[Federal Register: September 15, 2004 (Volume 69, Number 178)]
[Rules and Regulations]
[Page 55512-55515]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se04-9]
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CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD
40 CFR Part 1620
Administrative Claims Arising Under the Federal Tort Claims Act
AGENCY: Chemical Safety and Hazard Investigation Board.
ACTION: Final rule.
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SUMMARY: The Chemical Safety and Hazard Investigation Board (CSB)
adopts the following rule to aid the processing of administrative
claims for monetary damages filed under the Federal Tort Claims Act
(FTCA). This rule provides information to members of the public who
suffer loss or damage of property, personal injury, death, or other
damages allegedly caused by the negligence or other wrongful act or
omission of CSB officers or employees while acting in the scope of
their office or employment. The rule also governs the procedures by
which such claims are administratively processed.
DATES: This rule is effective November 15, 2004.
FOR FURTHER INFORMATION CONTACT: Christopher M. Lyon, CSB Office of
General Counsel, (202) 261-7600.
SUPPLEMENTARY INFORMATION: The Federal Tort Claims Act (FTCA), 28
U.S.C. 1346(b), 2401(b), 2671-2680, waives the federal government's
sovereign immunity to civil suits for damages in certain instances
arising out of the negligent or otherwise wrongful acts or omissions
committed by federal employees while acting within the scope of their
employment. General regulations issued by the U.S. Department of
Justice for processing FTCA claims, found at 28 CFR 14.11, authorize
federal agencies to issue supplementing regulations. Accordingly, the
CSB is adopting this rule to inform the public about the CSB's method
of accepting and processing claims arising under the FTCA filed against
the agency. This rule provides the public with guidance in presenting a
tort claim against the CSB, while also ensuring that the agency has
established procedures to receive, investigate and adjudicate such
claims. The CSB published a proposed rule on administrative claims
arising under the FTCA, and invited public comments on the rule, in the
Federal Register of June 17, 2004 (69 FR 33879). No comments were
received. This final rule is being published unchanged from the
proposed version.
Regulatory Impact
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that
a rule that has a significant economic impact on a substantial number
of small entities, small businesses, or small organizations must
include an initial regulatory flexibility analysis describing the
regulation's impact on such small entities. This analysis need not be
undertaken if the agency has certified that the regulation will not
have a significant economic impact on a substantial number of small
entities. 5 U.S.C. 605(b). The CSB has considered the impact of this
rule under the Regulatory Flexibility Act. The CSB's General Counsel
hereby certifies that this rule will not have a significant economic
impact on a substantial number of small business entities.
Paperwork Reduction Act
This rule does not contain any information collection requirements
that
[[Page 55513]]
require the approval of the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Unfunded Mandates Reform Act of 1995
This rule does not require the preparation of an assessment
statement in accordance with the Unfunded Mandates Reform Act of 1995,
2 U.S.C. 1531. This rule does not include a Federal mandate that may
result in the expenditure by State, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million or more
(adjusted annually for inflation) in any one year.
List of Subjects in 40 CFR Part 1620
Claims, Administrative practice and procedure.
Dated: September 9, 2004.
Christopher W. Warner,
General Counsel.
0
Accordingly, for the reasons set forth in the preamble, the Chemical
Safety and Hazard Investigation Board adds a new 40 CFR Part 1620 to
read as follows:
PART 1620--ADMINISTRATIVE CLAIMS ARISING UNDER THE FEDERAL TORT
CLAIMS ACT
Sec.
1620.1 Purpose and scope of regulations.
1620.2 Administrative claim; when presented.
1620.3 Administrative claim; who may file.
1620.4 Investigations.
1620.5 Administrative claim; evidence and information to be
submitted.
1620.6 Authority to adjust, determine, compromise, and settle.
1620.7 Limitations on authority.
1620.8 Referral to Department of Justice.
1620.9 Final denial of claim.
1620.10 Action on approved claim.
Authority: 28 U.S.C. 2672; 42 U.S.C. 7412(r)(6)(N); 28 CFR
14.11.
Sec. 1620.1 Purpose and scope of regulations.
The regulations in this part apply only to administrative claims
presented or filed with the Chemical Safety and Hazard Investigation
Board (CSB), under the Federal Tort Claims Act (FTCA), 28 U.S.C.
