[Federal Register: December 20, 2002 (Volume 67, Number 245)]
[Proposed Rules]
[Page 77942-77949]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20de02-12]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Part 429
RIN 0960-AF39
Filing Claims Under the Federal Tort Claims Act and the Military
Personnel and Civilian Employees Claims Act
AGENCY: Social Security Administration (SSA).
ACTION: Proposed rules.
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SUMMARY: We propose to establish new regulation that would prescribe
the procedures SSA follows when claims are filed by employees against
SSA for personal property damage or loss incident to their service with
SSA. This new regulation is necessary both to reflect SSA's status as
an independent agency and to comply with the requirement in the
Military Personnel and Civilian Employees Claims Act of 1964 (MPCECA)
that the head of each federal agency prescribe its own regulations for
handling such claims.
We also propose to make several minor clarifications and
corrections to our current procedures and practices on claims against
the Government for damage to or loss of property or personal injury or
death that is caused by the negligent or wrongful act or omission of an
SSA employee. We have also rewritten the current rules on such claims
in plain language.
DATES: To be sure that your comments are considered, we must receive
them no later than February 18, 2003.
ADDRESSES: You may give us your comments by using: Our Internet site
facility (i.e., Social Security Online) at http://www.ssa.gov/regulations
, e-mail to regulations@ssa.gov; telefax to (410) 966-2830;
or by sending a letter to the Commissioner of Social Security, P.O. Box
17703, Baltimore, Maryland 21235-7703. You may also deliver them to the
Office of Process and Innovation Management, Social Security
Administration, 2109 West Low Rise Building, 6401 Security Boulevard,
Baltimore, Maryland 21235-6401, between 8 a.m. and 4:30 p.m. on regular
business days. Comments are posted on our Internet site, or you may
inspect them on regular business days by making arrangements with the
contact person shown in this preamble.
Electronic Version
The electronic file of this document is available on the Internet
at http://www.access.gpo.gov/su_docs/aces/aces140.html. It is also
available on the Internet site for SSA (i.e., ``SSA Online'') at http://www.ssa.gov/regulations
.
FOR FURTHER INFORMATION CONTACT: Jonathan R. Cantor, Attorney-at-Law,
Office of General Law, Office of the General Counsel, Social Security
Administration, Room 617 Altmeyer Building, 6401 Security Boulevard,
Baltimore, Maryland 21235, (410) 965-3166 or TTY (410) 966-5609.
SUPPLEMENTARY INFORMATION:
Employee Claims for Personal Property Damage or Loss
The MPCECA, 31 U.S.C. 3721, establishes the guidelines Federal
agencies must follow when an agency employee files a claim for personal
property damage or loss incurred incident to his or her Federal
service. Under the MPCECA, the head of each Federal agency is required
to promulgate its own regulations setting forth the procedures and
practices the agency will follow in handling such claims (31 U.S.C.
3721(j)). The Social Security Independence and Improvements Act of 1994
(Pub. L. 103-296) established SSA as an independent agency in the
executive branch of the United States Government effective March 31,
1995 and vested general regulatory authority in the Commissioner of
Social Security. In order to comply with the requirement in the MPCECA
that SSA have its own regulations dealing with employee claims, we
propose to establish a new subpart B in part 429 of Title 20 of the
Code of Federal Regulations.
The proposed rules in new subpart B of part 429 are modeled after
those routinely published by other Federal agencies and would contain
the following sections:
[sbull] Section 429.201 would explain that the new subpart applies
to employee claims under the MPCECA, set a $40,000 limit on the amount
of payment for a claim, and define several terms used throughout the
subpart.
[sbull] Section 429.202 would explain the procedures an employee
should follow to file a claim for personal property loss or damage
incident to service.
[sbull] Section 429.203 would explain the circumstances under which
a claim for personal property loss or damage is allowable.
[sbull] Section 429.204 would describe the restrictions that apply
to employee claims for personal property damage or loss.
[sbull] Section 429.205 would contain a list of the types of losses
that are not allowable under subpart B.
[sbull] Section 429.206 would explain the procedures that are
applicable when a claim involves a commercial carrier or an insurer.
[sbull] Section 429.207 would explain how an employee should file a
claim for personal property damage or loss.
[sbull] Section 429.208 would explain how the SSA Claims Officer
determines the amount of an award.
[sbull] Section 429.209 would contain the maximum fee an agent or
attorney may receive for his/her services in connection with an
individual claim under subpart B.
[sbull] Section 429.210 would explain the appeal process for claims
under subpart B.
[sbull] Section 429.211 would contain the penalties for filing
false claims.
Tort Claims
These proposed rules would also modify our existing rules dealing
with the procedures SSA follows when
[[Page 77943]]
claims are asserted under the Federal Tort Claims Act (FTCA), 28 U.S.C.
2672, for money damages against the United States for injury or death
caused by the negligent or wrongful act or omission of any SSA
employee. We propose to revise our regulations on tort claims as
follows:
[sbull] We would revise Sec. 429.101 to reflect the statutory
provision in the FTCA that the FTCA does not apply to those tort claims
identified in 28 U.S.C. 2680. Our current rules do not contain this
statutory limitation.
