.                      under any contract or agreement
                                                    noncombat activities are not fault based,                  (n) Is for the reimbursement of                    providing employee benefits through
                                                    they are not covered by the FTCA.                       medical, hospital, or burial expenses                 insurance, local law, or custom when
                                                       (2) Claims for incident-to-service                   furnished at the expense of the U.S.,
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                                                                                                                                                                  the U.S. pays insurance either directly
                                                    damage to vehicles caused by the                        either directly or through contractual                or as part of the consideration under the
                                                    negligence of a member or employee of                   payments.                                             contract. Only USAF/JACC may act on
                                                    the armed forces acting in the scope of                    (o) Arises from contractual                        these claims.
                                                    employment are paid under the MCA,                      transactions, express or implied                         (y) Is for damage, injury or death from
                                                    instead of the Military Personnel and                   (including rental agreements, sales                   or by flood or flood waters at any place.
                                                    Civilian Employees’ Claims Act.                         agreements, leases, and easements), that:                (z) Is for damage to property or other
                                                       (b) Arises with respect to the                          (1) Are payable or enforceable under               losses of a state, commonwealth,
                                                    assessment or collection of any customs                 oral or written contracts; or                         territory, or the District of Columbia


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                                                    17626                 Federal Register / Vol. 81, No. 61 / Wednesday, March 30, 2016 / Proposed Rules

                                                    caused by Air National Guard personnel                  by the U.S. to give any warning of                       (v) Joint and several liability does not
                                                    engaged in training or duty under 32                    hazardous conditions on such premises                 apply. Payment will be made only upon
                                                    U.S.C. 316, 502, 503, 504, or 505 who                   to persons entering for a recreational                the portion of loss, damage, injury or
                                                    are assigned to a unit maintained by that               purpose unless there is a willful or                  death attributable to the Armed Forces
                                                    state, commonwealth, territory, or the                  malicious failure to guard or warn                    of the United States.
                                                    District of Columbia.                                   against a dangerous condition, or unless                 (vi) Future economic loss will be
                                                       (aa) Is for damage to property or for                consideration was paid to the U.S.                    discounted to present value after
                                                    any death or personal injury arising out                (including a nonappropriated fund                     deducting for federal income taxes and,
                                                    of activities of any federal agency or                  instrumentality) to use the premises.                 in cases of wrongful death, personal
                                                    employee of the government in carrying                  ■ 35. Revise newly redesignated                       consumption.
                                                    out the provisions of the Disaster Relief               § 842.41 to read as follows:                             (c) Do not approve payment for:
                                                    Act of 1974 (42 U.S.C. 5121, et seq.), as                                                                        (i) Punitive damages.
                                                    amended.                                                § 842.41    Applicable law.                              (ii) Cost of medical or hospital
                                                       (bb) Arises from activities that present                This paragraph provides the existing               services furnished at the expense of the
                                                    a political question.                                   law governing liability, measurement of               United States.
                                                       (cc) Arises from private, as                         liability and the effects of settlement                  (iii) Cost of burial expenses paid by
                                                    distinguished from government,                          upon awards.                                          the United States.
                                                    transactions.                                              (a) Many of the exclusions in this                    (d) Settlement by insurer or joint
                                                       (dd) Is based solely on compassionate                subpart are based upon the wording of                 tortfeasor. When settlement is made by
                                                    grounds.                                                28 U.S.C. 2680 or other federal statutes              an insurer or joint tortfeasor and an
                                                       (ee) Is for rent, damage, or other                   or court decisions interpreting the                   additional award is warranted, an award
                                                    expenses or payments involving the                      Federal Tort Claims Act. Federal case                 may be made if both of the following are
                                                    regular acquisition, use, possession, or                law interpreting the same exclusions                  present:
                                                    disposition of real property or interests               under the Federal Tort Claims Act is                     (1) The United States is not protected
                                                    therein by and for the U.S.                             applied to the Military Claims Act.                   by the release executed by the claimant.
                                                       (ff) Is presented by a national, or a                Where state law differs with federal law,                (2) The total amount received from
                                                    corporation controlled by a national, of                federal law prevails.                                 such source is first deducted.
                                                    a country at war or engaged in armed                       (b) Extent of liability. Where the claim           ■ 36. Amend newly redesignated
                                                    conflict with the U.S., or any country                  arises is important in determining the                § 842.42, by revising paragraphs (a) and
                                                    allied with such enemy country unless                   extent of liability.                                  (c) to read as follows:
                                                    the appropriate settlement authority                       (1) When a claim arises in the United
                                                    determines that the claimant is, and at                 States, its territories or possessions, the           § 842.42   Appeal of final denials.
                                                    the time of the incident was, friendly to               same law as if the claim was cognizable                  (a) A claimant may appeal the final
                                                    the U.S. A prisoner of war or an                        under the FTCA will be applied.                       denial of the claim. The claimant sends
                                                    interned enemy alien is not excluded as                    (2) Claims in foreign countries. In                the request, in writing, to the settlement
                                                    to a claim for damage, loss, or                         claims arising in a foreign country,                  authority that issued the denial letter
                                                    destruction of personal property in the                 where the claim is for personal injury,               within 60 days of the date the denial
                                                    custody of the U.S. otherwise payable.                  death, or damage to or loss of real or                letter was mailed. The settlement
                                                    Forward claims considered not payable                   personal property caused by an act or                 authority may waive the 60 day time
                                                    under this paragraph, with                              omission alleged to be negligent,                     limit for good cause.
                                                    recommendations for disposition, to                     wrongful, or otherwise involving fault of             *      *     *    *     *
                                                    USAF/JACC.                                              military personnel or civilian officers or               (c) Where the settlement authority
                                                       (gg) Arises out of the loss, miscarriage,            employees of the United States acting                 does not reach a final agreement on an
                                                    or negligent transmission of letters or                 within the scope of their employment,                 appealed claim, he or she sends the
                                                    postal matter by the U.S. Postal Service                liability or the United States is                     entire claim file to the next higher
                                                    or its agents or employees.                             determined according federal case law                 settlement authority, who is the
                                                       (hh) Is for damage to or loss of bailed              interpreting the FTCA. Where the FTCA                 appellate authority for that claim. Any
                                                    property when the bailor specifically                   requires application of the law of the                higher settlement authority may act
                                                    assumes such risk.                                      place where the act or omission                       upon an appeal.
                                                       (ii) Is for property damage, personal                occurred, settlement authorities will use
                                                    injury, or death occurring in a foreign                 the rules set forth in the currently                  *      *     *    *     *
                                                    country to an inhabitant of a foreign                   adopted edition of the Restatement of                 Subpart G—[Redesignated as Subpart
                                                    country.                                                the Law, published by the American                    E]
                                                       (jj) Is for interest incurred prior to the           Law Institute, to evaluate the liability of
                                                    payment of a claim.                                     the Air Force, subject to the following               ■ 37. Redesignate subpart G, consisting
                                                       (kk) Arises out of matters which are                 rules:                                                of §§ 842.55 through 842.68, as subpart
                                                    in litigation against the U.S.                             (i) Foreign rules and regulations                  E, consisting of §§ 842.45 through
                                                       (ll) Is for attorney fees or costs in                governing the operation of motor                      842.58, respectively.
                                                    connection with pursuing an                             vehicles (rules of the road) are applied              ■ 38. Revise newly redesignated
                                                    administrative or judicial remedy                       to the extent those rules are not                     § 842.47 to read as follows:
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                                                    against the U.S. or any of its agencies.                specifically superseded or preempted by
                                                       (mm) Is for bail, interest or                        United States military traffic                        § 842.47   Delegations of authority.
                                                    inconvenience expenses incurred in                      regulations.                                            (a) Settlement authority. (1) The
                                                    connection with the preparation and                        (ii) Absolute or strict liability will not         Secretary of the Air Force has the
                                                    presentation of the claim.                              apply for claims not arising from                     authority to:
                                                       (nn) Is for a failure to use a duty of               noncombat activities.                                   (i) Settle claims for payment of
                                                    care to keep premises owned or under                       (iii) Hedonic damages are not payable.             $100,000 or less.
                                                    the control of the U.S. safe for use for                   (iv) The collateral source doctrine                  (ii) Settle claims for more than
                                                    any recreational purpose, or for a failure              does not apply.                                       $100,000, pay the first $100,000, and


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                                                                          Federal Register / Vol. 81, No. 61 / Wednesday, March 30, 2016 / Proposed Rules                                             17627