1346(b), 2401(b), 2671-2680, as amended, for money damages against the
United States for damage to or loss of property, personal injury,
death, or other damages caused by the negligent or wrongful act or
omission of an officer or employee of CSB while acting within the scope
of his or her office or employment, but only under circumstances where
the United States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or omission
occurred.
Sec. 1620.2 Administrative claim; when presented.
(a) For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and
2675, a claim is deemed to have been presented when the CSB receives
from a claimant, and/or his or her authorized agent, attorney, or other
legal representative, an executed Standard Form 95 (Claim for Damage,
Injury or Death), or other written notification of an incident,
accompanied by a claim for money damages stating a sum certain (a
specific dollar amount) for specified damage to or loss of property,
personal injury, death, or other compensable damages alleged to have
occurred as a result of the incident. A claimant must present a claim
within 2 years of the date of accrual of the claim. The date of accrual
generally is determined to be the time of death, injury, or other
alleged damages, or if the alleged damages are not immediately
apparent, when the claimant discovered (or reasonably should have
discovered) the alleged damages and its cause, though the actual date
of accrual will always depend on the facts of each case. Claimants
should be advised that mailing a claim by the 2-year time limit is not
sufficient if the CSB does not receive the claim through the mail by
that date. Additionally, claimants should be advised that a claim is
not considered presented by the CSB until the CSB receives all
information requested in this paragraph. Incomplete claims will be
returned to the claimant.
(b) All claims filed under the FTCA as a result of the alleged
negligence or wrongful act or omission of the CSB or its employees must
be mailed or delivered to the Office of the General Counsel, 2175 K
Street NW., Suite 650, Washington, DC 20037.
(c) The FTCA requires that a claim must be presented to the Federal
agency whose activities gave rise to the claim. A claim that should
have been presented to CSB, but was mistakenly addressed to or filed
with another Federal agency, is presented to the CSB, as required by 28
U.S.C. 2401(b), as of the date the claim is received by the CSB. When a
claim is mistakenly presented to the CSB, the CSB will transfer the
claim to the appropriate Federal agency, if ascertainable, and advise
the claimant of the transfer, or return the claim to the claimant if
the appropriate Federal agency cannot be determined.
(d) A claimant whose claim arises from an incident involving the
CSB and one or more other Federal agencies will identify each agency to
which the claim has been submitted at the time the claim is presented
to the CSB. The CSB will contact all other affected Federal agencies in
order to designate a single agency that will investigate and decide the
merits of the claim. In the event a designation cannot be agreed upon
by the affected agencies, the Department of Justice will be consulted
and that agency will designate a specific agency to investigate and
determine the merits of the claim. The designated agency will then
notify the claimant that all future correspondence concerning the claim
must be directed to the designated Federal agency. All involved Federal
agencies may agree to conduct their own administrative reviews and to
coordinate the results, or to have the investigation conducted solely
by the designated Federal agency. However, in any event, the designated
agency will be responsible for the final determination of the claim.
(e) A claim presented in compliance with paragraph (a) of this
section may be amended by the claimant at any time prior to final
agency action or prior to the exercise of the claimant's option under
28 U.S.C. 2675(a). Amendments must be in writing and signed by the
claimant or his or her authorized agent, attorney, or other legal
representative. Upon the timely filing of an amendment to a pending
claim, the CSB will have an additional 6 months in which to investigate
the claim and to make a final disposition of the claim as amended. A
claimant's option under 28 U.S.C. 2675(a) will not accrue until 6
months after the filing of an amendment.
Sec. 1620.3 Administrative claim; who may file.
(a) A claim for damage to or loss of property may be presented by
the owner of the property, or his or her authorized agent, attorney, or
other legal representative.
(b) A claim for personal injury may be presented by the injured
person, or his or her authorized agent, attorney or other legal
representative.
(c) A claim based on death may be presented by the executor or
administrator of the decedent's estate, or by any other person legally
entitled to assert a claim under the applicable State law, provided
that the basis for the representation is documented in writing.
(d) A claim for loss totally compensated by an insurer with the
rights to subrogate may be presented by the insurer. A claim for loss
partially compensated by an insurer with the rights to subrogate may be
presented by the insurer or the insured individually
[[Page 55514]]
as their respective interests appear, or jointly. When an insurer
presents a claim asserting the rights to subrogate the insurer must
present appropriate evidence that it has the rights to subrogate.