[sbull] We would revise Sec. 429.103 to correct the mailing
address in this section.
[sbull] We would revise the time limit in Sec. 429.104 for
submitting evidence in a claim for money damages from 3 months to 60
days. Under the FTCA, this time limit is to be determined by the agency
and we believe 60 days constitutes a reasonable limit for submitting
evidence after being asked to do so.
[sbull] We would revise Sec. 429.107 to clarify an ambiguity in
current regulations. If a claim is approved that exceeds $2500, our
rules would be revised to specify that the payment will come from the
Judgment Fund in the Department of the Treasury, rather than from SSA.
This reflects current procedure and the proposed change would only
serve to increase the efficiency of the claims process and to speed
delivery of the payment to the claimant.
[sbull] We propose to revise the penalties for filing false claims
to reflect changes in both the criminal and civil False Claims Act.
We also propose to rewrite the existing regulations on tort claims
to comply with Executive Order 12866, as amended by Executive Order
13258, which requires Federal agencies to write all rules in plain
language. None of these plain language changes are substantive; they
are merely intended to make the existing regulations more readable and
easier to understand.
Clarity of This Proposed Rule
As explained above, Executive Order 12866, as amended by Executive
Order 13258, require each agency to write all rules in plain language.
In addition to your substantive comments on this proposed rule, we
invite your comments on how to make this proposed rule easier to
understand.
For example:
[sbull] Have we organized the material to suit your needs?
[sbull] Are the requirements in the rule clearly stated?
[sbull] Does the rule contain technical language or jargon that is
not clear?
[sbull] Would a different format (grouping and order of sections,
use of headings, paragraphing) make the rule easier to understand?
[sbull] What else could we do to make the rule easier to
understand?
Regulatory Procedures
Executive Order 12866
The Office of Management and Budget (OMB) has reviewed these
proposed rules in accordance with Executive Order 12866, as amended by
Executive Order 13258.
Regulatory Flexibility Act
We certify that the proposed rules, if promulgated, will not have a
significant economic impact on a substantial number of small entities
because it only affects individuals. Therefore, a regulatory
flexibility analysis as provided in the Regulatory Flexibility Act, as
amended, is not required.
Paperwork Reduction Act
These proposed rules contain reporting requirements as shown in the
table below. Where the public reporting burden is accounted for in
Information Collection Requests for the various forms that the public
uses to submit the information to SSA, a 1-hour placeholder burden is
being assigned to the specific reporting requirement(s) contained in
these rules.
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Average Estimated
Annual Frequency burden per annual
Section number number of of response response burden
responses (minutes) hours
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429.102; 429.103............................................ 1 1 1 1
429.104(a).................................................. 30 1 5 2.5
429.104(b).................................................. 25 1 5 2
429.104(c).................................................. 2 1 5 .16
429.106(b).................................................. 10 1 10 1.6
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An Information Collection Request has been submitted to OMB for
clearance. We are soliciting comments on the burden estimate; the need
for the information; its practical utility; ways to enhance its
quality, utility and clarity; and on ways to minimize the burden on
respondents, including the use of automated collection techniques or
other forms of information technology. Comments may be faxed or mailed
to the Social Security Administration at the following address: Social
Security Administration, Attn: SSA Reports Clearance Officer, Rm. 1338
Annex Building, 6401 Security Boulevard, Baltimore, MD 21235-6401. Fax
No. 410-965-6400.
Comments can be received for between 30 and 60 days after
publication of this notice and will be most useful if received by SSA
within 30 days of publication.
(Catalog of Federal Domestic Assistance Program Nos. 96.001 Social
Security-Disability Insurance; 96.002 Social Security-Retirement
Insurance; 96.003 Social Security-Special Benefits for Persons Aged
72 and Over; 96.004 Social Security-Survivors Insurance; 96.005
Special Benefits for Disabled Coal Miners; 96.006, Supplemental
Security Income; 96.007 Social Security-Research and Demonstration)
List of Subjects in 20 CFR Part 429
Administrative practice and procedure, Government employees,
Indemnity payments, Tort claims.
Dated: September 23, 2002.
Jo Anne B. Barnhart,
Commissioner of Social Security.
For the reasons set out in the preamble, we propose to revise part
429 of chapter III of title 20 of the Code of Federal Regulations to
read as follows:
PART 429--ADMINISTRATIVE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT
AND RELATED STATUTES
Subpart A--Claims Against the Government Under the Federal Tort Claims
Act
Sec.
429.101 What is this subpart about?
429.102 How do I file a claim under this subpart?
429.103 Who may file my claim?
429.104 What evidence do I need to submit with my claim?
[[Page 77944]]
429.105 What happens when you receive my claim?
429.106 What happens if my claim is denied?
429.107 If my claim is approved, how do I obtain payment?
429.108 What happens if I accept an award, compromise or settlement
under this subpart?
429.109 Are there any penalties for filing false claims?
429.110 Are there any limitations on SSA's authority under this
subpart?
