[Federal Register Volume 69, Number 116 (Thursday, June 17, 2004)]
[Proposed Rules]
[Pages 33879-33882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13711]


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CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

40 CFR Part 1620


Administrative Claims Arising Under the Federal Tort Claims Act

AGENCY: Chemical Safety and Hazard Investigation Board.

ACTION: Proposed rule.

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SUMMARY: The Chemical Safety and Hazard Investigation Board (CSB) 
proposes the adoption of the following regulations that are intended to 
aid the processing of administrative claims for monetary damages filed 
under the Federal Tort Claims Act (FTCA). This proposed rule provides 
information to members of the public who suffer loss or damage of 
property, personal injury, death, or other damages allegedly caused by 
the negligence or other wrongful act or omission of CSB officers or 
employees while acting in the scope of their office or employment. The 
proposed rule also governs the procedures by which such claims are 
administratively processed.

DATES: Written comments must be received on or before August 16, 2004.

ADDRESSES: Address all written comments concerning this proposed rule 
to Christopher M. Lyon, CSB Office of General Counsel, Chemical Safety 
and Hazard Investigation Board, 2175 K Street, NW., Suite 650, 
Washington DC 20037.

FOR FURTHER INFORMATION CONTACT: Christopher M. Lyon, CSB Office of 
General Counsel, (202) 261-7600.

SUPPLEMENTARY INFORMATION: The Federal Tort Claims Act (FTCA), 28 
U.S.C. 1346(b), 2401(b), 2671-2680, waives the Federal government's 
sovereign immunity to civil suits for damages in certain instances 
arising out of the negligent or otherwise wrongful acts or omissions 
committed by Federal employees while acting within the scope of their 
employment. General regulations issued by the U.S. Department of 
Justice for processing FTCA claims, found at 28 CFR 14.11, authorize 
federal agencies to issue supplementing regulations. Accordingly, the 
CSB prepared this proposed rule in order to inform the public about the 
CSB's method of accepting and processing claims arising under the FTCA 
filed against the agency. Such a rule will provide the public with 
needed guidance in presenting a tort claim against the CSB, while also 
ensuring that the agency has established procedures to receive, 
investigate and adjudicate such claims. The CSB invites comments from 
interested members of the public on these proposed regulations.

Regulatory Impact

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that 
a rule that has a significant economic impact on a substantial number 
of small entities, small businesses, or small organizations must 
include an initial regulatory flexibility analysis describing the 
regulation's impact on such small entities. This analysis need not be 
undertaken if the agency has certified that the regulation will not 
have a significant economic impact on a substantial number of small 
entities. 5 U.S.C. 605(b). The CSB has considered the impact of this 
proposed rule under the Regulatory Flexibility Act. The CSB's General 
Counsel, Christopher W. Warner, certifies that this final rule will not 
have a significant economic impact on a substantial number of small 
business entities.

Paperwork Reduction Act

    This proposed rule does not contain any information collection 
requirements that require the approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

Unfunded Mandates Reform Act of 1995

    This proposed rule does not require the preparation of an 
assessment statement in accordance with the Unfunded Mandates Reform 
Act of 1995, 2 U.S.C. 1531. This rule does not include a Federal 
mandate that may result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation) in any one year.

List of Subjects in 40 CFR Part 1620

    Claims, Administrative practice and procedure.

    Dated: June 10, 2004.
Raymond C. Porfiri,
Deputy General Counsel.

    Accordingly, for the reasons set forth in the preamble, the 
Chemical Safety and Hazard Investigation Board proposes to add a new 40 
CFR part 1620 to read as follows:

[[Page 33880]]

PART 1620--ADMINISTRATIVE CLAIMS ARISING UNDER THE FEDERAL TORT 
CLAIMS ACT

Sec.
1620.1 Purpose and scope of regulations.
1620.2 Administrative claim; when presented.
1620.3 Administrative claim; who may file.
1620.4 Investigations.
1620.5 Administrative claim; evidence and information to be 
submitted.
1620.6 Authority to adjust, determine, compromise and settle.
1620.7 Limitations on authority.
1620.8 Referral to Department of Justice.
1620.9 Final denial of claim.
1620.10 Action on approved claim.

    Authority: 28 U.S.C. 2672; 42 U.S.C. 7412(r)(6)(N); 28 CFR 
14.11.


Sec.  1620.1  Purpose and scope of regulations.