(e) A claim presented by an agent or legal representative must be
presented in the name of the claimant, be signed by the agent,
attorney, or other legal representative, show the title or legal
capacity of the person signing, and be accompanied by evidence of his
or her authority to present a claim on behalf of the claimant as agent,
attorney, executor, administrator, parent, guardian, conservator, or
other legal representative.
Sec. 1620.4 Investigations.
CSB may investigate, or may request any other Federal agency to
investigate, a claim filed under this part.
Sec. 1620.5 Administrative claim; evidence and information to be
submitted.
(a) Death. In support of a claim based on death, the claimant may
be required to submit the following evidence or information:
(1) An authenticated death certificate or other competent evidence
showing cause of death, date of death, and age of the decedent.
(2) Decedent's employment or occupation at time of death, including
his or her monthly or yearly salary or earnings (if any), and the
duration of his or her last employment or occupation.
(3) Full names, addresses, birth date, kinship and marital status
of the decedent's survivors, including identification of those
survivors who were dependent on support provided by the decedent at the
time of death.
(4) Degree of support afforded by the decedent to each survivor
dependent on him or her for support at the time of death.
(5) Decedent's general physical and mental condition before death.
(6) Itemized bills for medical and burial expenses incurred by
reason of the incident causing death, or itemized receipts of payment
for such expenses.
(7) If damages for pain and suffering before death are claimed, a
physician's detailed statement specifying the injuries suffered,
duration of pain and suffering, any drugs administered for pain, and
the decedent's physical condition in the interval between injuries and
death.
(8) True and correct copies of relevant medical treatment records,
laboratory and other tests, including X-Rays, MRI, CT scans and other
objective evidence of medical evaluation and diagnosis, treatment of
injury/illness, and prognosis, if any had been made.
(9) Any other evidence or information that may have a bearing on
either the responsibility of the United States for the death or the
amount of damages claimed.
(b) Personal injury. In support of a claim for personal injury,
including pain and suffering, the claimant may be required to submit
the following evidence or information:
(1) A written report by the attending physician or dentist setting
forth the nature and extent of the injury, nature and extent of
treatment, any degree of temporary or permanent disability, the
prognosis, period of hospitalization, and any diminished earning
capacity. If damages for pain and suffering are claimed, a physician's
detailed statement specifying the duration of pain and suffering, a
listing of drugs administered for pain, and the claimant's general
physical condition.
(2) True and correct copies of relevant medical treatment records,
laboratory and other tests including X-Rays, MRI, CT scans and other
objective evidence of medical evaluation and diagnosis, treatment
injury/illness and prognosis.
(3) The claimant may be required to submit to a physical or mental
examination by a physician employed by CSB or another Federal agency.
On written request, CSB will make available to the claimant a copy of
the report of the examining physician employed by the United States,
provided the claimant has furnished CSB with the information noted in
paragraphs (b)(1) and (b)(2) of this section. In addition, the claimant
must have made or agrees to make available to CSB all other physicians'
reports previously or thereafter made of the physical or mental
condition that is subject matter of his or her claim.
(4) Itemized bills for medical, dental, and hospital expenses
incurred, and/or itemized receipts of payment for such expenses.
(5) If the prognosis reveals the necessity for future treatment, a
statement of the expected treatment and the expected expense for such
treatment.
(6) If a claim is made for loss of time from employment, a written
statement from his or her employer showing actual time lost from
employment, whether he or she is a full-time or part-time employee, and
wages or salary actually lost.
(7) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amount of earnings actually
lost.
(8) Any other evidence or information that may have a bearing on
either the responsibility of the United States for the personal injury
or the damages claimed.
(c) Property damage. In support of a claim for damage to or loss of
property, real or personal, the claimant may be required to submit the
following evidence or information:
(1) Proof of ownership of the property.
(2) A detailed statement of the amount claimed with respect to each
item of property.
(3) An itemized receipt of payment for necessary repairs or
itemized written estimates of the cost of such repairs.
(4) A statement listing date of purchase, purchase price, and
salvage value.
(5) Photographs or video footage documenting the damage, including
photographs showing the condition of the property at issue both before
and after the alleged negligence or wrongful act or omission.
(6) Any other evidence or information that may have a bearing on
either the responsibility of the United States for the damage to or
loss of property or the damages claimed.