                                                    report the excess to the Department of                  ■ 41. Amend newly redesignated                        ■ c. Redesignating paragraph (c) as
                                                    the Treasury for payment.                               § 842.50, by revising paragraph (a) to                paragraph (b).
                                                      (iii) Deny claims in any amount.                      read as follows:                                        The revision reads as follows:
                                                      (2) The Judge Advocate General,
                                                                                                            § 842.50    Statute of limitations.                   § 842.54   Payment criteria.
                                                    Deputy Judge Advocate General,
                                                    Director of Civil Law, and the Chief,                      (a) A claim must be presented to the                  The following criteria is considered
                                                    Deputy Chief and Branch Chiefs, Claims                  Air Force within 2 years after it accrues.            before determining liability.
                                                    and Tort Litigation Staff are FCCs and                  It accrues when the claimant discovers                   (a) The incident causing the damage
                                                    have delegated authority to:                            or reasonably should have discovered                  or injury must arise in a foreign country
                                                      (i) Settle claims for payment of                      the existence of the act that resulted in             and be caused by noncombatant
                                                    $100,000 or less.                                       the claimed loss or injury.                           activities of the U.S. Armed Forces or by
                                                      (ii) Deny claims in any amount.                       *      *     *     *    *                             the negligent or wrongful acts of civilian
                                                      (3) The SJAs of the Air Force                         ■ 42. Amend newly redesignated                        employees or military members of the
                                                    component commander of the U.S.                         § 842.52, by revising paragraphs (a) and              Armed Forces.
                                                    geographic combatant commands are                       (b) to read as follows:                                  (1) It is a prerequisite to U.S.
                                                    FCC for claims arising in their                         § 842.52    Who are proper claimants.                 responsibility if the employee causing
                                                    respective combatant command AORs                                                                             the damage or injury is a local
                                                    and may deny claims of $50,000 or less                    (a) Foreign nationals. In a wrongful
                                                                                                                                                                  inhabitant, a prisoner of war, or an
                                                    and will pay claims filed in any amount                 death case, if the decedent is an
                                                                                                                                                                  interned enemy alien. These persons are
                                                    when payment is for $50,000 or less.                    inhabitant of a foreign country, even
                                                                                                                                                                  ‘‘employees’’ within the meaning of the
                                                      (b) Redelegating settlement authority.                though his or her survivors are U.S.
                                                                                                                                                                  Foreign Claims Act (FCA) only when in
                                                    A settlement authority appointed as a                   inhabitants, the FCA will apply.
                                                                                                                                                                  the service of the United States.
                                                    FCC in paragraph (a) of this section may                  (b) U.S. nationals residing abroad,
                                                                                                                                                                  Ordinarily, a slight deviation as to time
                                                    appoint one or more subordinate judge                   unless the claim arises from a benefit,
                                                                                                                                                                  or place does not constitute a departure
                                                    advocates or civilian attorneys to act as               privilege or service provided to them by
                                                                                                                                                                  from the scope of employment. The
                                                    FCC, and redelegate all or part of that                 the U.S. Government, or they reside in
                                                                                                                                                                  purpose of the activity and whether it
                                                    settlement authority to such persons.                   the foreign country primarily because
                                                                                                                                                                  furthers the general interest of the
                                                      (c) Settlement negotiations. A                        they are employed directly by the
                                                                                                                                                                  United States is considered. If the claim
                                                    settlement authority may settle a claim                 United States, or sponsored by or
                                                                                                                                                                  arose from the operation or use of a U.S.
                                                    in any sum within its settlement                        accompanying such a person, or
                                                                                                                                                                  Armed Forces vehicle or other
                                                    authority, regardless of the amount                     employed by a U.S. civilian contractor
                                                                                                                                                                  equipment by such a person, pay it
                                                    claimed. Send uncompromised claims                      in furtherance of a contract with the
                                                                                                                                                                  provided local law imposes liability on
                                                    in excess of the delegated authority                    U.S. Government, or sponsored by or
                                                                                                                                                                  the owner of the vehicle or other
                                                    through claims channels to the level                    accompanying such a person.
                                                                                                                                                                  equipment in the circumstances
                                                    with settlement authority. Unsuccessful                 *     *     *     *     *                             involved.
                                                    negotiations at one level do not bind                   ■ 43. Amend newly redesignated
                                                                                                                                                                     (2) It is immaterial when the claim
                                                    higher authority.                                       § 842.53 by revising paragraphs (b), (c),             arises from the acts or omissions of any
                                                      (d) Special exceptions. Do not settle                 and (e) to read as follows:                           U.S. Armed Forces member or employee
                                                    claims for medical malpractice without                  § 842.53    Who are not proper claimants.             not listed in § 842.64(c)(1) of this part.
                                                    HQ USAF/JACC approval.                                                                                        The Act imposes responsibility on the
                                                                                                            *      *     *     *     *
                                                    ■ 39. Amend newly redesignated                                                                                United States when it places a US
                                                                                                              (b) Persons determined to be U.S.
                                                    § 842.48, by revising paragraph (a) to                                                                        citizen or non-U.S. citizen employee in
                                                                                                            inhabitants. U.S. inhabitants include
                                                    read as follows:                                                                                              a position to cause the injury or damage.
                                                                                                            dependents of U.S. military personnel
                                                                                                            and U.S. Government civilian                          If the cause is a criminal act clearly
                                                    § 842.48   Filing a claim.
                                                                                                            employees.                                            outside the scope of employment,
                                                       (a) How and when filed. A claim is                                                                         ordinarily pay the claim and consider
                                                    filed when the Air Force receives from                    (c) Foreign military personnel
                                                                                                            suffering personal injury, or death                   disciplinary action against the offender.
                                                    a claimant or authorized agent a
                                                                                                            arising incident to service or pursuant to            *      *      *     *     *
                                                    properly completed SF 95 or other
                                                                                                            combined and/or joint military                        ■ 45. Amend newly redesignated
                                                    signed and written demand for money
                                                    damages in a sum certain. A claim may                   operations. Such operations include, but              § 842.55 by:
                                                    be presented orally only if oral claims                 are not limited to, military exercises and            ■ a. Revising paragraphs (a), (c), (f), (h),
                                                    are the custom in the country where the                 United Nations, NATO, and other                       (m), (o) and (q).
                                                    incident occurred and the claimant is                   regional peacekeeping and                             ■ b. Adding paragraphs (s) and (t).
                                                    functionally illiterate. In any case where              humanitarian missions.                                   The revisions and additions read as
                                                    an oral claim is made, claims personnel                 *      *     *     *     *                            follows:
                                                    must promptly reduce the claim to                         (e) National governments and their
                                                    writing with all particulars carefully                  political subdivisions engaging in war                § 842.55   Claims not payable.
                                                    noted. A claim belonging to another                     or armed conflict with the United States                A claim is not payable when it:
                                                    agency is promptly transferred to the                   or its allies. This includes factions that              (a) Is waived under an applicable
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                                                    appropriate agency.                                     have not necessarily been recognized by               international agreement, or pursuant to
                                                    *      *    *     *     *                               the international community as a                      an applicable international agreement, a
                                                    ■ 40. Revise newly redesignated
                                                                                                            legitimate nation state.                              receiving state should adjudicate and
                                                    § 842.49 to read as follows:                            *      *     *     *     *                            pay the claim. However, if a foreign
                                                                                                            ■ 44. Amend newly redesignated                        government subject to such an
                                                    § 842.49   Advance payments.                            § 842.54 by:                                          international agreement disputes its
                                                      Subpart P outlines procedures for                     ■ a. Revising paragraph (a).                          legal responsibilities under the
                                                    advance payments.                                       ■ b. Removing paragraph (b).                          agreement, and the claimant has no


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                                                    17628                 Federal Register / Vol. 81, No. 61 / Wednesday, March 30, 2016 / Proposed Rules