    The regulations in this part apply only to administrative claims 
presented or filed with the Chemical Safety and Hazard Investigation 
Board (CSB), under the Federal Tort Claims Act (FTCA), 28 U.S.C. 
1346(b), 2401(b), 2671-2680, as amended, for money damages against the 
United States for damage to or loss of property, personal injury, 
death, or other damages caused by the negligent or wrongful act or 
omission of an officer or employee of CSB while acting within the scope 
of his or her office or employment, but only under circumstances where 
the United States, if a private person, would be liable to the claimant 
in accordance with the law of the place where the act or omission 
occurred.


Sec.  1620.2  Administrative claim; when presented.

    (a) For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 
2675, a claim is deemed to have been presented when the CSB receives 
from a claimant, and/or his or her authorized agent, attorney, or other 
legal representative, an executed Standard Form 95 (Claim for Damage, 
Injury or Death), or other written notification of an incident, 
accompanied by a claim for money damages stating a sum certain (a 
specific dollar amount) for specified damage to or loss of property, 
personal injury, death, or other compensable damages alleged to have 
occurred as a result of the incident. A claimant must present a claim 
within 2 years of the date of accrual of the claim. The date of accrual 
generally is determined to be the time of death, injury, or other 
alleged damages, or if the alleged damages are not immediately 
apparent, when the claimant discovered (or reasonably should have 
discovered) the alleged damages and its cause, though the actual date 
of accrual will always depend on the facts of each case. Claimants 
should be advised that mailing a claim by the 2-year time limit is not 
sufficient if the CSB does not receive the claim through the mail by 
that date. Additionally, claimants should be advised that a claim is 
not considered presented by the CSB until the CSB receives all 
information requested in this paragraph. Incomplete claims will be 
returned to the claimant.
    (b) All claims filed under the FTCA as a result of the alleged 
negligence or wrongful act or omission of the CSB or its employees must 
be mailed or delivered to the Office of the General Counsel, 2175 K 
Street NW., Suite 650, Washington, DC 20037.
    (c) The FTCA requires that a claim must be presented to the Federal 
agency whose activities gave rise to the claim. A claim that should 
have been presented to CSB, but was mistakenly addressed to or filed 
with another Federal agency, is presented to the CSB, as required by 28 
U.S.C. 2401(b), as of the date the claim is received by the CSB. When a 
claim is mistakenly presented to the CSB, the CSB will transfer the 
claim to the appropriate Federal agency, if ascertainable, and advise 
the claimant of the transfer, or return the claim to the claimant if 
the appropriate Federal agency cannot be determined.
    (d) A claimant whose claim arises from an incident involving the 
CSB and one or more other Federal agencies will identify each agency to 
which the claim has been submitted at the time the claim is presented 
to the CSB. The CSB will contact all other affected Federal agencies in 
order to designate a single agency that will investigate and decide the 
merits of the claim. In the event a designation cannot be agreed upon 
by the affected agencies, the Department of Justice will be consulted 
and that agency will designate a specific agency to investigate and 
determine the merits of the claim. The designated agency will then 
notify the claimant that all future correspondence concerning the claim 
must be directed to the designated Federal agency. All involved Federal 
agencies may agree to conduct their own administrative reviews and to 
coordinate the results, or to have the investigation conducted solely 
by the designated Federal agency. However, in any event, the designated 
agency will be responsible for the final determination of the claim.
    (e) A claim presented in compliance with paragraph (a) of this 
section may be amended by the claimant at any time prior to final 
agency action or prior to the exercise of the claimant's option under 
28 U.S.C. 2675(a). Amendments must be in writing and signed by the 
claimant or his or her authorized agent, attorney, or other legal 
representative. Upon the timely filing of an amendment to a pending 
claim, the CSB will have an additional 6 months in which to investigate 
the claim and to make a final disposition of the claim as amended. A 
claimant's option under 28 U.S.C. 2675(a) will not accrue until 6 
months after the filing of an amendment.


Sec.  1620.3  Administrative claim; who may file.

    (a) A claim for damage to or loss of property may be presented by 
the owner of the property, or his or her authorized agent, attorney, or 
other legal representative.
    (b) A claim for personal injury may be presented by the injured 
person, or his or her authorized agent, attorney or other legal 
representative.
    (c) A claim based on death may be presented by the executor or 
administrator of the decedent's estate, or by any other person legally 
entitled to assert a claim under the applicable State law, provided 
that the basis for the representation is documented in writing.
    (d) A claim for loss totally compensated by an insurer with the 
rights to subrogate may be presented by the insurer. A claim for loss 
partially compensated by an insurer with the rights to subrogate may be 
presented by the insurer or the insured individually as their 
respective interests appear, or jointly. When an insurer presents a 
claim asserting the rights to subrogate the insurer must present 
appropriate evidence that it has the rights to subrogate.
    (e) A claim presented by an agent or legal representative must be 
presented in the name of the claimant, be signed by the agent, 
attorney, or other legal representative, show the title or legal 
capacity of the person signing, and be accompanied by evidence of his 
or her authority to present a claim on behalf of the claimant as agent, 
attorney, executor, administrator, parent, guardian, conservator, or 
other legal representative.