Subpart B--Claims Under the Military Personnel and Civilian Employees'
Claims Act of 1964
429.201 What is this subpart about?
429.202 How do I file a claim under this subpart?
429.203 When is a claim allowable?
429.204 Are there any restrictions on what is allowable?
429.205 What is not allowable under this subpart?
429.206 What if my claim involves a commercial carrier or an
insurer?
429.207 What are the procedures for filing a claim?
429.208 How do you determine the award? Is the settlement of my
claim final?
429.209 Are there any restrictions on attorney's fees?
429.210 Do I have any appeal rights under this subpart?
429.211 Are there any penalties for filing false claims?
Authority: Sect. 702(a)(5) of the Social Security Act (42 U.S.C.
902(a)(5)); 28 U.S.C. 2672; 28 CFR 14.11; 31 U.S.C. 3721.
Subpart A--Claims Against the Government Under the Federal Tort
Claims Act
Sec. 429.101 What is this subpart about?
This subpart applies only to claims filed under the Federal Tort
Claims Act, as amended, 28 U.S.C. 2671-2680 (FTCA), for money damages
against the United States for damage to or loss of property or personal
injury or death that is caused by the negligent or wrongful act or
omission of an employee of the Social Security Administration (SSA).
The loss, damage, injury or death must be caused by the employee in the
performance of his or her official duties, under circumstances in which
the United States, if a private person, would be liable in accordance
with the law of the place where the act or omission occurred. This
subpart does not apply to any tort claims excluded from the FTCA under
28 U.S.C. 2680.
(b) This subpart is subject to and consistent with the regulations
on administrative claims under the FTCA issued by the Attorney General
at 28 CFR part 14.
Sec. 429.102 How do I file a claim under this subpart?
(a) Filing an initial claim. You must either file your claim on a
properly executed Standard Form 95 or you must submit a written
notification of the incident accompanied by a claim for the money
damages in a sum certain for damage to or loss of property you believe
occurred because of the incident. For purposes of this subpart, we
consider your claim to be filed on the date we receive it, at the
address specified in paragraph (c) of this section. If you mistakenly
send your claim to another Federal agency, we will not consider it to
be filed until the date that we receive it. If you mistakenly file a
claim meant for another Federal agency with SSA, we will transfer it to
the appropriate Federal agency, if possible. If we are unable to
determine the appropriate agency, we will return the claim to you.
(b) Filing an amendment to your claim. You may file an amendment to
your properly filed claim at any time before the SSA Claims Officer (as
defined in Sec. 429.201(d)(3)) makes a final decision on your claim or
before you bring suit under 28 U.S.C. 2675(a). You must submit an
amendment in writing and sign it. If you file a timely amendment, SSA
has 6 months in which to finally dispose of the amended claim. Your
option to file suit does not begin until 6 months after you file the
amendment.
(c) Where to obtain claims forms and file claims. You may obtain
claims forms and must file your claim with the Social Security
Administration, Office of the General Counsel, Administrative Claims
Unit, Room 617 Altmeyer Building, 6401 Security Boulevard, Baltimore,
Maryland 21235-6401.
Sec. 429.103 Who may file my claim?
(a) Claims for damage to or loss of property. If you are the owner
of the property interest that is the subject of the claim, you, your
duly authorized agent, or your legal representative may file the claim.
(b) Claims for personal injury. If you suffered the injury, you,
your duly authorized agent, or your legal representative may file the
claim.
(c) Claims based on death. The executor or administrator of your
estate or any other person legally entitled to do so may file the
claim.
(d) Claims for loss wholly compensated by an insurer with the
rights of a subrogee. The insurer may file the claim. When an insurer
presents a claim asserting the rights of a subrogee, the insurer must
present with the claim appropriate evidence that it has the rights of a
subrogee.
(e) Claims for loss partially compensated by an insurer with the
rights of a subrogee. You and the insurer may file, jointly or
separately. When an insurer presents a claim asserting the rights of a
subrogee, the insurer must present with the claim appropriate evidence
that it has the rights of a subrogee.
(f) Claims by authorized agents or other legal representatives.
Your duly authorized agent or other legal representative may submit
your claim, provided satisfactory evidence is submitted establishing
that person has express authority to act on your behalf. A claim
presented by an agent or legal representative must be presented in your
name. If the claim is signed by the agent or legal representative, it
must show the person's title or legal capacity and must be accompanied
by evidence that the person has the authority to file the claim on your
behalf as agent, executor, administrator, parent, guardian or other
representative.
Sec. 429.104 What evidence do I need to submit with my claim?
(a) Property damage. To support a claim for property damage, either
real or personal, you may be required to submit the following evidence
or information:
(1) Proof of ownership.
(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, market
value of the property as of date of damage, and salvage value, where
repair is not economical.
(5) Any other evidence or information which may have a bearing
either on the responsibility of the United States for the injury to or
loss of property or the damages claimed.
