Retrospective Review Under E.O. 13563: Seamen's Claims; Admiralty Extension Act Claims; and Admiralty Claims, 5217-5226 [2012-2253]
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Federal Register / Vol. 77, No. 22 / Thursday, February 2, 2012 / Proposed Rules
tkelley on DSK3SPTVN1PROD with PROPOSALS
they were stable, adversely affecting the
clinical outcome of those patients. Most
commenters expressed support for the
current policy that EMTALA does not
apply to any inpatient of a hospital,
even a patient who was admitted
through that hospital’s dedicated
emergency department and continues to
be unstable. These commenters referred
to our 2003 EMTALA final rule and
concurred with our assessment that,
under our existing policy, the numerous
hospital CoPs that protect inpatients as
well as inpatients’ rights under State
law afford individuals admitted to a
hospital with sufficient protection.
Moreover, commenters appreciated the
clarity and predictability of a bright line
policy. Commenters also noted that our
current policy regarding inpatients is
achieving Congress’ intent by ensuring
that every individual, regardless of their
ability to pay for emergency services,
should have access to hospital services
provided in hospitals with emergency
departments.
Therefore, in light of the comments
we received regarding the extension of
the EMTALA obligations for hospitals
admitting an individual through their
dedicated emergency departments, we
are not proposing to change the current
EMTALA requirements for these
hospitals. That is, we are maintaining
our current policy that, if an individual
‘‘comes to the [hospital’s] emergency
department,’’ as we have defined that
term in regulation, and the hospital
provides an appropriate medical
screening examination and determines
that an EMC exists, and then admits the
individual in good faith in order to
stabilize the EMC, that hospital has
satisfied its EMTALA obligation
towards that patient. We continue to
believe that this policy is a reasonable
interpretation of the EMTALA statute
and is supported by several Federal
courts that have held that an
individual’s EMTALA protections end
upon admission as a hospital inpatient.
For further explanation, we refer readers
to the 2003 EMTALA final rule (68 FR
53244), in which we finalized the policy
that a hospital’s EMTALA obligations
end upon admission.
B. Applicability of EMTALA to
Hospitals With Specialized Capabilities
The second issue upon which the
ANPRM solicited comment was,
whether EMTALA should apply to
situations where a hospital seeks to
transfer an individual, who was
admitted by that hospital as an inpatient
after coming to the hospital’s dedicated
emergency department with an EMC, to
a hospital with specialized capabilities
because the admitted inpatient
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continues to have an unstabilized EMC
that requires specialized treatment not
available at the admitting hospital.
Under current regulations, if an
individual comes to the hospital’s
dedicated emergency department, is
determined to have an EMC, is admitted
as an inpatient, and continues to have
an unstabilized EMC which requires the
specialized capabilities of another
hospital, the EMTALA obligation for the
admitting hospital has ended and a
hospital with specialized capabilities
also does not have an EMTALA
obligation towards that individual.
Although we received some
comments that supported amending the
current regulations to require hospitals
with specialized capabilities to accept
the appropriate transfer of an inpatient
who had presented to the admitting
hospital under EMTALA and requires
specialized capabilities to stabilize his
or her EMC not available at the
admitting hospital, most comments
supported making no change to the
current policies regarding the
applicability of EMTALA to hospitals
with specialized capabilities.
Therefore, at this time, we are making
no proposals with respect to our
policies regarding the applicability of
EMTALA to hospitals with specialized
capabilities. However, we will continue
to monitor whether it may be
appropriate in the future to reconsider
this issue. Thus, we are providing a 60day comment period to allow the public
to submit data or real world examples
that are relevant to this issue.
III. Response to Comments
Because of the large number of public
comments we normally receive on
Federal Register documents, we are not
able to acknowledge or respond to them
individually. We will consider all
comments we receive by the date and
time specified in the DATES section of
this preamble. If we proceed to issue a
subsequent document on the issues
raised therein, we will respond to those
comments in the preamble to that
document.
(Catalog of Federal Domestic Assistance
Program No. 93.773, Medicare—Hospital
Insurance; and Program No. 93.774)
Dated: January 9, 2012.
