[Federal Register Volume 62, Number 164 (Monday, August 25, 1997)]
[Proposed Rules]
[Pages 45060-45064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22389]
[[Page 45059]]
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Part III
Office of Personnel Management
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5 CFR Parts 178 and 551
Settling Claims Procedures and Fair Labor Standards Act Pay
Administration; Proposed Rules
Federal Register / Vol. 62, No. 164 / Monday, August 25, 1997 /
Proposed Rules
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 178
RIN 3206-H89
Procedures for Settling Claims
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The Office of Personnel Management is proposing rules of
procedure for the settlement of claims submitted to OPM for Federal
civilian employees' compensation and leave, for proceeds of canceled
checks for veterans' benefits payable to deceased beneficiaries, and
for the settlement of deceased employees' compensation. Before June 30,
1996, these claims were settled by the United States General Accounting
Office (GAO). However, on that date, pursuant to the Legislative Branch
Appropriations Act of 1996, the authority to settle these claims
transferred to the Director, Office of Management and Budget, who
delegated this function to the Office of Personnel Management.
DATES: Comments must be submitted on or before October 24, 1997.
ADDRESSES: Comments may be mailed to the Claims Adjudication Unit,
Office of the General Counsel, Room 7537, Office of Personnel
Management, 1900 E Street NW., Washington, DC 20415.
FOR FURTHER INFORMATION CONTACT:
Paul Britner, Senior Attorney, 202-606-2233.
SUPPLEMENTARY INFORMATION:
I. Background
Pursuant to the Legislative Branch Appropriations Act of 1996, most
of the claims settlement functions performed by the General Accounting
Office (GAO) were transferred to the Director, Office of Management and
Budget. See Sec. 211, Pub. L. 104-53, 109 Stat. 535. Subsequently, the
Acting Director delegated these functions to various components within
the Executive branch in a determination order dated June 28, 1996. In
summary, this order delegated to the Office of Personnel Management the
authority to settle claims against the United States involving Federal
employees' compensation and leave, deceased employees' compensation,
and proceeds of canceled checks for veterans' benefits payable to
deceased beneficiaries. Subsequently, Congress codified these changes
through additional legislation. See Pub. L. 104-316, 110 Stat. 3826.
The procedures in this proposed rule are substantially similar to the
procedures formerly used by the GAO, which are found at 4 CFR parts 31,
32 and 33. Changes to these regulations are discussed below.
II. Analysis of the Regulations
Subpart A--Administrative Claims--Compensation and Leave, Deceased
employees' Accounts and Proceeds of Canceled Checks for Veterans'
Benefits Payable to Deceased Beneficiaries
Section 178.101, Scope of Subpart
This section describes the types of claims that may be submitted
for settlement to OPM, which are claims for federal civilian
compensation and leave and proceeds of canceled checks for veterans'
benefits payable to deceased beneficiaries. Claims subject to a
negotiated grievance procedure are excluded from this part.
Section 178.102, Procedures for Submitting Claims
This section requires claimants to submit their claims directly to
OPM, except that at an agency's discretion, the agency may forward the
claim on behalf of a claimant. The information that must be included in
a claim and an agency report, when requested by OPM, is described. This
section also advises claimants where their claims should be sent,
depending on the nature of the claim. As a general rule, claims arising
from the Fair Labor Standards Act (FLSA) are to be sent to the
designated OPM Oversight Division that has jurisdiction for the
location of the claim. All other claims are to be sent to OPM in
Washington, DC. to the address set forth in the regulations.
Sections 178.103-178.106
These sections do not make any substantive changes to the
comparable GAO procedures.
Section 178.107, Finality of Claims Settlements
Under GAO's regulations, a dissatisfied claimant could appeal an
adverse settlement to the Comptroller General and, if sustained, the
claimant could request reconsideration of that decision. Unlike the
settlement process at GAO, there will be no further review within OPM.
At GAO, the initial claims settlement letter was prepared by an
adjudicator and was reviewed by an attorney only if the claimant
requested an appeal. At OPM, all settlement letters, except those
involving FLSA claims, are reviewed by an attorney before they are
issued. Therefore, non-FLSA claims settled by OPM will get
substantially the same level of review as claims settled by GAO.
Claimants also are advised of their right to bring an action in an
appropriate United States court.
Subpart B--Settlement of Accounts for Deceased Civilian Officers and
Employees
Section 178.201, Scope of Subpart
This subpart applies to claims for money due to the accounts of
deceased civilian officers and employees of the Federal Government and
of the government of the District of Columbia, including wholly owned
and mixed-ownership Government corporations.
