81 FR 17621 - Administrative Claims
DEPARTMENT OF DEFENSE
Department of the Air Force Federal Register Volume 81, Issue 61 (March 30, 2016)
Department of the Air Force
Federal Register Volume 81, Issue 61 (March 30, 2016)
| Page Range | 17621-17635 | |
| FR Document | 2016-06896 |
[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] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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
mstockstill on DSK4VPTVN1PROD with PROPOSALS
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,
VerDate Sep<11>2014 16:36 Mar 29, 2016 Jkt 238001 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 E:\FR\FM\30MRP1.SGM 30MRP1](https://thefederalregister.org/doc/81_FR_17682/page/1.svg)
![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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■ 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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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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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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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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(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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(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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![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
mstockstill on DSK4VPTVN1PROD with PROPOSALS
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
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments must be received by May 31, 2016. | |
| Contact | Mr. Daniel Lemieux (AFLOA/JACC), 1500 West Perimeter Rd, Ste 1700, Joint Base Andrews, MD 20762, (240) 612- 4646, [email protected] | |
| FR Citation | 81 FR 17621 | |
| RIN Number | 0701-AA79 |
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