[Federal Register Volume 62, Number 250 (Wednesday, December 31, 1997)]
[Rules and Regulations]
[Pages 68139-68142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33928]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
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Federal Register / Vol. 62, No. 250 / Wednesday, December 31, 1997 /
Rules and Regulations
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 178
RIN 3206-AH89
Procedures for Settling Claims
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
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.
EFFECTIVE DATE: January 30, 1998.
FOR FURTHER INFORMATION CONTACT: Paul Britner, Senior Attorney, (202)
606-2233, Claims Adjudication Unit, Office of the General Counsel, Room
7537, Office of Personnel Management, 1900 E Street NW., Washington, DC
20415.
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 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
proposed rules were published in the Federal Register on August 25,
1997. The deadline for receiving comments has passed and no comments
regarding the proposed rules have been received. The final procedures
contain no changes from the proposed procedures and are substantially
similar to the procedures formerly used by GAO, which are found at 4
CFR parts 31, 32 and 33.
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.
Paperwork Reduction Act
The information collection requirements contained in this rule have
been approved by the Office of Management and Budget (OMB) in
accordance with the Paperwork Reduction Act of 1995 (42 U.S.C. 3501-
3530), and assigned OMB control number 3206-0232. An agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless the collection displays a valid
control number.
Executive Order 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.
List of Subjects in 5 CFR Part 178
Administrative practice and procedure, Claims, Compensation,
Government employees.
U.S. Office of Personnel Management.
Janice R. Lachance,
Director.
Accordingly, OPM is amending 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.
678.103 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 claim settlements.
Subpart B--Settlement of Accounts for Deceased Civilian Officers and
Employees
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. No. 104-53, 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
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apply to claims under the Fair Labor Standards Act (FLSA). Procedures
for FLSA claims are set out in part 551 of this chapter.
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. 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;
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(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 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
persons as beneficiary. The term person 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 of subpart A. 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.
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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. 97-33928 Filed 12-30-97; 8:45 am]
BILLING CODE 6325-01-P