Section 178.202, Definitions
Definitions used in subpart B are provided in this section.
Section 178.203, Designation of Beneficiary
This section combines Secs. 33.4 and 33.5 of 4 CFR into one that
describes an employee's right to designate a beneficiary for money due,
an agency's responsibility for employee notification, and the specific
form and procedures for doing so. The procedures have been shortened
and streamlined but contain no substantive changes from the GAO
procedures.
Section 178.204, Order of Payment Precedence
This section was taken from paragraph (d) of 4 CFR 33.6 and made
into a separate section outlining the order of payment precedence.
Section 178.205, Procedures Upon Death of Employee
This section outlines procedures that should be followed upon the
death of an employee by the employee's designated beneficiaries or
survivors for the settlement of accounts of any money due to the
decedent. This section combines 4 CFR 33.7 and 33.8 of the GAO
procedures and reorganizes the information provided. The substance of
the section remains the same as in the GAO sections.
Section 178.206, Return of Unnegotiated Government Checks
This section contains no substantive change to the GAO procedures.
Section 178.207, Claims Settlement Jurisdiction
This section has been streamlined to include only information about
claims settlements. The information regarding order of payment
precedence has been placed in a separate section. This section refers
claimants to the procedures in subpart A and the
[[Page 45061]]
jurisdiction of the Claims Adjudication Unit, Office of General
Counsel, Office of Personnel Management, for settlement of any claims
arising under this subpart.
Section 178.208, Applicability of General Procedures
This section refers readers to subpart A of this part for
application of general claims procedures. This function was previously
covered under 4 CFR part 31.
Regulatory Flexibility Act
I certify that these regulations would not have a significant
economic impact on a substantial number of small entities because they
would only apply to Federal agencies and employees.
Executive Order 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.
Paperwork Reduction Act of 1995
Section 178.102, 178.103 and 178.205(b) contain information
collection requirements related to procedures for submitting claims.
These regulations assist OPM in settling claims by requiring that
information be gathered in an organized and efficient manner. Section
178.102 sets out the required contents of any claim submitted;
Sec. 178.103 is an additional requirement of proof if the claim is
filed by a representative of the claimant; and Sec. 178.205(b) lists
the information necessary, should the claim involve a minor or
incompetent.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), OPM has submitted a copy of these sections to the Office of
Management and Budget (OMB) for review. Collection of Information:
Procedures for Submitting Claims for Compensation and Leave, Deceased
Employees' Accounts, and Proceeds of Canceled Checks for Veterans'
Benefits Payable to Deceased Beneficiaries.
The total estimated annual reporting burden resulting from these
collection of information requirements is 130.5 hours.
(130 respondents x 1 hour {average time to prepare claim}) = 130.00 + ..........................
(1 representative x .25 {time for additional requirements}) = .25 + ..........................
(1 minor or incompetent x .25 {additional requirements}) = .25 ..........................
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annual reporting burden 130.50 ..........................
Organizations and individuals desiring to submit comments on these
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, OMB, Room 10235, New Executive
Office Building, Washington, DC 20503; Attention: Desk Officer for OPM.
OMB considers comments by the public on this proposed collection of
information in:
Evaluating whether the proposed collection of information
is necessary for the proper performance of the functions of the
Department, including whether the information will have a practical
use;
Evaluating the accuracy of the Department's estimate of
the burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
Enhancing the quality, usefulness, and clarity of the
information to be collected: and
Minimizing the burden of collection of information on
those who are to respond, including through the use of appropriate
automated electronic, mechanical or other technological collection
techniques or other forms of information technology; e.g., permitting
electronic submission of responses.
OMB is required to make a decision concerning the collection of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its effect if OMB
receives it within 30 days of publication. This does not affect the
deadline for the public to comment to OPM on the proposed regulations.
List of Subjects in 5 CFR Part 178
Administrative practice and procedure, Claims, Compensation,
Government employees.
U.S. Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM is proposing to amend 5 CFR by adding part 178 as
follows:
PART 178--PROCEDURES FOR SETTLING CLAIMS
Subpart A--Administrative Claims--Compensation and Leave, Deceased
Employees' Accounts and Proceeds of Canceled Checks for Veterans'
Benefits Payable to Deceased Beneficiaries
Sec.