Sec.  1620.4  Investigations.

    CSB may investigate, or may request any other Federal agency to 
investigate, a claim filed under this part.


Sec.  1620.5  Administrative claim; evidence and information to be 
submitted.

    (a) Death. In support of a claim based on death, the claimant may 
be required to submit the following evidence or information:
    (1) An authenticated death certificate or other competent evidence 
showing

[[Page 33881]]

cause of death, date of death, and age of the decedent.
    (2) Decedent's employment or occupation at time of death, including 
his or her monthly or yearly salary or earnings (if any), and the 
duration of his or her last employment or occupation.
    (3) Full names, addresses, birth date, kinship and marital status 
of the decedent's survivors, including identification of those 
survivors who were dependent on support provided by the decedent at the 
time of death.
    (4) Degree of support afforded by the decedent to each survivor 
dependent on him or her for support at the time of death.
    (5) Decedent's general physical and mental condition before death.
    (6) Itemized bills for medical and burial expenses incurred by 
reason of the incident causing death, or itemized receipts of payment 
for such expenses.
    (7) If damages for pain and suffering before death are claimed, a 
physician's detailed statement specifying the injuries suffered, 
duration of pain and suffering, any drugs administered for pain, and 
the decedent's physical condition in the interval between injuries and 
death.
    (8) True and correct copies of relevant medical treatment records, 
laboratory and other tests, including X-Rays, MRI, CT scans and other 
objective evidence of medical evaluation and diagnosis, treatment of 
injury/illness, and prognosis, if any had been made.
    (9) Any other evidence or information that may have a bearing on 
either the responsibility of the United States for the death or the 
amount of damages claimed.
    (b) Personal injury. In support of a claim for personal injury, 
including pain and suffering, the claimant may be required to submit 
the following evidence or information:
    (1) A written report by the attending physician or dentist setting 
forth the nature and extent of the injury, nature and extent of 
treatment, any degree of temporary or permanent disability, the 
prognosis, period of hospitalization, and any diminished earning 
capacity. If damages for pain and suffering are claimed, a physician's 
detailed statement specifying the duration of pain and suffering, a 
listing of drugs administered for pain, and the claimant's general 
physical condition.
    (2) True and correct copies of relevant medical treatment records, 
laboratory and other tests including, X-Rays, MRI, CT scans and other 
objective evidence of medical evaluation and diagnosis, treatment 
injury/illness and prognosis.
    (3) The claimant may be required to submit to a physical or mental 
examination by a physician employed by CSB or another Federal agency. 
On written request, CSB will make available to the claimant a copy of 
the report of the examining physician employed by the United States, 
provided the claimant has furnished CSB with the information noted in 
paragraphs (b)(1) and (b)(2) of this section. In addition, the claimant 
must have made or agrees to make available to CSB all other physicians' 
reports previously or thereafter made of the physical or mental 
condition that is subject matter of his or her claim.
    (4) Itemized bills for medical, dental, and hospital expenses 
incurred, and/or itemized receipts of payment for such expenses.
    (5) If the prognosis reveals the necessity for future treatment, a 
statement of the expected treatment and the expected expense for such 
treatment.
    (6) If a claim is made for loss of time from employment, a written 
statement from his or her employer showing actual time lost from 
employment, whether he or she is a full-time or part-time employee, and 
wages or salary actually lost.
    (7) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amount of earnings actually 
lost.
    (8) Any other evidence or information that may have a bearing on 
either the responsibility of the United States for the personal injury 
or the damages claimed.
    (c) Property damage. In support of a claim for damage to or loss of 
property, real or personal, the claimant may be required to submit the 
following evidence or information:
    (1) Proof of ownership of the property.
    (2) A detailed statement of the amount claimed with respect to each 
item of property.
    (3) An itemized receipt of payment for necessary repairs or 
itemized written estimates of the cost of such repairs.
    (4) A statement listing date of purchase, purchase price, and 
salvage value.
    (5) Photographs or video footage documenting the damage, including 
photographs showing the condition of the property at issue both before 
and after the alleged negligence or wrongful act or omission.
    (6) Any other evidence or information that may have a bearing on 
either the responsibility of the United States for the damage to or 
loss of property or the damages claimed.