                                                    other means of compensation, USAF/                      law, customs, and standards of the                    § 842.58 Right of subrogation, indemnity,
                                                    JACC may authorize payment.                             country where the claim arose, except:                and contribution.
                                                    *       *     *     *     *                                (1) Causation is determined based                     The Air Force has all the rights of
                                                       (c) Is for attorney fees, punitive                   upon general principles of U.S. tort law              subrogation, indemnity and
                                                    damages, a judgment or interest on a                    found in federal case law and standard                contribution, as local law permits.
                                                    judgment, bail, or court costs. FCC                     legal publications.                                   However, settlement authorities will not
                                                    should consider providing early notice                     (2) Joint and several liability does not           seek contribution or indemnity from
                                                    to claimants that attorney fees are not                 apply. Payment is based solely on the                 U.S. military members or civilian
                                                    payable as an item of damage under the                  portion of loss, damage, injury or death              employees whose conduct gave rise to
                                                    FCA.                                                    attributable to the U.S. Armed Forces.                U.S. government liability, or whenever
                                                    *       *     *     *     *                                (3) If lost income or lost profits is              it would be harmful to international
                                                       (f) Is a paternity claim.                            recoverable under the law where the                   relations.
                                                    *       *     *     *     *                             claim arose, they shall be limited to net
                                                                                                                                                                  Subpart H—[Redesignated as Subpart
                                                       (h) Results wholly from the negligent                lost income or net lost profits, taking
                                                                                                                                                                  F]
                                                    or wrongful act of the claimant or agent.               into account appropriate deductions for
                                                    *       *     *     *     *                             taxes, regular business expenditures,                 ■ 49. Redesignate subpart H, consisting
                                                       (m) Results from an action by an                     and in the case of wrongful death,                    of §§ 842.69 through 842.72, as subpart
                                                    enemy, or directly or indirectly from an                personal consumption during the loss                  F, consisting of §§ 842.59 through
                                                    act of the U.S. armed forces in combat,                 period.                                               842.62, respectively.
                                                    except that a claim may be allowed if it                   (b) Settlement authorities will not                ■ 50. Revise newly redesignated
                                                    arises from an accident or malfunction                  deduct compensation from collateral                   § 842.59 to read as follows:
                                                    incident to the operation of an aircraft                sources except for:
                                                    of the U.S. armed forces, including its                                                                       § 842.59   Scope of this subpart.
                                                                                                               (1) Direct payments by a member or
                                                    airborne ordnance, indirectly related to                civilian employee of the U.S. Armed                      This subpart governs Air Force
                                                    combat, and occurring while preparing                   Forces for damages (not solatia).                     actions in investigating, processing, and
                                                    for or going to, or returning from a                       (2) Any payments recovered or                      settling claims under the International
                                                    combat mission.                                         recoverable from an insurance policy                  Agreement Claims Act.
                                                                                                            when premiums were paid, directly or                  ■ 51. Amend newly redesignated
                                                    *       *     *     *     *
                                                       (o) Arises out of personal activities of             indirectly, by the United States, or a                § 842.60 by revising paragraphs (a), (d),
                                                    family members, guests, servants, or                    member or civilian employee of the U.S.               (e), (f) and (g) to read as follows:
                                                    activities of the pets of members and                   Armed Forces; or when the member or                   § 842.60   Definitions.
                                                    employees of the U.S. Armed Forces.                     employee has the benefit of the
                                                                                                                                                                  *      *     *     *    *
                                                    *       *     *     *     *                             insurance (such as when a U.S. member
                                                                                                                                                                     (a) Civilian component. Civilian
                                                       (q) Is covered under U..S admiralty or               or employee borrows a vehicle of a local
                                                                                                                                                                  personnel accompanying and employed
                                                    maritime laws, unless authorized by                     national, and the vehicle carries
                                                                                                                                                                  by an international agreement
                                                    The Judge Advocate General or Chief,                    insurance for the benefit of any driver
                                                                                                                                                                  contracting force. Local employees,
                                                    Claims and Tort Litigation Staff.                       with permission to drive the vehicle).
                                                                                                                                                                  contractor employees, or members of the
                                                    *       *     *     *     *                             ■ 47. Revise newly redesignated
                                                                                                                                                                  American Red Cross are not a part of the
                                                       (s) Is not in the best interest of the               § 842.57 to read as follows:                          civilian component unless specifically
                                                    United States, is contrary to public                                                                          included in the agreement.
                                                                                                            § 842.57    Reconsideration of final denials.
                                                    policy, or otherwise contrary to the
                                                                                                               This section provides the procedures               *      *     *     *    *
                                                    basic intent of the FCA. Claims
                                                                                                            used to reconsider a final denial.                       (d) Legally responsible. A term of art
                                                    considered not payable on this basis
                                                                                                               (a) An FCC has the inherent authority              providing for settlement of claims under
                                                    will be forwarded to USAF/JACC for
                                                                                                            to reconsider a final decision. The mere              cost sharing international agreements in
                                                    final decision.
                                                       (t) Is presented by a national, or a                 fact that a request for reconsideration is            accordance with the law of the receiving
                                                    corporation controlled by a national, of                received does not obligate the                        state. Often, employees who are local
                                                    a country at war or engaged in armed                    settlement authority to reopen the                    inhabitants, not part of the civilian
                                                    conflict with the United States, or any                 claim.                                                component of the force, could cause the
                                                    country allied with such enemy country                                                                        sending state to be legally responsible
                                                                                                               (b) The FCC does not mention a
                                                    unless the settlement authority                                                                               under a respondeat superior theory.
                                                                                                            reconsideration right in the original
                                                    determines the claimant is, and at the                                                                           (e) Receiving state. The country where
                                                                                                            denial letter.
                                                    time of the incident was, friendly to the                                                                     the force or civilian component of
                                                                                                               (c) A settlement authority must                    another contracting party is temporarily
                                                    United States. EXCEPTION: A prisoner                    reconsider the final action when there
                                                    of war or interned enemy alien is not                                                                         located. It is often thought of as the
                                                                                                            is:                                                   ‘‘host nation.’’
                                                    excluded from filing a claim for damage,                   (1) New and material evidence
                                                    loss, or destruction of personal property                                                                        (f) Sending state. The country sending
                                                                                                            concerning the claim or,                              the force or civilian component to the
                                                    within the U.S. Armed Forces’ custody                      (2) Obvious errors in the original
                                                    if the claim is otherwise payable.                                                                            receiving State. In cases where U.S.
                                                                                                            decision.                                             personnel are stationed in a foreign
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                                                    ■ 46. Revise newly redesignated
                                                                                                               (d) The FCC must document in the                   country, the U.S. is the sending state.
                                                    § 842.56 to read as follows:
                                                                                                            claim file the reason for reconsideration.               (g) Third parties. A term of art used
                                                    § 842.56   Applicable law.                                 (e) A FCC above the original                       in International Agreements. Parties
                                                      This section provides guidance to                     settlement authority may direct a claim               other than members of the force and
                                                    determine the applicable law for                        be forwarded to a higher FCC for                      civilian component of the sending or
                                                    assessment of liability.                                reconsideration.                                      receiving States. Dependents, tourists,
                                                      (a) In adjudicating FCA claims,                       ■ 48. Revise newly redesignated                       and other noninhabitants of a foreign
                                                    settlement authorities will follow the                  § 842.58 to read as follows:                          country are third parties (and therefore


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                                                                          Federal Register / Vol. 81, No. 61 / Wednesday, March 30, 2016 / Proposed Rules                                                17629

                                                    can generally make a claim under a                      G, consisting of §§ 842.63 through                    ■ 61. Amend newly redesignated
                                                    SOFA) unless the international                          842.71, respectively.                                 § 842.74 by:
                                                    agreement, or an understanding between                  ■ 55. Revise newly redesignated                       ■ a. Revising paragraph (a)(1)(i).
                                                    the countries involved, specifically                    § 842.63 to read as follows:                          ■ b. Removing and reserving paragraph
                                                    excludes them.                                                                                                (a)(1)(ii) and removing paragraph
                                                    ■ 52. Revise newly redesignated                         § 842.63    Scope of this subpart.                    (a)(1)(iii).
                                                    § 842.61 to read as follows:                              This subpart explains how to settle                 ■ c. Revising paragraph (b)(3)(iv).
                                                                                                            and pay claims against the United                        The revisions read as follows:
                                                    § 842.61   Delegations of authority.                    States, for property damage, personal
                                                      (a) Staff Judge Advocates of the Air                  injury, or death incident to the use of a             § 842.74   Delegations of authority.
                                                    Force component commands of the U.S.                    government vehicle or any other                         (a) * * *
                                                    geographic combatant commands will,                     government property on a government                     (1) * * *
                                                    within their combatant command AORs,                    installation which are not payable under                (i) Settle or deny a claim in any
                                                    fulfill U.S. obligations concerning                     any other statute.                                    amount. Settlements for payment of
                                                    claims abroad subject to 10 U.S.C. 2734a                ■ 56. Amend newly redesignated                        more than $500,000 are certified to
                                                    for which the Air Force has settlement                  § 842.65 by revising paragraph (a)(5) to              Congress for payment.
                                                    authority. Consistent with 10 U.S.C.                    read as follows:                                      *     *      *    *     *
                                                    2734a and the international agreement,                                                                          (b) * * *
                                                    they may reimburse or pay the pro rata                  § 842.65    Delegations of authority.
                                                                                                                                                                    (3) * * *
                                                    share of a claim as agreed, or if                         (a) * * *                                             (iv) The Chief and Deputy Chief,
                                                    inconsistent with the IACA or the                         (5) SJA of the Air Force component
                                                                                                                                                                  Claims and Tort Litigation Division.
                                                    international agreement, they may                       commands of the U.S. geographic                       ■ 62. In newly redesignated § 842.75,
                                                    object to a bill presented,                             combatant commands.                                   add paragraph (c) to read as follows:
                                                      (b) The Secretary of the Air Force, The               *     *    *     *     *
                                                    Judge Advocate General, the Deputy                      ■ 57. Amend newly redesignated                        § 842.75 Reconsidering claims against the
                                                    Judge Advocate General, The Director of                 § 842.68 by:                                          United States.
                                                    Civil Law and Chief of the Claims and                   ■ a. Removing the brackets in the                     *     *     *     *     *
                                                    Tort Litigation Division may also                       second sentence of paragraph (a).                       (c) There is no time limit for
                                                    exercise settlement authority under 10                  ■ b. Revising paragraph (c).                          submitting a request for reconsideration,
                                                    U.S.C. 2734a.                                             The revision reads as follows:                      but it is within the discretion of the
                                                      (c) Redelegation of authority. A                                                                            settlement authority to decline to
                                                    settlement authority may redelegate his                 § 842.68    Claims payable.
                                                                                                                                                                  reconsider a claim based on the amount
                                                    or her authority to a subordinate judge                 *     *     *    *    *                               of time passed since the claim was
                                                    advocate or civilian attorney in writing.                 (c) Arose from the use of a                         originally denied.
                                                      (d) Authority to reduce, withdraw,                    government vehicle at any place or from
                                                    and restore settlement authority. Any                   the use of other government property on               Subpart K—[Removed]
                                                    superior settlement authority may                       a government installation, and
                                                    reduce, withdraw, or restore delegated                                                                        ■ 63. Remove subpart K, consisting of
                                                                                                            *     *     *    *    *
                                                    authority.                                              ■ 58. Amend newly redesignated
                                                                                                                                                                  §§ 842.86 through 842.91.
                                                    ■ 53. Amend newly redesignated                                                                                ■ 64. Add new subpart I, consisting of
                                                                                                            § 842.69 by adding paragraph (e) to read
                                                    § 842.62 by revising paragraph (b) to                   as follows:                                           §§ 842.76 through 842.79.
                                                    read as follows:                                                                                              Subpart I—Claims Under the Federal Tort
                                                                                                            § 842.69    Claims not payable.                       Claims Act (28 U.S.C. 1346(b), 2402, 2671,
                                                    § 842.62   Filing a claim.                              *     *    *     *      *                             2672, 2674–2680)
                                                    *      *    *      *    *                                 (e) For pain and suffering or other                 Sec.
                                                       (b) Claims arising in the United                     general damages.                                      842.76 Scope of this subpart.
                                                    States. The claimant files tort claims                  ■ 59. Revise newly redesignated                       842.77 Delegations of authority.
                                                    arising from the act or omission of                     § 842.71 to read as follows:                          842.78 Settlement agreements.
                                                    military or civilian personnel of another                                                                     842.79 Administrative claim; when
                                                    contracting party at any U.S. military                  § 842.71    Settlement agreement.                          presented.
                                                    installation. The Staff Judge Advocate                     Do not pay a claim unless the
                                                    for the installation where such military                claimant accepts the amount offered in                Subpart I—Claims Under the Federal
                                                    or civilian personnel is assigned or                    full satisfaction of the claim and signs              Tort Claims Act (28 U.S.C. 1346(b),
                                                    attached will promptly notify the                       a settlement agreement to that effect, in             2402, 2671, 2672, 2674–2680)
                                                    Foreign Claims Branch of USAF/JACC                      which the claimant agrees to release any              § 842.76   Scope of this subpart.
                                                    as well as the Commander, U.S. Army                     and all claims against the United States,
                                                                                                            its employees and agents arising from                   This subpart, promulgated under the
                                                    Claims Service. If the files said claim at
                                                                                                            the incident in question. Use the                     authority of 28 CFR 14.11, governs
                                                    an installation other than the location
                                                                                                            settlement agreement approved for use                 claims against the United States for
                                                    where said military or civilian
                                                                                                            by the Department of Justice for the                  property damage, personal injury, or
                                                    personnel is assigned, the Staff Judge
                                                                                                            settlement of FTCA claims, tailored to                death, from the negligent or wrongful
                                                    Advocate for that installation will
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                                                                                                            this claim.                                           acts or omission of Air Force military or
                                                    promptly forward the claim to the
                                                                                                                                                                  civilian personnel while acting within
                                                    appropriate installation Staff Judge
                                                                                                            Subpart J—[Redesignated as Subpart                    the scope of their employment.
                                                    Advocate.
                                                                                                            H]                                                    § 842.77   Delegations of authority.
                                                    Subpart I—[Redesignated as Subpart
                                                                                                            ■ 60. Redesignate subpart J, consisting                 (a) Settlement authority. (1) The
                                                    G]
                                                                                                            of §§ 842.82 through 842.85, as subpart               following individuals are delegated the
                                                    ■ 54. Redesignate subpart I, consisting                 H, consisting of §§ 842.72 through                    full authority of the Secretary of the Air
                                                    of §§ 842.73 through 842.81 as subpart                  842.75, respectively.                                 Force to settle and deny claims:


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                                                    17630                 Federal Register / Vol. 81, No. 61 / Wednesday, March 30, 2016 / Proposed Rules

                                                       (i) The Judge Advocate General.                      government property and lost wages of                 § 842.85 Referring a claim to the U.S.
                                                       (ii) The Deputy Judge Advocate                       Air Force servicemembers through                      Attorney or the Department of Justice.
                                                    General.                                                negligent or wrongful acts. It does not                 If collection efforts are unsuccessful,
                                                       (iii) The Director of Civil Law.                     cover admiralty, hospital recovery, or                AFLOA/JACC may refer a claim to the
                                                       (iv) The Division Chief of Claims and                nonappropriated fund claims.                          appropriate U.S. Attorney’s Office or the
                                                    Tort Litigation.                                        ■ 67. Amend newly redesignated                        Department of Justice for initiation of a
                                                       (v) The Division Chief of                            § 842.81 by revising paragraph (a) to                 lawsuit.
                                                    Environmental Law and Litigation.                       read as follows:
                                                       (b) Redelegation of authority. A                                                                           Subpart M—[Redesignated as Subpart
                                                    settlement authority may be redelegated,                § 842.81    Delegations of authority.                 K]
                                                    in writing, to a subordinate judge                         (a) Settlement authority. (1) The                  ■ 71. Redesignate subpart M, consisting
                                                    advocate or civilian attorney. The Chief,               following individuals have delegated                  of §§ 842.100 through 842.114, as
                                                    AFLOA/JACC may redelegate up to                         authority to settle, compromise,                      subpart K, consisting of §§ 842.88
                                                    $25,000, in writing, to paralegals                      suspend, or terminate action on claims                through 842.102, respectively
                                                    assigned to AFLOA/JACC and, upon                        asserted for $100,000 or less and to                  ■ 72. Revise newly redesignated
                                                    request, may authorize installation Staff               accept full payment on any claim:                     § 842.88 to read as follows:
                                                    Judge Advocates to redelegate their                        (i) The Judge Advocate General.
                                                    settlement authority to paralegals under                   (ii) The Deputy Judge Advocate                     § 842.88   Scope of this subpart.
                                                    their supervision.                                      General.                                                This subpart establishes policies and
                                                       (c) Authority to reduce, withdraw, and                  (iii) The Director of Civil Law.                   procedures for all administrative claims
                                                    restore settlement authority. Any                          (iv) Chief, Deputy Chief, and Branch               under the National Guard Claims Act for
                                                    superior settlement authority may                       Chiefs, Claims and Tort Litigation Staff.             which the Air Force has assigned
                                                    reduce, withdraw, or restore delegated                     (2) Installation staff judge advocates             responsibility. Unless otherwise
                                                    authority.                                              have authority to assert claims in any                outlined in this subpart, follow
                                                       (d) Settlement negotiations. A                       amount, accept full payment on any                    procedures as outlined in Subpart E for
                                                    settlement authority may settle a claim                 claim and to compromise, suspend or                   claims arising out of noncombat
                                                    filed in any amount for a sum within the                terminate action on claims asserted for               activities.
                                                    delegated authority. Unsettled claims in                $25,000 or less.                                      ■ 73. Revise newly redesignated
                                                    excess of the delegated authority will be                                                                     § 842.89 to read as follows:
                                                    sent to the next highest level with                     *       *    *     *      *
                                                    settlement authority. Unsuccessful                      ■ 68. Amend newly redesignated                        § 842.89   Definitions.
                                                    negotiations at one level do not bind                   § 842.82 by revising paragraphs (a)(2),                  (a) Air National Guard (ANG). The
                                                    higher authority.                                       (c), and (e) to read as follows:                      federally recognized Air National Guard
                                                                                                                                                                  of each state, the District of Columbia,
                                                    § 842.78   Settlement agreements.                       § 842.82    Assertable claims.
                                                                                                                                                                  the Commonwealth of Puerto Rico, the
                                                      The claimant must sign a settlement                   *     *     *    *     *                              Virgin Islands, and Guam.
                                                    agreement and general release before                      (a) * * *                                              (b) ANG member. An ANG member is
                                                    any payment is made.                                      (2) Less than $100 but collection is                one who is performing duty under 32
                                                                                                            practicable and economical.                           U.S.C., section 316, 502, 503, 504, or
                                                    § 842.79 Administrative claim; when                                                                           505 for which the member is entitled to
                                                                                                            *     *     *    *     *
                                                    presented.
                                                                                                              (c) The claim is for property damage                pay from the United States or for which
                                                      When the Air Force is the proper                      arising from the same incident as a                   the member has waived pay from the
                                                    agency to receive a claim pursuant to 28                hospital recovery claim.                              United States.
                                                    CFR 14.2(b), for purposes of the                                                                                 (c) ANG duty status—(1) Active
                                                    provisions of 28 U.S.C. 2401(b), 2672                   *     *     *    *     *
                                                                                                              (e) The claim is assertable as a                    federal service. ANG members may
                                                    and 2675, a claim shall be deemed to                                                                          serve on active Federal duty under 10
                                                    have been presented when it is received                 counterclaim under an international
                                                                                                            agreement. (The claim should be                       U.S.C. to augment the active Air Force
                                                    by:                                                                                                           under certain circumstances or for
                                                      (a) The office of the Staff Judge                     processed under subpart G of this part).
                                                                                                                                                                  certain types of duty or training (e.g.,
                                                    Advocate of the Air Force installation                  *     *     *    *     *                              overseas training exercises and ANG
                                                    nearest the location of the incident; or                ■ 69. Amend newly redesignated                        alert duty). Duty under 10 U.S.C. does
                                                      (b) The Claims and Tort Litigation                    § 842.83 by revising paragraph (b)(2)                 not fall under this subpart.
                                                    Division, 1500 West Perimeter Road,                     and adding paragraph (f) to read as                      (2) Federally funded duty. ANG
                                                    Suite 1700, Joint Base Andrews, MD                      follows:                                              members perform specified federally
                                                    20762.                                                                                                        funded duty or training under 32 U.S.C.
                                                                                                            § 842.83    Non-assertable claims.
                                                                                                                                                                  such as weekend drills, annual training,
                                                    Subpart L—[Redesignated as Subpart                      *     *     *    *      *                             field exercises, range firing, military
                                                    J]                                                        (b) * * *                                           schooling, full time unit support, or
                                                                                                              (2) Caused by a person who has                      recruiting duties. Duty under 32 U.S.C.
                                                    ■  65. Redesignate subpart L, consisting
                                                                                                            accountability and responsibility for the             falls under this subpart for noncombat
                                                    of §§ 842.92 through 842.99, as subpart
                                                                                                            damaged property under the Report of                  activities.
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                                                    J, consisting of §§ 842.80 through
                                                                                                            Survey system.                                           (3) State duty. State duty is duty not
                                                    842.87, respectively.
                                                    ■ 66. Revise newly redesigated § 842.80                 *     *     *    *      *                             authorized by federal law but required
                                                    to read as follows:                                       (f) Loss or damage caused by an                     by the governor of the state and paid for
                                                                                                            employee of another federal agency                    from state funds. Such duty includes
                                                    § 842.80   Scope of this subpart.                       while the employee was acting in the                  civil emergencies (natural or other
                                                      This subpart describes how to assert,                 scope of his employment.                              disasters), civil disturbances (riots and
                                                    administer, and collect claims for                      ■ 70. Revise newly redesignated                       strikes), and transportation
                                                    damage to or loss or destruction of                     § 842.85 to read as follows:                          requirements for official state functions,