178.101 Scope of subpart.
178.102 Procedures for submitting claims.
178.103 Claim filed by a claimant's representative.
178.104 Statutory limitations on claims.
178.105 Basis of claim settlements.
178.106 Form of claim settlements.
178.107 Finality of claims settlements.
Subpart B--Settlement of Accounts for Deceased Civilian Officers and
Employees
Sec.
178.201 Scope of subpart.
178.202 Definitions.
178.203 Designation of beneficiary.
178.204 Order of payment precedence.
178.205 Procedures upon death of employee.
178.206 Return of unnegotiated Government checks.
178.207 Claims settlement jurisdiction.
178.208 Applicability of general procedures.
Subpart A--Administrative Claims--Compensation and Leave, Deceased
Employees' Accounts and Proceeds of Canceled Checks for Veterans'
Benefits Payable to Deceased Beneficiaries
Authority: 31 U.S.C. 3702; 5 U.S.C. 5583; 38 U.S.C. 5122; Pub.
L. 104-53, sec. 211, Nov. 19, 1995; E.O. 12107.
Sec. 178.101 Scope of subpart.
(a) Claims covered. This subpart prescribes general procedures
applicable to claims against the United States that may be settled by
the Director of the Office of Personnel Management pursuant to 31
U.S.C. 3702, 5 U.S.C. 5583 and 38 U.S.C. 5122. In general, these claims
involve Federal employees' compensation and leave and claims for
proceeds of canceled checks for veterans' benefits payable to deceased
beneficiaries.
(b) Claims not covered. This subpart does not apply to claims that
are under the exclusive jurisdiction of administrative agencies
pursuant to specific statutory authority or claims concerning matters
that are subject to negotiated grievance procedures under collective
bargaining agreements entered into pursuant to 5 U.S.C. 7121(a). Also,
these procedures do not apply to claims under the Fair Labor Standards
Act (FLSA). Procedures for FLSA claims are set out in part 551 of this
chapter.
[[Page 45062]]
Sec. 178.102 Procedures for submitting claims.
(a) Content of claims. Except as provided in paragraph (b) of this
section, a claim shall be submitted by the claimant in writing and must
be signed by the claimant or by the claimant's representative. While no
specific form is required, the request should describe the basis for
the claim and state the amount sought. The claim should also include:
(1) The name, address, telephone number and facsimile machine
number, if available, of the claimant;
(2) The name, address, telephone number and facsimile machine
number, if available, of the agency employee who denied the claim;
(3) A copy of the denial of the claim; and,
(4) Any other information which the claimant believes OPM should
consider.
(b) Agency submissions of claims. At the discretion of the agency,
the agency may forward the claim to OPM on the claimant's behalf. The
claimant is responsible for ensuring that OPM receives all the
information requested in paragraph (a) of this section.
(c) Administrative report. At OPM's discretion, OPM may request the
agency to provide an administrative report. This report should include:
(1) The agency's factual findings;
(2) The agency's conclusions of law with relevant citations;
(3) The agency's recommendation for disposition of the claim;
(4) A complete copy of any regulation, instruction, memorandum, or
policy relied upon by the agency in making its determination;
(5) A statement that the claimant is or is not a member of a
collective bargaining unit, and if so, a statement that the claim is or
is not covered by a negotiated grievance procedure that specifically
excludes the claim from coverage; and
(6) Any other information that the agency believes OPM should
consider.
(d) Canceled checks for veterans' benefits.. Claims for the
proceeds of canceled checks for veterans' benefits payable to deceased
beneficiaries must be accompanied by evidence that the claimant is the
duly appointed representative of the decedent's estate and that the
estate will not escheat.
(e) Where to submit claims. (1) All claims under this section
should be sent to the Claims Adjudication Unit, Room 7535, Office of
the General Counsel, Office of Personnel Management, 1900 E Street NW.,
Washington, DC 20415. Telephone inquiries regarding these claims may be
made to (202) 606-2233.
(2) FLSA claims should be sent to the appropriate OPM Oversight
Division as provided in part 551 of this chapter.
Sec. 178.103 Claim filed by a claimant's representative.
A claim filed by a claimant's representative must be supported by a
duly executed power of attorney or other documentary evidence of the
representative's right to act for the claimant.
Sec. 178.104 Statutory limitations on claims.
(a) Statutory limitations relating to claims generally. Except as
provided in paragraphs (b) and (c) of this section or as otherwise
provided by law, all claims against the United States Government are
subject to the 6-year statute of limitations contained in 31 U.S.C.
3702(b). To satisfy the statutory limitation, a claim must be received
by the Office of Personnel Management, or by the department or agency
out of whose activities the claim arose, within 6 years from the date
the claim accrued. The claimant is responsible for proving that the
claim was filed within the applicable statute of limitations.
