[Federal Register Volume 69, Number 55 (Monday, March 22, 2004)]
[Rules and Regulations]
[Pages 13256-13259]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6045]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Part 34


Filing Claims Under the Military Personnel and Civilian Employees 
Claims Act

AGENCY: Department of Health and Human Services.

ACTION: Final rule.

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SUMMARY: The Department of Health and Human Services (HHS) is 
establishing a new regulation that would prescribe the procedures HHS 
follows when claims are filed by employees against HHS for personal 
property damage or loss incident to their service with HHS. This new 
regulation is in accordance with, and pursuant to, the Military 
Personnel and Civilian Employees Claims (MPCE) Act of 1964 (31 U.S.C. 
3721), authorizing the head of each Federal agency to prescribe its own 
regulations for handling such claims.

EFFECTIVE DATE: March 22, 2004.

FOR FURTHER INFORMATION CONTACT: Katherine M. Drews, Associate General 
Counsel, General Law Division, Office of the General Counsel, (202) 
619-0150.

SUPPLEMENTARY INFORMATION: 

Background

    This final rule implements the MPCE Act codified at section 3721 of 
title 31 of the United States Code. The MPCE Act establishes 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 MPCE Act, the Secretary may approve claims 
made against the Government by a federal government employee for damage 
or loss of personal property that is incident to employment if the loss 
was not due to a negligent or wrongful act of the claimant. Therefore, 
HHS adds a new regulation to implement to the MPCE Act. Prior guidance 
in the Department's General Administration Manual is hereby superseded.

Executive Order 12866

    This rulemaking is limited to internal agency management and 
policy, and therefore is not a regulation or rule as defined by 
Executive Order 12866. It has also has also been determined that this 
rulemaking is not a significant regulatory action for purposes of 
Executive Order 12866. Accordingly, a regulatory impact analysis is not 
required.

Regulatory Flexibility Act

    This rule relates to internal agency management and policy, and 
therefore, it is not subject to Executive Order 12291. Because no 
notice of proposed rulemaking is required for this final rule, it is 
not subject to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Civil Justice Reform

    This rule meets the applicable standards set forth in section 3(a) 
and (b)(2) of the Executive Order 12988.

Unfunded Mandates Reform Act

    This rule will not result in the expenditure by state, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Act, 5 U.S.C. 804. This rule will 
not result in an annual effect on the economy of $100 million or more; 
a major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United Sates-based companies to compete with foreign-
based companies in domestic or export markets.

Federalism

    This rule will not have a substantial direct effect on the states, 
on the relationship between the National Government and the states, or 
on the distribution of power and responsibilities among various levels 
of government. Therefore, in accordance with Executive Order 13132, it 
is determined that this rule does not have

[[Page 13257]]

sufficient federalism implications to warrant the preparation of 
federalism assessment.

Paperwork Reduction Act

    This final rule would not impose any new reporting or recordkeeping 
requirements under the Paper Reduction Act, 44 U.S.C. chapter 35.

Analysis of and Responses to Public Comments

    No public comments were received.

List of Subjects in 45 CFR Part 34

    Administrative practices and procedures, Claims, Appeals and 
Settlements.


0
For the reasons set forth in the preamble, HHS adds 45 CFR part 34 to 
read as follows:

PART 34--CLAIMS FILED UNDER THE MILITARY PERSONNEL AND CIVILIAN 
EMPLOYEES ACT

Sec.
34.1 Purpose and scope.
34.2 Definitions.
34.3 Filing procedures and time limits.
34.4 Allowable claims.
34.5 Unallowable claims.
34.6 Reconsideration or appeal.
34.7 Payment procedures.
34.8 Computation of award and settlement.
34.9 Claims involving carriers or insurers.

    Authority: 31 U.S.C. 3721.


Sec.  34.1  Purpose and scope.

    (a) Purpose. This part prescribes polices and procedures for 
handling claims not in excess of $40,000.00 filed by employees against 
the Department of Health and Human Services under the Military 
Personnel and Civilian Employees Claims (MPCE) Act of 1964, 31 U.S.C. 
3721, for damage to, or loss of, property against the Department. Under 
the MPCE Act, the Secretary may approve claims made against the 
Government by a federal government employee for damage to or loss of 
personal property that is incident to employment when the loss or 
damage is not due to any negligence on the part of employee.
    (b) Scope. This part applies to all Departmental Operating 
Divisions and Regional Offices that process and review claims under the 
MPCE Act. Nothing in this part shall be construed to bar other types of 
claims that are payable under other statutory authority such as, but 
not limited to, the Federal Tort Claims Act (28 U.S.C. 2671-2680).


Sec.  34.2  Definitions.

    In this part, unless the context otherwise requires:
    Claim means any claim filed by or on behalf of an employee for 
damage to, or loss of, property that is incident to the claimant's 
employment. This definition includes claims where the claimant is not 
the legal owner of the property in question, but has obtained 
authorization from the legal owner to posses or control the property.
    Claimant means an employee who has filed a claim with the 
Department under the MPCE Act.
    Damage or loss means total or partial destruction or loss of the 
item claimed.
    Department means the Department of Health and Human Services.
    Employee means an officer or employee of the Department.
    Quarters means a house, apartment or other residence assigned by 
the government to an employee of the Department.