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                                                                          Federal Register / Vol. 81, No. 61 / Wednesday, March 30, 2016 / Proposed Rules                                               17631

                                                    public health, or safety. State duty does               § 842.92    Advance payments.                         party’s interest, for losses partially paid
                                                    not fall under this subpart.                              Subpart P of this part sets forth                   by insurers with subrogation rights.
                                                      (d) ANG technicians. An ANG                           procedures for such payments.                           (f) Authorized agents signing claims
                                                    technician is a Federal employee                        ■ 77. Revise newly redesignated                       show their title or legal capacity and
                                                    employed under 32 U.S.C. 709. Tort                      § 842.93 to read as follows:                          present evidence of authority to present
                                                    claims arising out of his or her activity                                                                     the claims.
                                                                                                            § 842.93    Statute of limitations.                   ■ 79. Revise newly redesignated
                                                    are settled under the Federal Tort
                                                    Claims Act (FTCA).                                         (a) A claim must be filed in writing               § 842.95 to read as follows:
                                                    ■ 74. Amend newly redesignated                          within 2 years after it accrues. It is
                                                                                                            deemed to be filed upon receipt by The                § 842.95     Who are proper claimants.
                                                    § 842.90 by:
                                                    ■ a. Removing the introductory text;                    Judge Advocate General, USAF/JACC, or                   (a) Citizens and inhabitants of the
                                                    ■ b. Revising paragraphs (a)(4) and (5)                 a Staff Judge Advocate of the Air Force.              United States. U.S. inhabitants includes
                                                    and (b).                                                A claim accrues when the claimant                     dependents of the U.S. military
                                                    ■ c. Removing paragraph (f)(1) and
                                                                                                            discovers or reasonably should have                   personnel and federal civilian
                                                    redesignating paragraphs (f)(2) and (3)                 discovered the existence of the act that              employees temporarily outside the U.S.
                                                    as (f)(1) and (2), respectively.                        resulted in the claimed loss. The same                for purposes of U.S. government service.
                                                      The revisions read as follows:                        rules governing accrual pursuant to the                 (b) U.S. military personnel and
                                                                                                            Federal Tort Claims Act should be                     civilian employees. NOTE: These
                                                    § 842.90   Delegations of authority.                    applied with respect to the National                  personnel are not proper claimants for
                                                       (a) * * *                                            Guard Claims Act. Upon receipt of a                   claims for personal injury or death that
                                                       (4) The SJAs of the Air Force                        claim that properly belongs with                      occurred incident to their service.
                                                    component commander of the U.S.                         another military department, the claim                  (c) Foreign military personnel when
                                                    Geographic combatant commands for                       is promptly transferred to that                       the damage or injury occurs in the U.S.
                                                    claims arising within their respective                  department.                                           Do not pay for claims under the MCA
                                                    combatant command areas of                                 (b) The statutory time period excludes             for personal injury or death of a foreign
                                                    responsibility have delegated authority                 the day of the incident and includes the              military personnel that occurred
                                                    to settle claims payable or to deny                     day the claim was filed.                              incident to their service.
                                                    claims filed for $25,000 or less.                          (c) A claim filed after the statute of               (d) States, state agencies, counties, or
                                                       (5) SJAs of GCMs in PACAF and                        limitations has run is considered if the              municipalities, or their political
                                                    USAFE have delegated authority to                       U.S. is at war or in an armed conflict                subdivisions.
                                                    settle claims payable, and deny claims                  when the claim accrues or if the U.S.                   (e) Subrogees of proper claimants to
                                                    filed, for $15,000 or less.                             enters a war or armed conflict after the              the extent they have paid for the claim
                                                       (b) Redelegation of authority. A                     claim accrues, and if good causes shows               in question.
                                                    settlement authority may redelegate up                  how the war or armed conflict                         ■ 80. Revise newly redesignated
                                                    to $25,000 of settlement authority to a                 prevented the claimant from diligently                § 842.96 to read as follows:
                                                    subordinate judge advocate or civilian                  filing the claim within the statute of
                                                                                                            limitations. But in no case will a claim              § 842.96     Who are not proper claimants.
                                                    attorney. This redelegation must be in
                                                                                                            be considered if filed more than two                    (a) Governments of foreign nations,
                                                    writing and can be for all claims or
                                                                                                            years after the war or armed conflict                 their agencies, political subdivisions, or
                                                    limited to a single claim. The Chief,
                                                                                                            ends.                                                 municipalities.
                                                    AFLOA/JACC may redelegate up to
                                                                                                            ■ 78. Revise newly redesignated                         (b) Agencies and Nonappropriated
                                                    $25,000, in writing, to paralegals
                                                                                                            § 842.94 to read as follows:                          fund instrumentalities of the U.S.
                                                    assigned to AFLOA/JACC and, upon
                                                                                                                                                                  Government including the District of
                                                    request, may authorize installation Staff               § 842.94    Who may file a claim.                     Columbia government.
                                                    Judge Advocates to redelegate their                       The following individuals may file a                  (c) Inhabitants of foreign countries.
                                                    settlement authority to paralegals under                claim under this subpart.                               (d) The state, territory and its political
                                                    their supervision.                                        (a) Owners of the property or their                 subdivisions whose Air National Guard
                                                    *      *     *    *     *                               authorized agents may file claims for                 member caused the loss.
                                                    ■ 75. Revise newly redesignated                         property damage.                                        (e) Subrogees of the claimants in
                                                    § 842.91 to read as follows:                              (b) Injured persons or their duly                   paragraphs (a) through (d) of this
                                                                                                            authorized agents may file claims for                 section.
                                                    § 842.91   Filing a claim.
                                                                                                            personal injury.                                      ■ 81. Revise newly redesignated
                                                       (a) Elements of a proper claim. A                      (c) Duly appointed guardians of minor               § 842.97 to read as follows:
                                                    claim is must be filed on a Standard                    children or any other persons legally
                                                    Form 95 or other written document. It                   entitled to do so under applicable local              § 842.97     Claims payable.
                                                    must be signed by the Claimant or                       law may file claims for minors’ personal                Claims arising from noncombat
                                                    authorized agent, be for money damages                  injuries.                                             activities of the United States when
                                                    in a sum certain, and lay out a basic                     (d) Executors or administrators of a                caused by ANG members performing
                                                    statement as to the nature of the claim                 decedent’s estate or another person                   duty under 32 U.S.C. and acting within
                                                    that will allow the Air Force to                        legally entitled to do so under                       the scope of their employment, whether
                                                    investigate the allegations contained
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                                                                                                            applicable local law, may file claims                 or not such injuries or damages arose
                                                    therein.                                                based on:                                             out of their negligent or wrongful acts or
                                                       (b) Amending a claim. A claimant                       (1) An individual’s death.                          omissions.
                                                    may amend a claim at any time prior to                    (2) A cause of action surviving an                  ■ 82. In newly redesignated § 842.98,
                                                    final action. To amend a claim the                      individual’s death.                                   revise paragraphs (a), (b), and (c) to read
                                                    claimant or his or her authorized agent                   (e) Insurers with subrogation rights                as follows:
                                                    must submit a written, signed demand.                   may file claims for losses paid in full by
                                                    ■ 76. Revise newly redesignated                         them. The parties may file claims jointly             § 842.98     Claims not payable.
                                                    § 842.92 to read as follows:                            or individually, to the extent of each                *        *    *     *     *


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                                                    17632                 Federal Register / Vol. 81, No. 61 / Wednesday, March 30, 2016 / Proposed Rules