Marilyn Tavenner,
Acting Administrator, Centers for Medicare
& Medicaid Services.
Approved: January 26, 2012.
Kathleen Sebelius,
Secretary, Department of Health and Human
Services.
[FR Doc. 2012–2287 Filed 1–31–12; 4:15 pm]
BILLING CODE 4120–01–P
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DEPARTMENT OF TRANSPORTATION
Maritime Administration
46 CFR Part 327
[Docket No. MARAD 2012–0005]
RIN 2133–AB79
Retrospective Review Under E.O.
13563: Seamen’s Claims; Admiralty
Extension Act Claims; and Admiralty
Claims
Maritime Administration,
Department of Transportation.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
In accordance with Executive
Order 13563, ‘‘Improving Regulation
and Regulatory Review,’’ the Maritime
Administration (MarAd) is evaluating
the continued validity of its rules and
determining whether they effectively
address current issues. As part of this
review, MarAd is soliciting public
comment concerning clarification of its
regulations pertaining to seamen’s
claims, administrative action taken
against MarAd, and litigation pertaining
to such matters. Specifically, MarAd
proposes to update and modernize the
existing regulations and to adopt a
procedural process to more effectively
address claims arising under the Suits
in Admiralty Act, the Admiralty
Extension Act and the Clarification Act.
The revised regulations implement the
Clarification Act and implement a
process to resolve administrative claims
arising under the Admiralty Extension
Act, and both the Suits in Admiralty Act
and the Public Vessels Act, respectively.
MarAd will consider the comments it
receives and determine whether any
changes should be made to the proposed
regulation.
DATES: Written comments are requested,
and must be received on or before May
2, 2012.
ADDRESSES: You may submit comments
[identified by Docket Number MARAD–
2012–0005] by any of the following
methods:
• Fax: 1–202–493–2251.
• Mail: Docket Management Facility;
U.S. Department of Transportation, 1200
New Jersey Avenue SE., Room W12–
140, Washington, DC 20590–0001.
• Hand Delivery or Courier: Room
W12–140 on the plaza level of the U.S.
Department of Transportation at 1200
New Jersey Avenue SE., Washington,
DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal
Holidays.
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
SUMMARY:
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Federal Register / Vol. 77, No. 22 / Thursday, February 2, 2012 / Proposed Rules
online instructions for submitting
comments.
To avoid duplication, please use only
one of these four methods. See the
‘‘Public Participation’’ portion of the
SUPPLEMENTARY INFORMATION section
below for instructions on submitting
comments, including collection of
information comments, if any for the
Office of Information and Regulatory
Affairs (OIRA), OMB. All comments
received will be posted without change
to https://www.regulations.gov including
any personal information provided.
FOR FURTHER INFORMATION CONTACT: You
may contact Jay Gordon, Assistant Chief
Counsel for Litigation and General Law,
at (202) 366–5173. You may send mail
to Mr. Gordon at Office of Chief
Counsel, MAR–221, Maritime
Administration, 1200 New Jersey
Avenue SE., Washington, DC 20590–
0001. You may send electronic mail to
jay.gordon@dot.gov.
SUPPLEMENTARY INFORMATION:
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Background
On January 18, 2011, President
Obama issued Executive Order 13563,
which outlined a plan to improve
regulation and regulatory review (76 FR
3821, 1/21/11). Executive Order 13563
reaffirms and builds upon governing
principles of contemporary regulatory
review, including Executive Order
12866, ‘‘Regulatory Planning and
Review,’’ (58 FR 51735, 10/4/1993), by
requiring Federal agencies to design
cost-effective, evidence-based
regulations that are compatible with
economic growth, job creation, and
competitiveness. The President’s plan
recognizes that these principles should
not only guide the Federal government’s
approach to new regulations, but to
existing ones as well. To that end,
Executive Order 13563 requires agencies
to review existing significant rules to
determine if they are outmoded,
ineffective, insufficient, or excessively
burdensome.