Sec.  1620.6  Authority to adjust, determine, compromise and settle.

    The General Counsel of CSB, or his or her designee, is delegated 
authority to consider, ascertain, adjust, determine, compromise and 
settle claims under the provision of 28 U.S.C. 2672, and this part. The 
General Counsel, in his or her discretion, has the authority to further 
delegate the responsibility for adjudicating, considering, adjusting, 
compromising and settling any claim submitted under the provision of 28 
U.S.C. 2672, and this part, that is based on the alleged negligence or 
wrongful act or omission of a CSB employee acting in the scope of their 
employment. However, in any case, any offer of compromise or settlement 
in excess of $5,000 exercised by the CSB Chairperson or any other 
lawful designee can only be made after a legal review is conducted by 
an attorney within the CSB Office of General Counsel.


Sec.  1620.7  Limitations on authority.

    (a) An award, compromise, or settlement of a claim under 28 U.S.C. 
2672, and this part, in excess of $25,000 can be made only with the 
prior written approval of the CSB General Counsel and Chairperson, 
after consultation and approval by the Department of Justice. For 
purposes of this paragraph a principal claim and any derivative or 
subrogated claim will be treated as a single claim.
    (b) An administrative claim may be adjusted, determined, 
compromised or settled under this part, only after consultation with 
the Department of Justice when, in the opinion of the General Counsel 
of CSB, or his or her designee:
    (1) A new precedent or a new point of law is involved; or
    (2) A question of policy is or may be involved; or
    (3) The United States is or may be entitled to indemnity or 
contribution from a third party and CSB is unable to adjust the third 
party claim; or
    (4) The compromise of a particular claim, as a practical matter, 
will or may control the disposition of a related claim in which the 
amount to be paid may exceed $25,000.
    (c) An administrative claim may be adjusted, determined, 
compromised or settled under 28 U.S.C. 2672 and this part, only after 
consultation with the Department of Justice when CSB is informed or is 
otherwise aware that the United States or an employee, agent or 
contractor of the United States is involved in litigation based on a 
claim arising out of the same incident or transaction.

[[Page 33882]]

Sec.  1620.8  Referral to Department of Justice.

    When Department of Justice approval or consultation is required, or 
the advice of the Department of Justice is otherwise to be requested, 
under this regulation, the written referral or request will be 
transmitted to the Department of Justice by the General Counsel of CSB, 
or his or her designee.


Sec.  1620.9  Final denial of claim.

    Final denial of an administrative claim must be in writing and sent 
to the claimant, his or her agent, attorney, or other legal 
representative by certified or registered mail. The notification of 
final denial may include a statement of the reasons for the denial. 
However, it must include a statement that, if the claimant is 
dissatisfied with the CSB action, he or she may file suit in an 
appropriate United States District Court not later than 6 months after 
the date of mailing of the notifications, along with the admonition 
that failure to file within this 6 month timeframe could result in the 
suit being time-barred by the controlling statute of limitations. In 
the event that a claimant does not hear from the CSB after 6 months 
have passed from the date that the claim was presented, a claimant 
should consider the claim denied and, if desired, should proceed with 
filing a civil action in the appropriate U.S. District Court.


Sec.  1620.10  Action on approved claim.

    (a) Payment of a claim approved under this part is contingent on 
claimant's execution of a Standard Form 95 (Claim for Damage, Injury or 
Death); a claims settlement agreement; and a Standard Form 1145 
(Voucher for Payment), as well as any other forms as may be required. 
When a claimant is represented by an attorney, the Voucher for Payment 
will designate both the claimant and his or her attorney as payees, and 
the check will be delivered to the attorney, whose address is to appear 
on the Voucher for payment.
    (b) Acceptance by the claimant, his or her agent, attorney, or 
legal representative, of an award, compromise or settlement made under 
28 U.S.C. 2672 or 28 U.S.C. 2677 is final and conclusive on the 
claimant, his or her agent, attorney, or legal representative, and any 
other person on whose behalf or for whose benefit the claim has been 
presented, and constitutes a complete release of any and all claims 
against the United States and against any employee of the Federal 
Government whose act(s) or omission(s) gave rise to the claim, by 
reason of the same subject matter. To that end, as noted above, the 
claimant, as well as any agent, attorney or other legal representative 
that represented the claimant during any phase of the process (if 
applicable) must execute a settlement agreement with the CSB prior to 
payment of any funds.

[FR Doc. 04-13711 Filed 6-16-04; 8:45 am]
BILLING CODE 6350-01-P