                                                      (a) Is covered by the FTCA, FCA,                        (i) Absolute or strict liability will not           by the law of the situs or under contract.
                                                    IACA, 10 U.S.C. 2734a and 2734b, Air                    apply for claims not arising from                     Do not seek contribution or indemnity
                                                    Force Admiralty Claims Act (AFACA),                     noncombat activities.                                 from ANG members whose conduct
                                                    10 U.S.C. 9801–9804, 9806, MCA, 10                        (ii) Hedonic damages are not payable                gave rise to Government liability.
                                                    U.S.C. 2733, or covered under the                         (iii) The collateral source doctrine                ■ 86. Revise newly redesignated
                                                    Military Personnel and Civilian                         will not apply                                        § 842.102 to read as follows:
                                                    Employees’ Claims Act (MPCECA), 31                        (iv) Joint and several liability does not
                                                    U.S.C. 3701, 3721.                                      apply. Payment will be made only upon                 § 842.102   Attorney fees.
                                                      (b) NGCA claims arising from                          the portion of loss, damage, injury or                   In the settlement of any claim
                                                    noncombat activities in the U.S. are not                death attributable to the Armed Forces                pursuant to 32 U.S.C. 715 and this
                                                    covered by the FTCA because more                        of the United States.                                 subpart, attorney fees will not exceed 20
                                                    elements are needed to state an FTCA                      (v) Future economic loss will be                    percent of any award provided that
                                                    claim than are needed to state a claim                  discounted to present value after                     when a claim involves payment of an
                                                    under the NGCA for noncombat                            deducting for federal income taxes and,               award over $1,000,000, attorney fees on
                                                    activities. All FTCA claims are based on                in cases of wrongful death, personal                  that part of the award exceeding
                                                    elements of traditional tort liability (i.e.,           consumption.                                          $1,000,000 may be determined by the
                                                    duty, breach, causation, and damages);                    (c) Do not approve payment for:                     Secretary of the Air Force. For the
                                                    that is, they are fault based. Noncombat                  (1) Punitive damages.                               purposes of this paragraph, an award is
                                                    activity claims under the NGCA are                        (2) Cost of medical or hospital                     deemed to be the cost to the United
                                                    based solely on causation and damages.                  services furnished at U.S. expense.                   States at the time of purchase of a
                                                    Because NGCA claims for noncombat                         (3) Cost of burial expenses paid by the             structured settlement, and not its future
                                                    activities are not fault based, they are                United States.                                        value.
                                                    not covered by the FTCA.                                  (d) Settlement by insurer or joint
                                                      (c) See subpart E for other claims not                tortfeasor. When settlement is made by                Subpart N—[Redesignated as Subpart
                                                    payable.                                                an insurer or joint tortfeasor and an                 L]
                                                    *     *     *      *     *                              additional award is warranted, an award
                                                                                                                                                                  ■ 87. Redesignate subpart N, consisting
                                                    ■ 83. Revise newly redesignated                         may be made if both of the following are
                                                                                                                                                                  of §§ 842.115 through §§ 842.125 as
                                                    § 842.99 to read as follows:                            present:
                                                                                                                                                                  subpart L, consisting of §§ 842.103
                                                                                                              (1) The United States is not protected
                                                    § 842.99   Applicable law.                                                                                    through §§ 842.113, respectively.
                                                                                                            by the release executed by the claimant.
                                                       (a) Many of the exclusions in this                                                                         ■ 88. Revise newly redesignated
                                                                                                              (2) The total amount received from
                                                    subpart are based upon the wording of                                                                         § 842.103 to read as follows:
                                                                                                            such source is first deducted.
                                                    28 U.S.C. 2680 or other federal statutes                ■ 84. In newly redesignated § 842.100,                § 842.103   Scope of this subpart.
                                                    or court decisions interpreting the                     revise paragraphs (a), (b), (c), and (d) to
                                                    Federal Tort Claims Act. Federal case                                                                           This subpart explains how the United
                                                                                                            read as follows:                                      States asserts and settles claims for costs
                                                    law interpreting the same exclusions
                                                    under the Federal Tort Claims Act is                    § 842.100    Appeal of final denials.                 of medical care, against third parties
                                                    applied to the National Guard Claims                    *      *     *    *     *                             under the Federal Medical Care
                                                    Act. Where state law differs with federal                  (a) A claimant may appeal the final                Recovery Act (FMCRA) (10 U.S.C. 1095)
                                                    law, federal law prevails.                              denial of the claim. The claimant sends               and various other laws.
                                                       (b) Extent of liability. Where the claim                                                                   ■ 89. Amend newly redesignated
                                                                                                            the request, in writing, to the settlement
                                                    arises is important in determining the                  authority that issued the denial letter               § 842.104 by revising paragraph (a) and
                                                    extent of liability.                                    within 60 days of the date the denial                 adding paragraphs (h) and (i) to read as
                                                       (1) When a claim arises in the United                letter was mailed. The settlement                     follows:
                                                    States, its territories or possessions, the             authority may waive the 60 day time                   § 842.104   Definitions.
                                                    same law as if the claim was cognizable                 limit for good cause.
                                                    under the FTCA will be applied.                                                                               *      *     *     *    *
                                                                                                               (b) Upon receipt of the appeal, the                   (a) Medical Cost Reimbursement
                                                       (2) Claims in foreign countries. In                  original settlement authority reviews the
                                                    claims arising in a foreign country,                                                                          Program Regional Field Offices. The
                                                                                                            appeal.                                               Chief of the Medical Cost
                                                    where the claim is for personal injury,                    (c) Where the settlement authority
                                                    death, or damage to or loss of real or                                                                        Reimbursement Program (MCRP)
                                                                                                            does not reach a final agreement on an                Branch determines and assigns
                                                    personal property caused by an act or                   appealed claim, he or she sends the
                                                    omission alleged to be negligent,                                                                             geographic responsibility for all regional
                                                                                                            entire claim file to the next higher                  field offices. Each field office is
                                                    wrongful, or otherwise involving fault of               settlement authority, who is the
                                                    military personnel or civilian officers or                                                                    responsible for investigating all
                                                                                                            appellate authority for that claim. Any               potential claims and asserting claims
                                                    employees of the United States acting                   higher settlement authority may act
                                                    within the scope of their employment,                                                                         within their jurisdiction for the cost of
                                                                                                            upon an appeal.                                       medical care provided by either a
                                                    liability or the United States is                          (d) The decision of the appellate
                                                    determined according federal case law                                                                         Medical Treatment Facility or at a
                                                                                                            authority is the final administrative                 civilian facility through Tricare.
                                                    interpreting the FTCA. Where the FTCA                   action on the claim.
                                                    requires application of the law of the                                                                        *      *     *     *    *
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                                                                                                            ■ 85. Revise newly redesignated
                                                    place where the act or omission                         § 842.101 to read as follows:                            (h) Accrued pay. The total of all pay
                                                    occurred, settlement authorities will use                                                                     accrued to the account of an active duty
                                                    the rules set forth in the currently                    § 842.101 Government’s right of                       member during a period when the
                                                    adopted edition of the Restatement of                   subrogation, indemnity, and contribution.             member is unable to perform military
                                                    the Law, published by the American                        The Air Force becomes subrogated to                 duties. It does not include allowances.
                                                    Law Institute, to evaluate the liability of             the rights of the claimant upon settling                 (i) Future care. Medical care
                                                    the Air Force, subject to the following                 a claim. The Air Force has the rights of              reasonably expected to be provided or
                                                    rules:                                                  contribution and indemnity permitted                  paid for in the future treatment of an


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                                                                          Federal Register / Vol. 81, No. 61 / Wednesday, March 30, 2016 / Proposed Rules                                              17633