(b) Personal injury. To support a claim for personal injury,
including pain and suffering, you may be required to submit the
following evidence or information:
(1) A written report from your attending physician or dentist
setting forth the nature and extent of your injury, nature and extent
of treatment, any degree of temporary or permanent disability, your
prognosis, period of hospitalization, and any diminished earning
capacity. You may also be required to submit to a physical or mental
examination by a physician employed or designated by SSA. If you submit
a written request, we will
[[Page 77945]]
provide you with a copy of the report of the examining physician
provided you agree to make available to SSA any other physician's
reports made of the physical or mental condition that is the subject of
your claim.
(2) Itemized bills for medical, dental, and hospital expenses
incurred, or itemized receipts of payment for such expenses.
(3) If your prognosis reveals that you will need future treatment,
a statement of expected duration of and expenses for such treatment.
(4) If you claim a loss of time from employment, a written
statement from your employer showing actual time lost from employment,
whether you are a full or part-time employee, and wages or salary you
actually lost.
(5) If you claim a loss of income and are self-employed,
documentary evidence showing the amount of earnings you actually lost.
For example, we may use income tax returns for several years prior to
the injury in question and the year in which the injury occurred to
indicate or measure lost income; a statement of how much it cost you to
hire someone to do the same work you were doing at the time of the
injury might also be used in measuring lost income.
(6) 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) Claim Based on Death. To support the claim, we need the
following evidence or information:
(1) An authenticated death certificate or other believable
documentation showing cause of death, date of death, and your age at
the time of death.
(2) Your employment or occupation at time of death, including your
monthly or yearly salary or earnings (if any), and the duration of your
last employment or occupation.
(3) Full names, addresses, birth dates, kinship, and marital status
of your survivors, including identification of those survivors who were
dependent upon you for support at the time of your death.
(4) Degree of support you provided to each survivor dependent on
you for support at the time of your death.
(5) Your general physical and mental condition before death.
(6) Itemized bills for medical and burial expenses incurred, or
itemized receipts of payments for such expenses.
(7) If damages for pain and suffering prior to death are claimed, a
physician's detailed statement specifying the injuries suffered,
duration of pain and suffering, any drugs administered for pain and
your physical condition in the interval between injury and death.
(8) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the death or the
damages claimed.
(d) Time limit for submitting evidence. You must furnish all the
evidence required by this section within a reasonable time. If you fail
to furnish all the evidence necessary to determine your claim within 60
days after being asked to do so, we may find that you have decided to
abandon your claim.
Sec. 429.105 What happens when you receive my claim?
When we receive your claim, we will investigate to determine its
validity. After our investigation, we will forward your claim to the
SSA Claims Officer with our recommendation as to whether your claim
should be fully or partially allowed or denied.
Sec. 429.106 What happens if my claim is denied?
(a) If your claim is denied, the SSA Claims Officer will send you,
your agent, or your legal representative a written notice by certified
or registered mail. The notice will include an explanation of why your
claim was denied and will advise you of your right to file suit in an
appropriate U.S. District Court not later than 6 months after the date
of the mailing of the notice if you disagree with the determination.
(b) Before filing suit and before expiration of the 6-month period
after the date of the mailing of the denial notice, you, your duly
authorized agent, or your legal representative may file a written
request with SSA for reconsideration by certified or registered mail.
If you file a timely request for reconsideration, SSA has 6 months from
the date you file your request in which to finally dispose of your
claim. Your right to file suit will not begin until 6 months after you
file your request for reconsideration. Final SSA action on your request
for reconsideration will occur in accordance with the provisions of
paragraph (a) of this section.
Sec. 429.107 If my claim is approved, how do I obtain payment?
(a) Claims under $2,500. If your claim is approved, you must
complete a ``Voucher for Payment under the Federal Tort Claims Act,''
Standard Form 1145. If you are represented by an attorney, the voucher
for payment (SF 1145) must designate both you and your attorney as
``payees''; we will then mail the check to your attorney.
(b) Claims in excess of $2,500. If your claim is approved, SSA will
forward the appropriate Financial Management Service (FMS) Forms 194,
195, 196, 197, and/or 197-A to the Judgment Fund Section, Financial
Management Service, Department of the Treasury, Room 6D37, 3700 East-
West Highway, Hyattsville, Maryland 20782. FMS will then mail the
payment to you.
Sec. 429.108 What happens if I accept an award, compromise or
settlement under this subpart?
If you, your agent, or your legal representative accept any award,
compromise or settlement under this subpart, your acceptance is final
and conclusive on you, your agent or representative and any other
person on whose behalf or for whose benefit the claim was filed. The
acceptance constitutes a complete release of any claim against the
United States and against any employee of the Government whose act or
omission gave rise to the claim, by reason of the same subject matter.
Sec. 429.109 Are there any penalties for filing false claims?
A person who files a false claim or makes a false or fraudulent
statement in a claim against the United States may be imprisoned for
not more than 5 years. (18 U.S.C. Secs. 287; 1001). In addition, that
person may be liable for a civil penalty of not less than $5,000 and
not more than $10,000 and damages of triple the loss or damage
sustained by the United States, as well as the costs of a civil action
brought to recover any penalty or damages. (31 U.S.C. Sec. 3729).