Sec. 1620.6 Authority to adjust, determine, compromise, and settle.
The General Counsel of CSB, or his or her designee, is delegated
authority to consider, ascertain, adjust, determine, compromise and
settle claims under the provision of 28 U.S.C. 2672, and this part. The
General Counsel, in his or her discretion, has the authority to further
delegate the responsibility for adjudicating, considering, adjusting,
compromising and settling any claim submitted under the provision of 28
U.S.C. 2672, and this part, that is based on the alleged negligence or
wrongful act or omission of a CSB employee acting in the scope of his
or her employment. However, in any case, any offer of compromise or
settlement in excess of $5,000 exercised by the CSB Chairperson or any
other lawful designee can only be made after a legal review is
conducted by an attorney within the CSB Office of General Counsel.
Sec. 1620.7 Limitations on authority.
(a) An award, compromise, or settlement of a claim under 28 U.S.C.
2672, and this part, in excess of $25,000 can be made only with the
prior written approval of the CSB General Counsel and Chairperson,
after consultation and approval by the Department of Justice. For
purposes of this paragraph a principal claim and any derivative or
subrogated claim will be treated as a single claim.
(b) An administrative claim may be adjusted, determined,
compromised or
[[Page 55515]]
settled under this part only after consultation with the Department of
Justice when, in the opinion of the General Counsel of CSB, or his or
her designee:
(1) A new precedent or a new point of law is involved; or
(2) A question of policy is or may be involved; or
(3) The United States is or may be entitled to indemnity or
contribution from a third party and CSB is unable to adjust the third
party claim; or
(4) The compromise of a particular claim, as a practical matter,
will or may control the disposition of a related claim in which the
amount to be paid may exceed $25,000.
(c) An administrative claim may be adjusted, determined,
compromised or settled under 28 U.S.C. 2672 and this part only after
consultation with the Department of Justice when CSB is informed or is
otherwise aware that the United States or an employee, agent or
contractor of the United States is involved in litigation based on a
claim arising out of the same incident or transaction.
Sec. 1620.8 Referral to Department of Justice.
When Department of Justice approval or consultation is required, or
the advice of the Department of Justice is otherwise to be requested,
under this regulation, the written referral or request will be
transmitted to the Department of Justice by the General Counsel of CSB,
or his or her designee.
Sec. 1620.9 Final denial of claim.
Final denial of an administrative claim must be in writing and sent
to the claimant, his or her agent, attorney, or other legal
representative by certified or registered mail. The notification of
final denial may include a statement of the reasons for the denial.
However, it must include a statement that, if the claimant is
dissatisfied with the CSB action, he or she may file suit in an
appropriate United States District Court not later than 6 months after
the date of mailing of the notifications, along with the admonition
that failure to file within this 6 month timeframe could result in the
suit being time-barred by the controlling statute of limitations. In
the event that a claimant does not hear from the CSB after 6 months
have passed from the date that the claim was presented, a claimant
should consider the claim denied and, if desired, should proceed with
filing a civil action in the appropriate U.S. District Court.
Sec. 1620.10 Action on approved claim.
(a) Payment of a claim approved under this part is contingent on
claimant's execution of a Standard Form 95 (Claim for Damage, Injury or
Death); a claims settlement agreement; and a Standard Form 1145
(Voucher for Payment), as well as any other forms as may be required.
When a claimant is represented by an attorney, the Voucher for Payment
will designate both the claimant and his or her attorney as payees, and
the check will be delivered to the attorney, whose address is to appear
on the Voucher for payment.
(b) Acceptance by the claimant, his or her agent, attorney, or
legal representative, of an award, compromise or settlement made under
28 U.S.C. 2672 or 28 U.S.C. 2677 is final and conclusive on the
claimant, his or her agent, attorney, or legal representative, and any
other person on whose behalf or for whose benefit the claim has been
presented, and constitutes a complete release of any and all claims
against the United States and against any employee of the Federal
Government whose act(s) or omission(s) gave rise to the claim, by
reason of the same subject matter. To that end, as noted above, the
claimant, as well as any agent, attorney or other legal representative
that represented the claimant during any phase of the process (if
applicable) must execute a settlement agreement with the CSB prior to
payment of any funds.
[FR Doc. 04-20771 Filed 9-14-04; 8:45 am]
BILLING CODE 6350-01-P