Accordingly, the Maritime
Administration is soliciting public
comment concerning amendment of its
administrative claims governing
seaman’s administrative actions and
claim litigation. 46 CFR part 327
prescribes rules and regulations
pertaining to the filing of admiralty
claims and the administrative allowance
or disallowance (actual or presumed) of
such claims, in whole or in part. The
existing Part 327 addresses only
Seamen’s Claims. This NPRM divides
Part 327 into three sections, all of which
are related to admiralty claims. Subpart
I addresses Seamen’s Claims governed
by the Clarification Act, 50 U.S.C.
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1291(a). Subpart II addresses claims
filed under the Admiralty Extension
Act, 46 U.S.C. 30101, a statutory
provision which extends the admiralty
and maritime jurisdiction of the United
States to cases of injury or damage to a
person or property caused by a vessel on
navigable waters, even though the injury
or damage is done or consummated on
land. Subpart III establishes a procedure
for filing administrative claims for all
admiralty claims not covered by
Subparts A or B, or the Contracts
Disputes Act (41 U.S.C. 601 et seq.).
The filing of proper administrative
claims under Sections I and II must take
place before filing suit against the
United States. For example, under the
Clarification Act, before suit can be filed
against the United States, there must be
a denial of an administrative claim filed
by officers and members of crews
injured aboard MarAd vessels. Before
suit can be filed against the United
States under the Admiralty Extension
Act, there must be an administrative
denial of a claim filed under that Act.
The new Subpart C establishes an
optional procedure whereby anyone
having an admiralty claim not covered
by either Subparts A, B or under the
Contracts Disputes Act can file an
administrative claim with MarAd.
Subpart A of Part 327 has also been
updated to include technical changes
such as MarAd’s new address at 1200
New Jersey Avenue and to include
corrections to statutory references, some
of which were made obsolete as the
result of the codification of the
Appendix to title 46 of the United States
Code. In addition to these technical
changes, MarAd proposes to modernize
the regulation by allowing the use of
pictures and video recordings as
evidence in administrative actions and
litigation. The current regulations do
not provide for the use of such
evidence. The new regulation also
requires that the seamen filing claims
sign the claims and verify that they are
correct.
Subpart B sets out specific details
concerning compliance with the
administrative claim requirement of the
Admiralty Extension Act, 46 U.S.C.
30301(c)(2), with respect to filing suit
against the United States. Under this
provision, no civil suit can be filed
against the United States ‘‘until the
expiration of the 6-month period after
the claim has been presented in writing
to the agency owning or operating the
vessel causing the injury or damage.’’
Subpart C provides a means whereby
an administrative claim can be filed
with respect to any other admiralty
matters not addressed in Subparts A and
B or in the Contracts Disputes Act (41
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U.S.C. 601 et seq.). This will provide a
means to address administratively
admiralty claims made by other persons
or legal entities such as longshoremen
and harbor workers, contractors,
invitees injured aboard vessels, and the
owners of damaged vessels filing claims
governed by the Suits in Admiralty Act
(46 U.S.C. 30901 et seq.) and the Public
Vessels Act (46 U.S.C.A. 31101 et seq.).
As Executive Order 13563 reaffirms,
the regulatory process must be
transparent and provide opportunities
for public participation. MarAd
particularly believes that the review of
its administrative claims regulations
will be more meaningful if there is input
from those affected by those regulations.
It is suggested that comments address
how MarAd can better provide for the
efficient and appropriate administration
and resolution of administrative claims
arising under the Clarification Act, the
Admiralty Extension Act, the Suits in
Admiralty Act and the Public Vessels
Act.
Public Participation
Your comments must be written and
in English. To ensure that your
comments are correctly filed in the
Docket, please include the docket
number of this document in your
comments. MarAd encourages you to
provide concise comments. However,
you may attach necessary additional
documents to your comments. There is
no limit on the length of the
attachments. Please submit your
comments, including the attachments,
to addresses given above under
ADDRESSES.