                                                    injured party as determined during the                     (2) Settlement previously referred to                 (a) MCR personnel assert a claim
                                                    investigative process.                                  DOJ.                                                  against a tortfeasor or other third party
                                                    ■ 90. Revise newly redesignated                            (3) Settlement where a third party                 using a formal letter on Air Force
                                                    § 842.105 to read as follows:                           files suit against the U.S. or the injured            stationery. The assertion is made against
                                                                                                            party arising out of the same incident.               all potential payers, including insurers.
                                                    § 842.105   Delegations of authority.                   ■ 91. Revise newly redesignated                       The demand letter should state the legal
                                                       (a) Settlement authority. The                        § 842.107 to read as follows:                         basis for recovery and sufficiently
                                                    following individuals have delegated                                                                          describe the facts and circumstances
                                                    authority to settle, compromise, or                     § 842.107    Nonassertable claims.
                                                                                                                                                                  surrounding the incident giving rise to
                                                    waive MCRP claims for $300,000 or less                     The following are considered
                                                                                                                                                                  medical care. Applicable bases of
                                                    and to accept full payment on any                       nonassertable claims and should not be
                                                                                                                                                                  recovery include U.S. status as a third-
                                                    claim:                                                  asserted:
                                                                                                               (a) Claims against any department,                 party beneficiary under various types of
                                                       (1) The Judge Advocate General.
                                                       (2) The Deputy Judge Advocate                        agency, or instrumentality of the United              insurance policies, workers’
                                                    General.                                                States. ‘‘Agency or instrumentality’’                 compensation laws, no-fault laws, or
                                                       (3) The Director of Civil Law.                       includes any self-insured                             other Federal statutes, including COB or
                                                       (4) Chief, Claims and Tort Litigation                nonappropriated fund activity whether                 FMCRA.
                                                    Staff and the Chief, MCRP.                              revenue producing, welfare, or sundry.                   (b) The MCR authority must promptly
                                                       (b) Redelegation of authority. The                   The term does not include private                     notify the injured parties or their legal
                                                    individuals described in paragraph (a)                  associations.                                         representatives, in writing, that the
                                                    of this section may re-delegate a portion                  (b) Claims for care furnished a veteran            United States will attempt to recover
                                                    or all of their authority to subordinates,              by the Department of Veterans Affairs                 from the third parties the reasonable
                                                    subject to the following limitations:                   (VA) for service connected disability.                value of medical care furnished or to be
                                                       (1) SJAs, when given Medical Cost                    However, claims may be asserted for the               furnished and that they:
                                                    Reimbursement (MCR) claims                              reasonable value of medical care an Air                  (1) Should seek advice from a legal
                                                    jurisdiction, are granted authority to                  Force member receives prior to his or                 assistance officer or civilian counsel.
                                                    waive, compromise, or settle claims in                  her discharge and transfer to the VA                     (2) Must cooperate in the prosecution
                                                    amounts of $25,000 or less. This                        facility or when the Air Force has                    of all actions of the United States
                                                    authority may be re-delegated in writing                reimbursed the VA facility for the care.              against third parties.
                                                    with authority to re-delegate to                           (c) Claims for care furnished a                       (3) Must furnish a complete statement
                                                    subordinates.                                           merchant seaman under 42 U.S.C. 249.                  regarding the facts and circumstances
                                                       (2) SJAs of numbered Air Forces,                     A claim against the seaman’s employer                 surrounding the incident which caused
                                                    when given MCR claims jurisdiction,                     should not be filed.                                  the injury.
                                                    are granted authority to waive,                            (d) Government contractors. In claims                 (4) Must not execute a release or settle
                                                    compromise, or settle claims in amounts                 in which the United States must                       any claim which exists as a result of the
                                                    of $40,000 or less. This authority may be               reimburse the contractor for a claim                  injury without prior notice to the MCR
                                                    re-delegated in writing with authority to               according to the terms of the contract,               authority.
                                                    re-delegate to subordinates.                            settlement authorities investigate the                *      *    *      *    *
                                                       (3) SJAs of single base GCMs, the SJAs               circumstances surrounding the incident                ■ 93. Revise newly redesignated
                                                    of GMCs in PACAF and USAFE, and the                     to determine if assertion is appropriate.             § 842.109 to read as follows:
                                                    SJAs of each Air Force base, station, or                If the U.S. is not required to reimburse
                                                    fixed installation have delegated                       the contractor, the MCR authority may                 § 842.109 Referring a claim to the US
                                                    authority to compromise or waive                                                                              Attorney.
                                                                                                            assert a claim against the contractor.
                                                    claims for $15,000 or less and to accept                   (e) Foreign governments. Settlement                   (a) All cases that require forwarding to
                                                    full payment on any claim                               authorities investigate any claims that               the DoJ must be routed through the
                                                       (c) Authority to assert a claim. Each                might be made against foreign                         Chief, MCRP. The MCR authority
                                                    settlement authority has authority to                   governments, their political                          ensures that personnel review all claims
                                                    assert a claim in any amount for the                    subdivisions, armed forces members or                 for possible referral not later than two
                                                    reasonable value of medical care.                       civilian employees.                                   years after the date of the incident for
                                                       (d) Authority to reduce, withdraw,                      (f) U.S. personnel. Claims are not                 tort based cases.
                                                    and restore settlement authority. Any                   asserted against members of the                          (b) The United States or the injured
                                                    superior settlement authority may                       uniformed services; employees of the                  party on behalf of the United States
                                                    reduce, withdraw, or restore delegated                  U.S., its agencies or instrumentalities; or           must file suit within 3 years after an
                                                    authority.                                              an individual who is a dependent of a                 action accrues. This is usually 3 years
                                                       (e) Settlement negotiations. A                       service member or employee at the time                after the initial treatment is provided in
                                                    settlement authority may settle a claim                 of assertion unless they have insurance               a federal medical facility or after the
                                                    filed for an amount within the delegated                to pay the claim, they were required by               initial payment is made by Tricare,
                                                    settlement authority. Claims in excess of               law or regulation to have insurance                   whichever is first.
                                                    the delegated authority must be                         which would have covered the Air                      ■ 94. Revise newly redesignated
                                                    approved by the next higher settlement                  Force, or their actions, which                        § 842.111 to read as follows:
                                                    authority. Unsuccessful negotiations at                 necessitated the medical treatment
                                                                                                                                                                  § 842.111     Recovery rates in government
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                                                    one level do not bind higher authority.                 provided at government expense,
                                                       Note: Telephonic approvals, in the                                                                         facilities.
                                                                                                            constituted willful misconduct or gross
                                                    discretion of the higher settlement                     negligence.                                              The Federal Register contains the
                                                    authority, are authorized.                              ■ 92. Amend newly redesignated                        rates set by the Office of Management
                                                       (f) Special exceptions. Only the                     § 842.108 by revising paragraphs (a) and              and Budget, of which judges take
                                                    Department of Justice (DOJ) may                         (b) to read as follows:                               judicial notice. Apply the rates in effect
                                                    approve claims involving:                                                                                     at the time of care to claims.
                                                       (1) Compromise or waiver of a claim                  § 842.108    Asserting the claim.                     ■ 95. Revise newly redesignated
                                                    for more than $300,000.                                 *      *      *      *       *                        § 842.112 to read as follows:


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                                                    17634                 Federal Register / Vol. 81, No. 61 / Wednesday, March 30, 2016 / Proposed Rules

                                                    § 842.112 Waiver and compromise of                      § 842.113 Reconsideration of a waiver for               (d) Nonappropriated funds
                                                    United States interest.                                 undue hardship.                                       instrumentality. A nonappropriated
                                                      Waivers and compromises of                               A settlement authority may reconsider              fund instrumentality is a Federal
                                                    government claims can be made. This                     its previous action on a request for                  government instrumentality established
                                                    paragraph lists the basic guidance for                  waiver or compromise whether                          to generate and administer
                                                    each action. (See this subpart for claims               requested or not. Reconsideration is                  nonappropriated funds for programs
                                                    involving waiver and compromise of                      normally on the basis of new evidence                 and services contributing to the mental
                                                    amounts in excess of settlement                         or discovery of errors in the waiver                  and physical well-being of personnel.
                                                    authorities’ delegated amounts.)                        submission or settlement, but can be
                                                      (a) Convenience of the Government.                    based upon a re-evaluation of the claim               § 842.116   Payment of claims against
                                                    When compromising or waiving a claim                                                                          NAFIs.
                                                                                                            by the settlement authority.
                                                    for convenience of the Government,                                                                               Substantiated claims against NAFIs
                                                    settlement authorities should consider                  Subpart O—[Removed]                                   must not be paid solely from
                                                    the following factors:                                                                                        appropriated funds. Claims are sent for
                                                                                                            ■ 97. Remove subpart O, consisting of                 payment as set out in this subpart. Do
                                                      (1) Risks of litigation.
                                                      (2) Questionable liability of the third               §§ 842.126 through 842.136.                           not delay paying a claimant because
                                                                                                            ■ 98. Add new subpart M, consisting of
                                                    party.                                                                                                        doubt exists whether to use
                                                      (3) Costs of litigation.                              §§ 842.114 through 842.117.
                                                                                                                                                                  appropriated funds or NAFs. Pay the
                                                      (4) Insurance (Uninsured or                           Subpart M—Nonappropriated Fund                        claim initially from appropriated funds
                                                    Underinsured Motorist and Medical                       Claims                                                and decide the correct funding source
                                                    Payment Coverage) or other assets of the                                                                      later.
                                                    tortfeasor available to satisfy a judgment              § 842.114    Scope of this subpart.
                                                    for the entire claim.                                     This subpart describes how to settle                § 842.117 Claims by customers, members,
                                                      (5) Potential counterclaim against the                                                                      participants, or authorized users.
                                                                                                            claims for and against the United States
                                                    U.S.                                                    for property damage, personal injury, or                (a) Customer complaints. Do not
                                                      (6) Jury verdict expectancy amount.                   death arising out of the operation of                 adjudicate claims complaints or claims
                                                      (7) Amount of settlement with                         Nonappropriated Fund                                  for property loss or damage under this
                                                    proposed distribution.                                  Instrumentalities (NAFIs). Unless stated              subpart that the local NAFI activity can
                                                      (8) Cost of any future care.                          below, such claims will follow                        satisfactorily resolve.
                                                      (9) Tortfeasor cannot be located.                                                                             (b) Claims generated by
                                                                                                            procedures outlined in other subparts of
                                                      (10) Tortfeasor is judgment proof.                                                                          concessionaires. Most concessionaires
                                                      (11) Tortfeasor has refused to pay and                this part for the substantive law
                                                                                                            applicable to the particular claim. For               must have commercial insurance. Any
                                                    the case is too weak for litigation.                                                                          unresolved claims or complaints against
                                                      (b) Hardship on the injured party.                    example, a NAFI claim adjudicated
                                                                                                            under the Federal Tort Claims Act will                concessionaires or their insurers are
                                                    When compromising or waiving a claim                                                                          sent to the appropriate contracting
                                                    to avoid undue hardship on the injured                  follow procedures in this subpart as
                                                                                                            well as subpart K.                                    officers.
                                                    party, settlement authorities should
                                                    consider the following factors:                         § 842.115    Definitions.                             Subpart P—[Redesignated as Subpart
                                                      (1) Permanent disability or                                                                                 N]
                                                                                                              (a) Army and Air Force Exchange
                                                    disfigurement of the injured party.
                                                                                                            Service (AAFES). The Army and Air                     ■ 99. Redesignate subpart P, consisting
                                                      (2) Decreased earning power of the
                                                                                                            Force Exchange Service is a joint                     of §§ 842.137 through 842.143, as
                                                    injured party.
                                                      (3) Out of pocket losses to the injured               command of the Army and Air Force,                    subpart N, consisting of §§ 842.118
                                                    party.                                                  under the jurisdiction of the Chiefs of               through 842.124.
                                                      (4) Financial status of the injured                   Staff of the Army and Air Force, which                ■ 100. Revise newly redesignated
                                                    party.                                                  provides exchange and motion picture                  § 842.118 to read as follows:
                                                      (5) Pension rights of the injured party.              services to authorized patrons.
                                                      (6) Other government benefits                           (b) Morale, welfare, and recreation                 § 842.118   Scope of this subpart.
                                                    available to the injured party.                         (MWR) activities. Air Force MWR                         (a) This subpart explains how to
                                                      (7) An offer of settlement from a third               activities are activities operated directly           process certain administrative claims:
                                                    party which includes virtually all of the               or by contract which provide programs                   (1) Against the United States for
                                                    thirty party’s assets, although the                     to promote morale and well-being of the               property damage, personal injury, or
                                                    amount is considerably less than the                    Air Force’s military and civilian                     death, arising out of Air Force assigned
                                                    calculation of the injured party’s                      personnel and their dependents. They                  noncombat missions performed by the
                                                    damages.                                                may be funded wholly with                             Civil Air Patrol (CAP), as well as certain
                                                      (8) Whether the injured party received                appropriated funds, primarily with                    other Air Force authorized missions
                                                    excessive treatment.                                    nonappropriated funds (NAF), or with a                performed by the CAP in support of the
                                                      (9) Amount of settlement with                         combination of appropriated funds and                 Federal government.
                                                    proposed distribution, including                        NAFs.                                                   (2) In favor of the United States for
                                                    reductions in fees or damages by other                    (c) Nonappropriated funds.                          damage to US Government property
                                                    parties, medical providers, or attorneys                Nonappropriated funds are funds                       caused by CAP members or third
                                                                                                            generated by Department of Defense                    parties.
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                                                    in order to reduce the hardship on the
                                                    injured party.                                          military and civilian personnel and                     (b) Unless stated below, such claims
                                                      (c) Compromise or waiver. A                           their dependents and used to augment                  will follow procedures outlined in other
                                                    compromise or waiver can be made                        funds appropriated by the Congress to                 subparts of this part for the substantive
                                                    upon written request from the injured                   provide a comprehensive morale-                       law applicable to the particular claim.
                                                    party or the injured party’s legal                      building, welfare, religious, educational,            For example, a CAP claim adjudicated
                                                    representative.                                         and recreational program, designed to                 under the Military Claims Act will
                                                    ■ 96. Revise newly redesignated                         improve the well-being of military and                follow procedures in this subpart as
                                                    § 842.113 to read as follows:                           civilian personnel and their dependents.              well as subpart E.