(b) Claims under the Fair Labor Standards Act (FLSA). Claims
arising under the FLSA, 29 U.S.C. 207, et seq., must be received by the
Office of Personnel Management, or by the department or agency out of
whose activity the claim arose, within the time limitations specified
in the FLSA.
(c) Other statutory limitations. Statutes of limitation other than
that identified in paragraph (a) of this section may apply to certain
claims. Claimants are responsible for informing themselves regarding
other possible statutory limitations.
Sec. 178.105 Basis of claim settlements.
The burden is upon the claimant to establish the timeliness of the
claim, the liability of the United States, and the claimant's right to
payment. The settlement of claims is based upon the written record
only, which will include the submissions by the claimant and the
agency. OPM will accept the facts asserted by the agency, absent clear
and convincing evidence to the contrary.
Sec. 178.106 Form of claim settlements.
OPM will send a settlement to the claimant advising whether the
claim may be allowed in whole or in part. If OPM requested an agency
report or if the agency forwarded the claim on behalf of the claimant,
OPM also will send the agency a copy of the settlement.
Sec. 178.107 Finality of claim settlements.
(a) The OPM settlement is final; no further administrative review
is available within OPM.
(b) Nothing is this subpart limits the right of a claimant to bring
an action in an appropriate United States court.
Subpart B--Settlement of Accounts for Deceased Civilian Officers and
Employees
Authority: 5 U.S.C. 5581, 5582, 5583
Sec. 178.201 Scope of subpart.
(a) Accounts covered. This subpart prescribes forms and procedures
for the prompt settlement of accounts of deceased civilian officers and
employees of the Federal Government and of the government of the
District of Columbia (including wholly owned and mixed-ownership
Government corporations), as stated in 5 U.S.C. 5581, 5582, 5583.
(b) Accounts not covered. This subpart does not apply to accounts
of deceased officers and employees of the Federal land banks, Federal
intermediate credit banks, or regional banks for cooperatives (see 5
U.S.C. 5581(1)). Also, these procedures do not apply to payment of
unpaid balance of salary or other sums due deceased Senators or Members
of the House of Representatives or their officers or employees (see 2
U.S.C. 36a, 38a).
Sec. 178.202 Definitions.
(a) The term deceased employees as used in this part includes
former civilian officers and employees who die subsequent to separation
from the employing agency.
(b) The term money due means the pay, salary, or allowances due on
account of the services of the decedent for the Federal Government or
the government of the District of Columbia. It includes, but is not
limited to:
(1) All per diem instead of subsistence, mileage, and amounts due
in reimbursement of travel expenses, including incidental and
miscellaneous expenses which are incurred in connection with the travel
and for which reimbursement is due;
(2) All allowances upon change of official station;
(3) All quarters and cost-of-living allowances and overtime or
premium pay;
(4) Amounts due for payment of cash awards for employees'
suggestions;
(5) Amounts due as refund of salary deductions for United States
Savings bonds;
(6) Payment for all accumulated and current accrued annual or
vacation leave equal to the pay the decedent would have received had he
or she lived
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and remained in the service until the expiration of the period of such
annual or vacation leave;
(7) The amounts of all checks drawn in payment of such compensation
which were not delivered by the Government to the officer or employee
during his or her lifetime or of any unnegotiated checks returned to
the Government because of the death of the officer or employee; and
(8) Retroactive pay under 5 U.S.C. 5344(b)(2).
Sec. 178.203 Designation of beneficiary.
(a) Agency notification. The employing agency shall notify each
employee of his or her right to designate a beneficiary or
beneficiaries to receive money due, and of the disposition of money due
if a beneficiary is not designated. An employee may change or revoke a
designation at any time under regulations promulgated by the Director
of the Office of Personnel Management or his or her designee.
(b) Designation Form. Standard Form 1152, Designation of
Beneficiary, Unpaid Compensation of Deceased Civilian Employee, is
prescribed for use by employees in designating a beneficiary and in
changing or revoking a previous designation; each agency will furnish
the employee a Standard Form 1152 upon request. In the absence of the
prescribed form, however, any designation, change, or cancellation of
beneficiary witnessed and filed in accordance with the general
requirements of this part will be acceptable.
(c) Who may be designated. An employee may designate any person or
person as beneficiary. The term persons or persons as used in this part
includes a legal entity or the estate of the deceased employee.