If you wish to submit any information
under a claim of confidentiality, you
should submit three copies of your
complete submission, including the
information you claim to be confidential
business information, to the Chief
Counsel, Maritime Administration, at
the address given above under FOR
FURTHER INFORMATION CONTACT. When
you send comments containing
information claimed to be confidential
information, you should include a cover
letter setting forth with specificity the
basis for any such claim.
MarAd will consider all comments
received before the close of business on
the comment closing date indicated
above under DATES. To the extent
possible, MarAd will also consider
comments received after that date. If a
comment is received too late for MarAd
to consider in developing a final rule
(assuming that one is issued), MarAd
will consider that comment as an
informal suggestion for future
rulemaking action.
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Federal Register / Vol. 77, No. 22 / Thursday, February 2, 2012 / Proposed Rules
For access to the docket to read
background documents, including those
referenced in this document, or to
submit or read comments received, go to
the DOT Docket Center located on the
ground floor, room W12–140, U.S.
Department of Transportation’s
Building, 1200 New Jersey Avenue SE.,
Washington, DC 20590–0001 between
the hours of 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
To review documents, read comments
or to submit comments, the docket is
also available online at https://
www.regulations.gov., keyword search
MARAD 2011–XXXX.
Please note that even after the
comment period has closed, MarAd will
continue to file relevant information in
the Docket as it becomes available.
Further, some people may submit late
comments. Accordingly, MarAd
recommends that you periodically
check the Docket for new material.
Privacy Act
Anyone is able to search the
electronic form of all comments
received into any of our dockets by the
name of the individual submitting the
comment (or signing the comment, if
submitted on behalf of an association,
business, labor union, etc.). You may
review the DOT Privacy Act system of
records notice for the Federal Docket
Management System (FDMS) in the
Federal Register published on January
17, 2008, (73 FR 3316) at https://
edocket.access.gpo.gov/2008/pdf/E8785.pdf.
Rulemaking Analysis and Notices
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Executive Orders 12866 (Regulatory
Planning and Review), 13563
(Improving Regulation and Regulatory
Review) and DOT Regulatory Policies
and Procedures
Under E.O. 12866 (58 FR 51735,
October 4, 1993), supplemented by
E.O.13563 (76 FR 3821, January 18,
2011) and DOT policies and procedures,
MarAd must determine whether a
regulatory action is ‘‘significant,’’ and
therefore subject to OMB review and the
requirements of the E.O. The Order
defines ‘‘significant regulatory action’’
as one likely to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal government or
communities. (2) Create a serious
inconsistency or otherwise interfere
with an action taken or planned by
another Agency. (3) Materially alter the
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budgetary impact of entitlements,
grants, user fees, or loan programs or the
rights and obligations of recipients
thereof. (4) Raise novel legal or policy
issues arising out of legal mandates, the
President’s priorities, or the principles
set forth in the E.O.
MarAd has determined that this final
rule is not considered a significant
regulatory action under section 3(f) of
Executive Order 12866 and, therefore, it
was not reviewed by the Office of
Management and Budget. This final rule
will not result in an annual effect on the
economy of $100 million or more. It also
is not considered a major rule for
purposes of Congressional review under
Public Law 104–121. The rule is also
not significant under the Regulatory
Policies and Procedures of the
Department of Transportation (44 FR
11034, February 26, 1979). The costs
and overall economic impact of this
rulemaking do not require further
analysis.
Executive Order 13132 (Federalism)
We analyzed this rulemaking in
accordance with the principles and
criteria contained in Executive Order
13132 (‘‘Federalism’’) and have
determined that it does not have
sufficient Federalism implications to
warrant the preparation of a Federalism
summary impact statement. This rule
has no substantial effect on the States,
or on the current Federal-State
relationship, or on the current
distribution of power and
responsibilities among the various local
officials. Nothing in this document
preempts any State law or regulation.
Therefore, MarAd did not consult with
State and local officials because it was
not necessary.
Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
MarAd does not believe that this final
rule will significantly or uniquely affect
the communities of Indian tribal
governments when analyzed under the
principles and criteria contained in
Executive Order 13175 (Consultation
and Coordination with Indian Tribal
Governments). Therefore, the funding
and consultation requirements of this
Executive Order do not apply.