Sec.  34.3  Filing procedures and time limits.

    (a) Who may file a claim. A claim may be filed by the following 
individuals:
    (1) An employee;
    (2) An authorized agent or representative of an employee or 
employee's estate, regardless of whether the claim arose before or 
concurrent with an employee's death; and
    (3) A former employee or his authorized agent or representative if 
damage or loss occurred prior to the separation from the Department.
    (b) Requirements. A claim submitted under this part must be 
presented in writing to the Claims Officer (See paragraph (c) of this 
section). Claims may be submitted on a HHS-481 form, Employee Claim for 
Loss or Damage to Personal Property. All claims must be signed by the 
claimant or his authorized agent or representative. The HHS-Form can be 
obtained from the Claims Officer or downloaded from the Program Support 
Center's webpage at www.psc.gov. All claims must include the following:
    (1) Name and address of the claimant;
    (2) The office in which the claimant was employed at the time of 
loss, current office, if different, and telephone number;
    (3) Date of loss or damage;
    (4) Amount of claim;
    (5) Description of the property, including but not limited to type, 
design, model number, date acquired, value when acquired, value when 
lost, and estimation of repair or replacement cost;
    (6) Description of incident; and
    (7) If property was insured when loss or damage occurred, a 
statement indicating whether a claim was filed with an insurance 
carrier.
    (c) Where to file your claim. (1) Claimants employed with the 
Regional Offices should submit claims to the Chief Regional Counsel, 
Office of the General Counsel, within the claimant's Region.
    (2) All other claimants must submit claims to the Office of the 
General Counsel, General Law Division, Claims and Employment Law 
Branch, 330 Independence Ave., SW., Room 4760, Cohen Building, 
Washington, DC 20201.
    (d) Evidence required. You must submit the following:
    (1) Not less than two itemized signed estimates for the cost of 
repairs, or an itemized bill of repair for the damaged property;
    (2) In the event the property is not economically repairable or is 
totally lost or destroyed, proof of this fact, its market value before 
or after loss, purchase price, and date of acquisition of the property;
    (3) Proof of ownership or right to recover for the damage such as a 
receipt;
    (4) Police/incident report;
    (5) If property is insured, insurance information, such as 
insurance carrier, type of coverage, deductible, and whether claim has 
been filed and/or paid;
    (6) Travel orders, if applicable;
    (7) Any citations or traffic tickets, if applicable; and
    (8) Any other evidence required by the claims officer not specified 
above.
    (e) Time limit.
    (1) A claim filed under this section must be filed in writing with 
the Department within two years from the date of the incident.
    (2) If the claim accrues in the time of war or in the time of armed 
conflict in which any armed forces of the United States are engaged or 
if such a war or armed conflict occurs within two years after the claim 
accrues, and if good cause is shown, the claim shall be presented no 
more than two years after that cause ceases to exist, or two years 
after the war or armed conflict is terminated, whichever is earlier.
    (3) All required evidence in support of a claim submitted under 
this section must be forwarded to the claims officer within sixty days 
after request. Failure to do so will be deemed as an abandonment of the 
claim and the claim will be disallowed.


Sec.  34.4  Allowable claims.

    (a) What you can claim.
    (1) Claims for damage or loss may be allowed where possession of 
the property was lawful and reasonable under circumstances.
    (2) Claims for property damage or loss by fire, flood, hurricane, 
theft, or other serious occurrence may be allowed when the property is 
located inside:
    (i) Quarters that have been assigned or provided by the government; 
or

[[Page 13258]]

    (ii) Quarters outside the United States whether assigned by the 
government or not, except when a civilian employee outside the U.S. is 
a local inhabitant.
    (3) Claims for damage to, or loss of, property may be allowed when 
caused by:
    (i) Marine, air disaster, enemy action or threat thereof, or other 
extraordinary risks incurred incident to the performance of official 
duties by the claimant; and
    (ii) Efforts by the claimant to save human life or government 
property.
    (4) Property used for the benefit of the government. Claims may be 
allowed for damage to, or loss of, property used for the benefit of the 
government at the request, or with the knowledge and consent of, 
superior authority.
    (5) Claims for clothing and accessories may be allowed when loss or 
damage was caused by faulty or defective equipment or furnishings owned 
or managed by the Department.
    (6) Claims for stolen property, only if it is determined that the 
claimant exercised due care in protecting his property and there is 
clear evidence that a burglary or theft occurred.
    (7) Claims for automobiles, only when required to perform official 
business or parked on a government-owned or operated parking lot or 
garage incident to employment. This subsection does not include claims 
for damage or loss when traveling between place of residence and duty 
station, or when the loss or damage was caused by the negligence of a 
third party. If the automobile is a total loss, the maximum amount 
allowed is the value of the vehicle at the time of loss as determined 
by the National Automobile Dealer Association Appraisal Guide or 
similar publications.
    (8) Claims for any other meritorious claims in exceptional cases 
may be allowed by the Claims Officer.
    (9) Transportation or travel losses. Damage or loss of personal 
property, including baggage and household items, while being 
transported by a carrier, agent or agency of the government, or private 
conveyance, may be allowed only if the property is shipped under orders 
or in connection with travel orders.