Sec. 429.110 Are there any limitations on SSA's authority under this
subpart?
(a) An award, compromise or settlement of a claim under this
subpart in excess of $25,000 needs the prior written approval of the
Attorney General or his designee. For the purposes of this paragraph,
we treat a principal claim and any derivative or subrogated claim as a
single claim.
(b) An administrative claim may be adjusted, determined,
compromised or settled under this subpart only after consultation with
the Department of Justice when, in the opinion of SSA:
(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 SSA 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.
[[Page 77946]]
(c) An administrative claim may be adjusted, determined,
compromised or settled only after consultation with the Department of
Justice when it is learned that the United States or an employee, agent
or cost plus contractor of the United States is involved in litigation
based on a claim arising out of the same incident or transaction.
Subpart B--Claims Under the Military Personnel and Civilian
Employees' Claims Act of 1964
Sec. 429.201 What is this subpart about?
(a) Scope and Purpose. This subpart applies to all claims filed by
or on behalf of employees of SSA for loss of or damage to personal
property incident to their service with SSA under the Military
Personnel and Civilian Employees Claims Act of 1964, as amended, 31
U.S.C. 3721, (MPCECA). A claim must be substantiated and the possession
of the property determined to be reasonable, useful or proper.
(b) Maximum payment under this part. The maximum amount that can be
paid for any claim under the Act is $40,000 or, in extraordinary
circumstances, $100,000, and property may be replaced in kind at the
discretion of the Government.
(c) Policy. SSA is not an insurer and does not underwrite all
personal property losses that an employee may sustain incident to
employment. We encourage employees to carry private insurance to the
maximum extent practicable to avoid losses which may not be recoverable
from SSA. The procedures set forth in this subpart are designed to
enable you to obtain the proper amount of compensation from SSA and/or
a private insurer for the loss or damage. If you fail to comply with
these procedures it could reduce or preclude payment of your claim
under this subpart.
(d) Definitions.
(1) Quarters, unless otherwise indicated, means a house, apartment,
or other residence that is an SSA employee's principal residence.
(2) State, unless otherwise indicated, is defined by Sec.
404.2(c)(5) of title 20 of the Code of Federal Regulations.
(3) SSA Claims Officer means the SSA official designated to
determine claims under the Act. The current designee is the Associate
General Counsel for General Law.
Sec. 429.202 How do I file a claim under this subpart?
(a) Who may file.
(1) You, your duly authorized agent, your legal representative or
your survivor may file the claim. If your survivor files the claim, the
order of precedence for filing is spouse, child, parent, sibling.
(2) You may not file a claim on behalf of a subrogee, assignee,
conditional vendor or other third party.
(b) Where to file. You must file your claim with the Social
Security Administration, Office of the General Counsel, Administrative
Claims Unit, 6401 Security Boulevard, Room 617 Altmeyer Building,
Baltimore, Maryland 21235.
(c) Evidence required. You are responsible for proving ownership or
possession, the facts surrounding the loss or damage, and the value of
the property. Your claim must include the following:
(1) A written statement, signed by you or your authorized agent,
explaining how the damage or loss occurred. This statement must also
include:
(i) A description of the type, design, model number or other
identification of the property.
(ii) The date you purchased or acquired the property and its
original cost.
(iii) The location of the property when the loss or damage
occurred.
(iv) The value of the property when lost or damaged.
(v) The actual or estimated cost of the repair of any damaged item.
(vi) The purpose of and authority for travel, if the loss or damage
occurred while you were transporting your property or using a motor
vehicle.
(vii) All available information as to who was responsible for the
loss or damage, if it was not you, and all information as to insurance
contracts, whether in your name or in the name of the responsible
party.
(viii) Any other evidence about loss or damage that the SSA Claims
Officer determines is necessary.
(2) Copies of all available and appropriate documents such as bills
of sale, estimates of repairs, or travel orders. In the case of damage
to an automobile, you must submit at least two estimates of repair or a
certified paid bill showing the damage incurred and the cost of all
parts, labor and other items necessary to the repair of the vehicle or
a statement from an authorized dealer or repair garage showing that the
cost of such repairs exceeds the value of the vehicle.
(3) A copy of the power of attorney or other authorization if
someone else files the claim on your behalf.
(4) A statement from your immediate supervisor confirming that
possession of the property was reasonable, useful or proper under the
circumstances and that the damage or loss was incident to your service.
(d) Time limitations. You must file a written claim within 2 years
after accrual of the claim. For purposes of this subpart, your claim
accrues at the later of:
(1) The time of the accident or incident causing the loss or
damage;
(2) The time the loss or damage should have been discovered by the
claimant by the exercise of due diligence; or
(3) Where valid circumstances prevented you from filing your claim
earlier, the time that should be construed as the date of accrual
because of a circumstance which prevents the filing of a claim. If war
or armed conflict prevents you from filing the claim, your claim
accrues on the date hostilities terminate and your claim must be filed
within two years of that date.
Sec. 429.203 When is a claim allowable?