Executive Order 12372
(Intergovernmental Review)
The regulations implementing
Executive Order 12372 regarding
intergovernmental consultation on
Federal programs and activities do not
apply to this rule.
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5219
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
requires MarAd to assess whether this
rule would have a significant economic
impact on a substantial number of small
entities and to minimize any adverse
impact. MarAd certifies that this rule
will not have a significant economic
impact on a substantial number of small
entities.
Environmental Assessment
We have analyzed this final rule for
purposes of compliance with the
National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.) and have
concluded that under the categorical
exclusions provision in section 4.05 of
Maritime Administrative Order (MAO)
600–1, ‘‘Procedures for Considering
Environmental Impacts,’’ 50 FR 11606
(March 22, 1985), neither the
preparation of an Environmental
Assessment, an Environmental Impact
Statement, nor a Finding of No
Significant Impact for this rulemaking is
required. This rulemaking has no
environmental impact.
Executive Order 13211 (Energy Supply,
Distribution, or Use)
MarAd has determined that the
proposed rule would not significantly
affect energy supply, distribution, or
use. Therefore, no Statement of Energy
Effects is required.
Executive Order 13045 (Protection of
Children)
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks, requires
agencies issuing ‘‘economically
significant’’ rules that involve an
environmental health or safety risk that
may disproportionately affect children,
to include an evaluation of the
regulation’s environmental health and
safety effects on children. As discussed
previously, this proposed rule is not
economically significant, and it would
cause no environmental or health risk
that disproportionately affects children.
Executive Order 12988 (Civil Justice
Reform)
This action meets applicable
standards in sections 3(a) and 3(b)(2) of
E.O. 12988, Civil Justice Reform, to
minimize litigation, eliminates
ambiguity, and reduce burden.
Executive Order 12630 (Taking of
Private Property)
This rule would not effect a taking of
private property or otherwise have
taking implications under Executive
Order 12630, Governmental Actions and
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Federal Register / Vol. 77, No. 22 / Thursday, February 2, 2012 / Proposed Rules
Interference with Constitutionally
Protected Property Rights.
National Technology Transfer and
Advancement Act
The National Technology Transfer
and Advancement Act (15 U.S.C. 272
note) requires Federal agencies
proposing to adopt Government
technical standards to consider whether
voluntary consensus standards are
available. If the Agency chooses to
adopt its own standards in place of
existing voluntary consensus standards,
it must explain its decision in a separate
statement to OMB. MarAd determined
that there are no voluntary national
consensus standards related to the filing
of the seamen’s claims, administrative
actions and Admiralty Extension Act
claims addressed by this regulation.
International Trade Impact Assessment
This rule is not expected to contain
standards-related activities that create
unnecessary obstacles to the foreign
commerce of the United States.
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Privacy Impact Assessment
Section 522(a)(5) of the
Transportation, Treasury, Independent
Agencies, and General Government
Appropriations Act, 2005 (Pub. L. 108–
447, div. H, 118 Stat. 2809 at 3268)
requires the Department of
Transportation and certain other Federal
agencies to conduct a privacy impact
assessment of each proposed rule that
will affect the privacy of individuals.
Claims submitted under this rule will be
treated the same as all legal claims
received by MarAd. The processing and
treatment of any claim within the scope
of this rulemaking by MarAd shall
comply with all legal, regulatory and
policy requirements regarding privacy.
Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (PRA) (44 U.S.C. 3501 et seq.),
Federal agencies must obtain approval
from OMB for each collection of
information they conduct, sponsor, or
require through regulations. This NPRM
proposes regulatory clarification to
seamen’s claims, administrative action
procedures and Admiralty Extension
Claim procedures. This rulemaking
contains no new or amended
information collection or recordkeeping
requirements that have been approved
or require approval by the Office of
Management and Budget.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act
of 1995 requires Agencies to evaluate
whether an Agency action would result
in the expenditure by State, local, and
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tribal governments, in the aggregate, or
by the private sector, of $141.3 million
or more (as adjusted for inflation) in any
1 year, and if so, to take steps to
minimize these unfunded mandates.