(d) Executing and filing a designation of beneficiary form. The
Standard Form 1152 must be executed in duplicate by the employee and
filed with the employing agency where the proper officer will sign it
and insert the date of receipt in the space provided on each part, file
the original, and return the duplicate to the employee. When a
designation of beneficiary is changed or revoked, the employing agency
should return the earlier designation to the employee, keeping a copy
of only the current designation on file.
(e) Effective period of a designation. A properly executed and
filed designation of beneficiary will be effective as long as
employment by the same agency continues. If an employee resigns and is
reemployed, or is transferred to another agency, the employee must
execute another designation of beneficiary form in accordance with
paragraph (d) of this section. A new designation of beneficiary is not
required, however, when an employee's agency or site, function,
records, equipment, and personnel are absorbed by another agency.
Sec. 178.204 Order of payment precedence.
To facilitate the settlement of the accounts of the deceased
employees, money due an employee at the time of the employee's death
shall be paid to the person or persons surviving at the date of death,
in the following order of precedence, and the payment bars recovery by
another person of amounts so paid:
(a) First, to the beneficiary or beneficiaries designated by the
employee in a writing received in the employing agency prior to the
employee's death;
(b) Second, if there is no designated beneficiary, to the surviving
spouse of the employee;
(c) Third, if none of the above, to the child or children of the
employee and descendants of deceased children by representation;
(d) Fourth, if none of the above, to the parents of the deceased
employee or the survivor of them;
(e) Fifth, if none of the above, to the duly appointed legal
representative of the estate of the deceased employee; and
(f) Sixth, if none of the above, to the person or persons entitled
under the laws of the domicile of the employee at the time of his or
her death.
Sec. 178.205 Procedures upon death of employee.
(a) Claim form. As soon as practicable after the death of an
employee, the agency in which the employee was last employed will
request, in the order of precedence outlined in Sec. 178.204, the
appropriate person or persons to execute Standard Form 1153, Claim for
Unpaid Compensation of Deceased Civilian Employee.
(b) Claims involving minors or incompetents. If a guardian or
committee has been appointed for a minor or incompetent appearing
entitled to unpaid compensation, the claim should be supported by a
certificate of the court showing the appointment and qualification of
the claimant in such capacity. If no guardian or committee has been or
will be appointed, the initial claim should be supported by a statement
showing:
(1) Claimant's relationship to the minor or incompetent, if any;
(2) The name and address of the person having care and custody of
the minor or incompetent;
(3) That any moneys received will be applied to the use and benefit
of the minor or incompetent; and
(4) That the appointment of a guardian or committee is not
contemplated.
Sec. 178.206 Return of unnegotiated Government checks.
All unnegotiated United States Government checks drawn to the order
of a decedent representing money due as defined in Sec. 178.202, and in
the possession of the claimant, should be returned to the employing
agency concerned. Claimants should be instructed to return any other
United States Government checks drawn to the order of a decedent, such
as veterans benefits, social security benefits, or Federal tax refunds,
to the agency from which the checks were received, with a request for
further instructions from that agency.
Sec. 178.207 Claims settlement jurisdiction.
(a) District of Columbia and Government corporations. Claims for
unpaid compensation due deceased employees of the government of the
District of Columbia shall be paid by the District of Columbia, and
those of Government corporations or mixed ownership Government
corporations may be paid by the corporations.
(b) Office of Personnel Management. Each agency shall pay
undisputed claims for the compensation due a deceased employee. Except
as provided in paragraph (a) of this section, disputed claims for money
due deceased employees of the Federal Government will be submitted to
the Claims Adjudication Unit, Office of General Counsel, in accordance
with Sec. 178.102. For example:
(1) When doubt exists as to the amount or validity of the claim;
(2) When doubt exists as to the person(s) properly entitled to
payment; or
(3) When the claim involves uncurrent checks. Uncurrent checks are
unnegotiated and/or undelivered checks for money due the decedent which
have not been paid by the end of the fiscal year after the fiscal year
in which the checks were issued. The checks, if available, should
accompany the claims.
(c) Payment of claim. Claims for money due will be paid by the
appropriate agency only after settlement by the Claims Adjudication
Unit occurs.
[[Page 45064]]
Sec. 178.208 Applicability of general procedures.
When not in conflict with this subpart, the provisions of subpart A
of this part relating to procedures applicable to claims generally are
also applicable to the settlement of account of deceased civilian
officers and employees.
[FR Doc. 97-22389 Filed 8-22-97; 8:45 am]
BILLING CODE 6325-01-M