(a) A claim is allowable only if you were using the property
incident to your service with SSA, with the knowledge and consent of a
superior authority, and:
(1) The damage or loss was not caused wholly or partially by the
negligent or improper action or inaction of you, your agent, the
members of your family, or your private employee (the standard to be
applied is that of reasonable care under the circumstances); and
(2) The possession of the property lost or damaged and the quantity
and the quality possessed is determined to have been reasonable, useful
or proper under the circumstances; and
(3) The claim is substantiated by proper and convincing evidence.
(b) Claims that are otherwise allowable under this subpart will not
be disallowed solely because you were not the legal owner of the
property for which the claim is made.
(c) Subject to the conditions in paragraph (a) of this section and
the other provisions of this subpart, any claim you make for damage to,
or loss of, personal property that occurs incident to your service with
SSA may be considered and allowed. For the purpose of this subpart, if
you were performing your official duties at an alternate work location
under an approved flexiplace agreement, the alternate work location
will be considered an official duty station even if it is located in
your principal residence. The alternate work location is not considered
to be quarters. The following are examples of the principal types of
claims that are allowable, but these examples are not exclusive and
other types of claims are allowable,
[[Page 77947]]
unless specifically excluded under this subpart:
(1) Property damage in quarters or other authorized places. Claims
are allowable for damage to, or loss of, property arising from fire,
flood, hurricane, other natural disaster, theft, or other unusual
occurrence, while such property is located at:
(i) Quarters within a state that were assigned to you or otherwise
provided in kind by the United States; or
(ii) Any warehouse, office, working area or other place (except
quarters) authorized or apparently authorized for the reception or
storage of property.
(2) Transportation or travel losses. Claims are allowable for
damage to, or loss of, property incident to transportation or storage
of such property pursuant to order or in connection with travel under
orders, including property in your custody or in the custody of a
carrier, an agent or agency of the Government.
(3) Mobile homes. Claims may be allowed for damage to, or loss of,
mobile homes and their contents under the provisions of paragraph
(c)(2) of this section. Claims for structural damage to mobile homes,
other than that caused by collision, and damage to contents of mobile
homes resulting from such structural damage, must contain conclusive
evidence that the damage was not caused by structural deficiency of the
mobile home and that it was not overloaded. Claims for damage to, or
loss of, tires mounted on mobile homes are not allowable, except in
cases of collision, theft or vandalism.
(4) Enemy action or public service. Claims are allowable for damage
to, or loss of, property that directly result from:
(i) Enemy action or threat of enemy action, or combat, guerrilla,
brigandage, or other belligerent activity, or unjust confiscation by a
foreign power or its nationals.
(ii) Action you take to quiet a civil disturbance or to alleviate a
public disaster.
(iii) Efforts you make to save human life or Government property.
(5) Property used for the benefit of the Government. Claims are
allowable for damage to, or loss of, property when used for the benefit
of the Government at the request of, or with the knowledge and consent
of, superior authority up to the amount not compensated by private
insurance.
(6) Clothing and accessories. Claims are allowable for damage to,
or loss of, clothing and accessories a person customarily wears and
devices such as eyeglasses, hearing aids, dentures, or prosthetics.
(7) Expenses incident to repair. You may be reimbursed for the
payment of any sales tax and other such fees incurred in connection
with repairs to an item. The costs of obtaining estimates of repair
(subject to the limitations set forth in Sec. 429.204(c)) are also
allowable.
Sec. 429.204 Are there any restrictions on what is allowable?
Claims of the type described in this section are only allowable
subject to the restrictions noted:
(a) Money or currency, including coin collections. Allowable only
when lost because of fire, flood, hurricane, other natural disaster,
theft from quarters (as limited by Sec. 429.203(c)(1)), or under other
reasonable circumstances in which it would be in the Government's best
interest to make payment. In cases involving theft from quarters, the
evidence must conclusively show that your quarters were locked at the
time of the theft. Reimbursement for loss of money or currency is
limited to the amount it is determined reasonable for you to have had
in your possession at the time of the loss.
(b) Government property. Allowable only for property owned by the
United States for which you are financially responsible to an agency of
the Government other than SSA.
(c) Estimate fees. Allowable for fees paid to obtain estimates of
repairs only when it is clear that you could not have obtained an
estimate without paying a fee. In that case, the fee is allowable only
in an amount determined to be reasonable in relation to the value of
the property or the cost of the repairs.
(d) Automobiles and motor vehicles. (1) Claims may only be allowed
for damage to, or loss of automobiles and other motor vehicles if:
(i) You were required to use a motor vehicle for official
Government business (official Government business, as used here, does
not include travel, or parking incident to travel, between quarters and
office, quarters and an approved telecommuting center, or use of
vehicles for the convenience of the owner. However, it does include
travel, and parking incident thereto, between quarters and an assigned
place of duty specifically authorized by your supervisor as being more
advantageous to the Government); or
(ii) Shipment of such motor vehicles was being furnished or
provided by the Government, subject to the provisions of Sec. 429.206
of this chapter; or
(2) When a claim involves damage to or loss of automobile or other
motor vehicle, you will be required to present proof of insurance
coverage, the deductible amount, and the amount, if any, you recovered
from the insurer. If your claim is for an amount that exceeds the
deductible on the insurance policy, the maximum allowable recovery will
be for the amount of the deductible. If the vehicle is uninsured, the
maximum allowed will be $500.00.