This proposed rule does not impose
unfunded mandates under the
Unfunded Mandates Reform Act of
1995. It does not result in costs of
$141.3 million or more to either State,
local, or tribal governments, in the
aggregate, or to the private sector, and
is the least burdensome alternative that
achieves the objectives of the rule.
Regulation Identifier Number (RIN)
A regulation identifier number (RIN)
is assigned to each regulatory action
listed in the Unified Agenda of Federal
Regulations. The Regulatory Information
Service Center publishes the Unified
Agenda in April and October of each
year. The RIN number contained in the
heading of this document can be used
to cross-reference this action with the
Unified Agenda.
List of Subjects in 46 CFR Part 327
Administrative practice and
procedures, Claims, Seaman.
Accordingly, the Maritime
Administration proposes to revise part
327 of 46 CFR, to read as follows:
PART 327—SEAMEN’S CLAIMS;
ADMINISTRATIVE ACTION AND
LITIGATION
Sec.
Subpart A—Seamen’s Claims;
Administrative Action and Litigation
327.1 Purpose.
327.2 Statutory provisions.
327.3 Required claims submission.
327.4 Claim requirements.
327.5 Filing claims.
327.6 Notice of allowance or disallowance.
327.7 Administrative disallowance
presumption.
327.8 Court action.
Subpart B—Admiralty Extension Act Claims
Administrative Action and Litigation
327.20 Admiralty Jurisdiction Extension
Claims: Required claims.
327.21 Definitions.
327.22 Who may present claims.
327.23 Insurance and other subrogated
claims.
327.24 Actions by claimant.
327.25 Contents of a claim.
327.26 Evidence supporting a claim.
327.27 Proof of amount claimed for
personal injury.
327.28 Proof of amount claimed for loss of,
or damage to, property.
327.29 Effect of other payments to claimant.
327.30 Statute of limitations for AEA and
claim requirements.
327.31 Statute of limitations not tolled by
administrative consideration of claims.
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327.32 Notice of claim acceptance or
denial.
327.33 Claim denial presumption.
327.34 Court action.
Subpart C—Other Admiralty Claims
327.40 Other Admiralty Claims.
327.41 Definitions.
327.42 Who may present claims.
327.43 Insurance and other subrogated
claims.
327.44 Actions by claimant.
327.45 Contents of a claim.
327.46 Evidence supporting a claim.
327.47 Proof of amount claimed for
personal injury.
327.48 Proof of amount claimed for loss of,
or damage to, property.
327.49 Effect of other payments to claimant.
327.50 Statute of limitations for other
admiralty claims and claim
requirements.
327.51 Statute of limitations not tolled by
administrative consideration of claims.
327.52 Notice of claim acceptance or
denial.
Authority: 46 U.S.C. Chapters 301–309.
Subpart A—Clarification Act Claims:
Seamen’s Claims; Administrative
Action and Litigation
§ 327.1
Purpose.
This part prescribes rules and
regulations pertaining to the filing of
claims designated in § 327.3 of this part
and the administrative allowance, or
disallowance (actual and presumed), of
such claims, in whole or in part, filed
by officers and members of crews
(hereafter referred to as ‘‘seamen’’)
employed on vessels as employees of
the United States through the National
Shipping Authority (NSA), Maritime
Administration (MarAd), or successor.
§ 327.2
Statutory provisions.
(a) These regulations are enacted to
implement the administrative claims
procedures set forth in 50 U.S.C. App.
1291(a).
§ 327.3
Required claims submission.
All claims specified in 50 U.S.C. App.
1291(a) (2) and (3), quoted in § 327.2(b)
of this part, shall be submitted for
administrative consideration, as
provided in §§ 327.4 and 327.5 of this
part, prior to institution of court action
thereon.
§ 327.4
Claim requirements.
(a) Form. The claim may be in any
form and shall be
(1) In writing,
(2) Designated as a claim,
(3) Disclose that the object sought is
the administrative allowance of the
claim,
(4) Comply with the requirements of
this part, and
(5) Filed as provided in § 327.5 of this
part.