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                                                                          Federal Register / Vol. 81, No. 61 / Wednesday, March 30, 2016 / Proposed Rules                                           17635

                                                    §§ 842.120 and 842.121       [Removed]                  DEPARTMENT OF HOMELAND                                on the Red River during the first few
                                                    ■ 101. Remove newly-redesignated                        SECURITY                                              weeks in May. We have established a
                                                                                                                                                                  safety zone for the race event in past
                                                    §§ 842.120 and 842.121.                                 Coast Guard                                           years through a temporary final
                                                    §§ 842.122 through 842.124 [Redesignated                                                                      rulemaking each year. For this year and
                                                    as §§ 842.120 through 842.122]                          33 CFR Part 165                                       subsequent years, we propose to
                                                                                                            [Docket Number USCG–2016–0171]                        establish the safety zone as a permanent
                                                    ■ 102. Newly redesignated §§ 842.122                                                                          annually recurring regulation to
                                                    through 842.124 are further                             RIN 1625–AA00                                         safeguard against the hazards associated
                                                    redesignated as §§ 842.120 through                                                                            with a race event on the Red River, near
                                                    842.122, respectively.                                  Safety Zone; Louisiana Dragon Boat                    Alexandria, Louisiana.
                                                                                                            Race, Red River Mile Marker, (MM) 88.0                  The legal basis and authorities for this
                                                    Subpart Q—[Redesignated as Subpart                      to (MM) 88.5                                          rule are found in 33 U.S.C. 1231. The
                                                    O]                                                      AGENCY:   Coast Guard, DHS.                           purpose of this proposed safety zone is
                                                                                                            ACTION:   Notice of Proposed Rulemaking.              to protect both spectators and
                                                    ■ 103. Redesignate subpart Q, consisting                                                                      participants from the hazards associated
                                                    of §§ 842.144 through 842.150, as                       SUMMARY:   The Coast Guard proposes to                with the race event.
                                                    subpart O, consisting of §§ 842.123                     establish a permanent safety zone for an
                                                    through 842.129.                                        annually recurring marine event in the                III. Discussion of Proposed Rule
                                                    ■ 104. Revise newly redesignated                        Red River, from MM 88.0 to MM 88.5.                      The COTP Lower Mississippi River
                                                    § 842.123 to read as follows:                           This action is necessary to protect                   proposes to establish a safety zone
                                                                                                            persons and vessels from the potential                approximately 7:00 a.m. to 5:00 p.m. for
                                                    § 842.123   Scope of this subpart.                      safety hazards associated with a dragon               approximately 10 hours on the first or
                                                                                                            boat race taking place in early May,                  second Saturday in May, recurring
                                                      This subpart tells how to make an                     2016 and recurring annually thereafter.               annually. The proposed safety zone
                                                    advance payment before a claim is filed                 This proposed rulemaking would                        would encompass all waters of the Red
                                                    or finalized under the Military Claims,                 prohibit persons and vessels from being               River from Mile Marker (MM) 88.0 to
                                                    Foreign Claims and National Guard                       in the safety zone unless specifically                (MM) 88.5. All persons and vessels,
                                                    Claims Acts.                                            authorized by the Captain of the Port                 except those persons and vessels
                                                    ■ 105. In newly redesignated § 842.124,                 (COTP), Lower Mississippi River or a                  participating in the dragon boat race and
                                                    revise paragraph (c)(4) to read as                      designated representative. We invite                  those vessels enforcing the areas, would
                                                    follows:                                                your comments on this proposed                        be prohibited from entering, transiting
                                                                                                            rulemaking.                                           through, anchoring in, or remaining
                                                    § 842.124   Delegation of authority.                                                                          within the safety zone. No vessel or
                                                                                                            DATES: Comments and related material
                                                    *     *    *     *     *                                must be received by the Coast Guard on                person would be permitted to enter the
                                                      (c) * * *                                             or before April 14, 2016.                             safety zone without obtaining
                                                                                                            ADDRESSES: You may submit comments                    permission from the COTP or a
                                                    *     *    *     *     *                                                                                      designated representative. The
                                                                                                            identified by docket number USCG–
                                                      (4) SJAs of the Air Force component                   2016–0171 using the Federal                           regulatory text we are proposing appears
                                                    commander of the US Geographic                          eRulemaking Portal at http://                         at the end of this document.
                                                    combatant commands for claims arising                   www.regulations.gov. See the ‘‘Public                 IV. Regulatory Analyses
                                                    within their respective combatant                       Participation and Request for
                                                    command areas of responsibility.                                                                                We developed this proposed rule after
                                                                                                            Comments’’ portion of the
                                                                                                                                                                  considering numerous statutes and
                                                    *     *    *     *     *                                SUPPLEMENTARY INFORMATION section for
                                                                                                                                                                  executive orders (E.O.s) related to
                                                                                                            further instructions on submitting
                                                    ■ 106. In newly redesignated § 842.126,                                                                       rulemaking. Below we summarize our
                                                                                                            comments.
                                                    revise paragraph (b) to read as follows:                                                                      analyses based on a number of these
                                                                                                            FOR FURTHER INFORMATION CONTACT: If                   statutes and E.O.s, and we discuss First
                                                    § 842.126   When authorized.                            you have questions about this proposed                Amendment rights of protestors.
                                                    *     *      *    *     *                               rulemaking, call or email LT Tyrone
                                                                                                            Conner, Sector Lower Mississippi River                A. Regulatory Planning and Review
                                                      (b) The potential claimant has an
                                                                                                            Waterways Management Division, U.S.                      E.O.s 12866 and 13563 direct agencies
                                                    immediate need amounting to a
                                                                                                            Coast Guard; telephone (901)521–4725,                 to assess the costs and benefits of
                                                    hardship for food, shelter, medical or                  email Tyrone.L.Conner@uscg.mil.                       available regulatory alternatives and, if
                                                    burial expenses, or other necessities. In                                                                     regulation is necessary, to select
                                                                                                            SUPPLEMENTARY INFORMATION:
                                                    the case of a commercial enterprise,                                                                          regulatory approaches that maximize
                                                    severe financial loss or bankruptcy will                I. Table of Abbreviations                             net benefits. E.O. 13563 emphasizes the
                                                    result if the Air Force does not make an                CFR Code of Federal Regulations                       importance of quantifying both costs
                                                    advance payment.                                        DHS Department of Homeland Security                   and benefits, of reducing costs, of
                                                    *     *      *    *     *                               E.O. Executive order                                  harmonizing rules, and of promoting
                                                                                                            FR Federal Register                                   flexibility. This NPRM has not been
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                                                    Henry Williams,                                         NPRM Notice of proposed rulemaking
                                                                                                            Pub. L. Public Law                                    designated a ‘‘significant regulatory
                                                    Acting Air Force Federal Liaison Officer.                                                                     action,’’ under E.O. 12866. Accordingly,
                                                                                                            § Section
                                                    [FR Doc. 2016–06896 Filed 3–29–16; 8:45 am]             U.S.C. United States Code                             the NPRM has not been reviewed by the
                                                    BILLING CODE 5001–10–P                                                                                        Office of Management and Budget.
                                                                                                            II. Background, Purpose, and Legal                       This regulatory action determination
                                                                                                            Basis                                                 is based on the time, location and
                                                                                                               This is the sixth annual Louisiana                 duration of the safety zone. Vessel
                                                                                                            Dragon Boat Race, occurring each year                 traffic would be restricted from entering,


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Document Created: 2016-03-30 09:28:41
Document Modified: 2016-03-30 09:28:41
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesComments must be received by May 31, 2016.
ContactMr. Daniel Lemieux (AFLOA/JACC), 1500 West Perimeter Rd, Ste 1700, Joint Base Andrews, MD 20762, (240) 612- 4646, [email protected]
FR Citation81 FR 17621 
RIN Number0701-AA79

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