(e) Computers and Electronics. Claims may be allowed for loss of,
or damage to, cellular phones, fax machines, computers and related
hardware and software only when lost or damaged incident to fire,
flood, hurricane, other natural disaster, theft from quarters (as
limited by Sec. 429.203(c)(1) of this chapter), other reasonable
circumstances in which it would be in the Government's best interest to
make payment, or unless being shipped as a part of a change of duty
station paid for by the Agency. In incidents of theft from quarters, it
must be conclusively shown that your quarters were locked at the time
of the theft.
(f) Alternate Work Locations. When a claim is filed for property
damage or loss at a non-Government alternate work location at which you
are working pursuant to an approved flexiplace work agreement, you are
required to present proof of insurance coverage, the deductible amount,
and the amount, if any, you recovered from the insurer. If your claim
is for an amount that exceeds the deductible on the insurance policy,
the maximum allowable recovery will be for the amount of the
deductible. If the property is uninsured, the maximum allowed will be
$1000.00.
Sec. 429.205 What is not allowable under this subpart?
Claims are not allowable for the following:
(a) Unassigned quarters in United States. Property loss or damage
in quarters you occupied within any state that were not assigned to you
or otherwise provided in kind by the United States.
(b) Business property. Property used for business or profit.
(c) Unserviceable property. Wornout or unserviceable property.
(d) Illegal possession. Property acquired, possessed or transferred
in violation of the law or in violation of applicable regulations or
directives.
(e) Articles of extraordinary value. Valuable articles, such as
cameras, watches, jewelry, furs or other articles of extraordinary
value. This prohibition does not apply to articles in your personal
custody or articles properly checked or inventoried with a common
carrier, if you took reasonable protection or security measures.
(f) Intangible property. Loss of property that has no extrinsic and
[[Page 77948]]
marketable value but is merely representative or evidence of value,
such as non-negotiable stock certificates, promissory notes, bonds,
bills of lading, warehouse receipts, insurance policies, baggage
checks, and bank books, is not compensable. Loss of a thesis, or other
similar item, is compensable only to the extent of the out-of-pocket
expenses you incurred in preparing the item such as the cost of the
paper or other materials. No compensation is authorized for the time
you spent in its preparation or for supposed literary value.
(g) Incidental expenses and consequential damages. The Act and this
subpart authorize payment for loss of or damage to personal property
only. Except as provided in Sec. 429.203(c)(7), consequential damages
or other types of loss or incidental expenses (such as loss of use,
interest, carrying charges, cost of lodging or food while awaiting
arrival of shipment, attorney fees, telephone calls, cost of
transporting you or your family members, inconvenience, time spent in
preparation of claim, or cost of insurance premiums) are not
compensable.
(h) Real property. Damage to real property is not compensable. In
determining whether an item is considered to be an item of personal
property, as opposed to real property, normally, any movable item is
considered personal property even if physically joined to the land.
(i) Commercial property. Articles acquired or held for sale or
disposition by other commercial transactions on more than an occasional
basis, or for use in a private profession or business enterprise.
(j) Commercial storage. Property stored at a commercial facility
for your convenience and at your expense.
(k) Claims for minimum amount. Loss or damage amounting to less
than $25.
Sec. 429.206 What if my claim involves a commercial carrier or an
insurer?
In the event the property which is the subject of the claim was
lost or damaged while in the possession of a commercial carrier or was
insured, the following procedures will apply:
(a) Whenever property is damaged, lost or destroyed while being
shipped pursuant to authorized travel orders, the owner must file a
written claim for reimbursement with the last commercial carrier known
or believed to have handled the goods, or the carrier known to be in
possession of the property when the damage or loss occurred, according
to the terms of its bill of lading or contract, before submitting a
claim against the Government under this subpart.
(b) Whenever property is damaged, lost or destroyed incident to
your service and is insured in whole or in part, you must make demand
in writing against the insurer for reimbursement under the terms and
conditions of the insurance coverage, before filing a claim against the
Government.
(c) Failure to make a demand on a carrier or insurer or to make all
reasonable efforts to protect and prosecute rights available against a
carrier or insurer and to collect the amount recoverable from the
carrier or insurer may result in reducing the amount recoverable from
the Government by the maximum amount which would have been recoverable
from the carrier or insurer had the claim been timely or diligently
prosecuted. However, no deduction will be made where the circumstances
of your service preclude reasonable filing of a claim or diligent
prosecution, or the evidence indicates a demand was impracticable or
would have been unavailing.
(d) After you file a claim against the carrier or insurer, you may
immediately submit a claim under this subpart, without waiting until
the carrier or insurer finally approves or denies your claim.
(1) Upon submitting your claim, you must certify whether you have
not gained any recovery from a carrier or insurer, and enclose all
pertinent correspondence.