Sec.  34.5  Unallowable claims.

    (a) What you cannot claim.
    (1) Claims for money or currency, such as intangible property (i.e. 
bankbooks, check, money orders, promissory notes, stock certificates, 
etc.).
    (2) Worn-out or unserviceable property.
    (3) Easily pilferable articles, such as jewelry, cameras, watches, 
and binoculars when they are shipped with household goods by a moving 
company or unaccompanied baggage. This does not apply to checked 
property or property in personal custody of the claimant or his agent 
provided proper security measures have been taken.
    (4) Government property.
    (5) Appraisal or estimate fees.
    (6) Automobiles, except when required to perform official business 
or parked on a government-owned or operated parking lot or garage 
incident to employment.
    (7) Loss or damage caused in whole or in part by the negligent or 
wrongful act of the claimant or his agent or employee.
    (8) Claims under $30.00.
    (9) Stolen property when it's determined that claimant failed to 
exercise due care in protecting his or her property.
    (10) Sales Tax. Reimbursements for the payment of sales tax 
incurred in connection with repairs or replacing an item will not be 
allowed.


Sec.  34.6  Reconsideration or appeal.

    (a) Requests for reconsideration or appeal shall be forwarded to 
the Associate General Counsel, General Law Division, Office of the 
General Counsel, within sixty days from the date of the Claims 
Officer's decision along with any new evidence supporting the claim.
    (b) A voucher or a supplemental voucher will be prepared by the 
Claims Officer if it is determined that the claimant's request for 
reconsideration should be allowed.


Sec.  34.7  Payment procedures.

    (a) For all claims that are approved in whole or part, the claims 
officer shall prepare and mail a payment voucher to the claimant.
    (b) This voucher shall be mailed to the claimant with appropriate 
instructions.
    (c) Upon receipt of the signed payment voucher, the claims officer 
shall sign and forward the signed voucher to the office where the 
claimant is or was employed for processing.
    (d) Upon receipt of the signed payment voucher, the office in which 
the claimant is or was employed will submit the voucher for 
transmission to the Treasury Department for issuance of a check in the 
sum allowed.
    (e) Funds paid for settlement of allowed claims shall be made from 
appropriations of the office in which the claimant is or was employed.


Sec.  34.8  Computation of award and settlement.

    (a) The amount awarded on any item of property shall not exceed the 
adjusted cost of the item based on the cost of replacing it with a 
similar one of the same quality minus the appropriate depreciation 
rate. The amount normally payable on property damaged beyond economical 
repair shall not exceed its depreciated value. If the cost of repairs 
is less than the depreciated value it shall be considered economically 
repairable and the costs of repairs shall be the amount payable.
    (b) Depreciation in value of an item shall be determined by 
considering the type of article involved, its replacement cost, 
condition when lost or damaged beyond economical repair, and the time 
elapsed between the date of acquisition and the date of accrual of the 
claim.
    (c) Notwithstanding any other provision of law, settlements of 
claims under the MPCE Act are final and conclusive. The acceptance of a 
settlement constitutes a complete release of any claim against the 
United States and any employee of the government whose act or omission 
gave rise to the claim by reason of the same claim.


Sec.  34.9  Claims involving carriers or insurers.

    (a) Carriers.
    (1) If property is damaged, lost or destroyed while being shipped 
pursuant to authorized travel orders, the owner shall file a written 
claim for reimbursement against the carrier no later than nine months 
from the date of delivery or should have been made according to the 
terms of the contract. It shall be filed before or concurrent with 
submitting a claim against the government under this part.
    (2) The demand shall be made against the responsible carrier if 
more than one contract was issued, a separate demand shall be made 
against the last carrier on each such document, unless claimant knows 
which carrier was in possession of the property when the damage or loss 
occurred.
    (b) Insurers.
    (1) If property which is damaged, lost, or destroyed incident to 
the claimant's service is insured in whole or in part, the claimant 
shall inform the Claims Officer whether a claim was made with the 
insurance carrier.
    (2) The claimant shall inform the claims officer if he or she 
received a reimbursement from the insurance carrier for the item that 
was damaged or lost. The exact amount of the reimbursement must be 
reported.
    (3) If the claimant receives a reimbursement for the lost or 
damaged property from an insurance carrier, the maximum amount that can 
be recovered from the Department is the difference

[[Page 13259]]

between an appropriate award under this regulation and the amount 
recovered from the insurance carrier. The claimant is responsible for 
submitting to the Department documentation that identifies the exact 
amount of the reimbursement.

    Dated: March 11, 2004.
Tommy G. Thompson,
Secretary.
[FR Doc. 04-6045 Filed 3-19-04; 8:45 am]
BILLING CODE 4150-24-P