(2) If the carrier or insurer has not taken final action on your
claim, you must immediately tell the carrier or insurer to address all
correspondence regarding the claim to the SSA Claims Officer, and you
must provide a copy of this notice to the SSA Claims Officer.
(3) You must advise the SSA Claims Officer of any action the
carrier or insurer takes on the claim and, upon request, must furnish
all correspondence, documents, and other evidence pertinent to the
matter.
(e) You must assign to the United States, to the extent you accept
any payment on the claim, all rights, title and interest in any claim
you may have against any carrier, insurer, or other party arising out
of the incident on which your claim against the United States is based.
After payment of the claim by the United States, you must, upon receipt
of any payment from a carrier or insurer, pay the proceeds to the
United States to the extent of the payment you received from the United
States.
(f) If you recover for the loss from the carrier or insurer before
your claim under this subpart is settled, the amount of recovery will
be applied to the claim as follows:
(1) If you recover an amount that is greater than or equal to your
total loss as determined under this subpart, no compensation is
allowable under this subpart.
(2) If you recover an amount that is less than such total loss, the
allowable amount is determined by deducting the recovery from the
amount of such total loss.
(3) For this purpose, your total loss is determined without regard
to the maximum payment limitations set forth in Sec. 429.201. However,
if the resulting amount after making this deduction exceeds the maximum
payment limitations, you will only be allowed the maximum amount set
forth in Sec. 429.201.
(g) In a claim arising from damage to an automobile or other motor
vehicle, in no event may recovery exceed the reasonable deductible on
the insurance policy.
Sec. 429.207 What are the procedures for filing a claim?
(a) Form of claim. Your claim must be presented in writing (SSA
Form 1481 is available for this purpose). Any writing received by the
SSA Claims Officer within the time limits set forth in Sec. 429.202(d)
will be accepted and considered a claim under the MPCECA if it
constitutes a demand for compensation from SSA. A demand is required to
be for a specific sum of money.
(b) Award. The SSA Claims Officer is authorized to settle claims
filed under this subpart.
(c) Notification. The deciding official will provide you with a
written determination on your claim.
Sec. 429.208 How do you determine the award? Is the settlement of my
claim final?
(a) The amount allowable for damage to or loss of any item of
property may not exceed the lowest of:
(1) The amount you requested for the item as a result of its loss,
damage or the cost of its repair;
(2) The actual or estimated cost of its repair; or
(3) the actual value at the time of its loss, damage, or
destruction. The actual value is determined by using the current
replacement cost or the depreciated value of the item since you
acquired it, whichever is lower, less any salvage value of the item in
question, if you retain the item.
(b) Depreciation in value is determined by considering the type of
article involved, its cost, its condition when damaged or lost, and the
time
[[Page 77949]]
elapsed between the date you acquired it and the date of damage or
loss.
(c) Current replacement cost and depreciated value are determined
by use of publicly available adjustment rates or through use of other
reasonable methods at the discretion of the SSA Claims Officer.
(d) Replacement of lost or damaged property may be made in kind
wherever appropriate at the discretion of the SSA Claims Officer.
(e) At the discretion of the SSA Claims Officer, you may be
required to turn over an item alleged to have been damaged beyond
economical repair to the United States, in which case no deduction for
salvage value will be made in the calculation of actual value.
(f) Settlement of claims under the Act are final and conclusive.
Sec. 429.209 Are there any restrictions on attorney's fees?
No more than 10 per cent of the amount in settlement of each
individual claim submitted and settled under this subpart shall be paid
or delivered to or received by any agent or attorney on account of
services rendered in connection with that claim. A person violating
this subsection shall be fined not more than $1,000.00. (31 U.S.C.
3721(i))
Sec. 429.210 Do I have any appeal rights under this subpart?
(a) Deciding Official. While you may not appeal the decision of the
SSA Claims Officer in regard to claims under the MPCECA, the SSA Claims
Officer may, at his or her discretion, reconsider his or her
determination of a claim.
(b) Claimant. You may request reconsideration from the SSA Claims
Officer by sending a written request for reconsideration to the SSA
Claims Officer within 30 days of the date of the original
determination. You must clearly state the factual or legal basis upon
which you base your request for a more favorable determination.
Reconsideration will be granted only for reasons not available or not
considered during the original decision.
(c) Notification. The SSA Claims Officer will send you a written
determination on your request for reconsideration. If the SSA Claims
Officer elects to reconsider your claim, the final determination on
reconsideration is final and conclusive.
Sec. 429.211 Are there any penalties for filing false claims?
A person who files a false claim or makes a false or fraudulent
statement in a claim against the United States may be imprisoned for
not more than 5 years (18 U.S.C. 287; 1001). In addition, that person
may be liable for a civil penalty of not less than $5,000 and not more
than $10,000 and damages of triple the loss or damage sustained by the
United States, as well as the costs of a civil action brought to
recover any penalty or damages (31 U.S.C. 3729).
[FR Doc. 02-32051 Filed 12-19-02; 8:45 am]
BILLING CODE 4191-02-P