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(6) The claim must be signed or
attested to by the claimant. The
statements made in the claim should be
made to the best of the knowledge of the
claimant and are subject to the
provision of 18 U.S.C. §§ 287 and 1001
and all other penalty provisions for
making false, fictitious, or fraudulent
claims, statements or entries, or
falsifying, concealing, or covering up a
material fact in any matter within the
jurisdiction of any department or agency
of the United States. Any lawsuits filed
contrary to the provisions of section 5
of the Suits in Admiralty Act, as
amended by Public Law 877, 81st
Congress (64 Stat. 1112; 46 U.S.C.
§ 30901 et seq.), shall not be in
compliance with the requirements of
this part.
(b) Contents. Each claim shall include
the following information:
(1) With respect to the seaman:
(i) Name;
(ii) Mailing address;
(iii) Date of birth;
(iv) Legal residence address;
(v) Place of birth; and
(vi) Merchant mariner license or
document number and social security
number.
(2) With respect to the basis for the
claim:
(i) Name of vessel on which the
seaman was serving when the incident
occurred that is the basis for the claim;
(ii) Place where the incident occurred;
(iii) Time of incident—year, month
and day, and the precise time of day, to
the minute, where possible;
(iv) Narrative of the facts and
circumstances surrounding the incident,
including a statement explaining why
the United States is liable for this claim;
(v) Pictures, video recordings and
other physical evidence related to the
case and
(vi) The names, addresses, and
telephone numbers, if available, of
others who can supply factual
information about the incident and its
consequences.
(3) A sum certain dollar amount of
claim, which includes a total for all
amounts sought. The claim shall explain
the amounts sought for:
(i) Past loss of earnings or earning
capacity;
(ii) Future loss of earnings or earning
capacity;
(iii) Medical expenses paid out of
pocket;
(iv) Pain and suffering; and
(v) Any other loss arising out of the
incident (describe).
(4) All medical and clinical records of
physicians and hospitals related to a
seaman’s claim for injury, illness, or
death shall be attached. If the claimant
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does not have a copy of each record, the
claimant shall identify every physician
and hospital having records relating to
the seaman and shall provide written
authorization for MarAd to obtain all
such records. The claim shall also
include the number of days the seaman
worked as a merchant mariner and the
earnings received for the current
calendar year, as well as for the two
preceding calendar years.
(5) If the claim does not involve a
seaman’s death, the following
information shall be submitted with the
claim:
(i) Date the seaman signed a
reemployment register as a merchant
mariner;
(ii) Copy of the medical fit-for-duty
certificate issued to the seaman;
(iii) Date and details of next
employment as a seaman; and
(iv) Date and details of next
employment as other than a seaman.
(6) If the claim is for other than
personal injury, illness or death, the
claim shall provide all supporting
information concerning the nature and
dollar amount of the loss.
§ 327.5
Filing claims.
(a) Claims may be filed by or on
behalf of seamen or their surviving
dependents or beneficiaries, or by their
legal representatives. Claims shall be
filed either by personal delivery or by
registered mail.
(b) The claimant shall send the claim
directly to the Chief, Division of Marine
Insurance, Maritime Administration,
Department of Transportation, 1200
New Jersey Ave. SE., Washington, DC
20590. A copy of each claim shall be
filed with the Ship Manager or General
Agent of the vessel with respect to
which such claim arose.
§ 327.6 Notice of allowance or
disallowance.
MarAd shall give prompt notice in
writing of the allowance or
disallowance of each claim, in whole or
in part, by mail to the last known
address of, or by personal delivery to,
the claimant or the claimant’s legal
representative. In the case of
administrative disallowance, in whole
or in part, such notice shall contain a
brief statement of the reason for such
disallowance.
§ 327.7 Administrative disallowance
presumption.
If MarAd fails to give written notice
of allowance or disallowance of a claim
in accordance with § 327.6 of this part
within sixty (60) calendar days
following the date of the receipt of such
claim by the proper person designated
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in § 327.5 of this part, such claim shall
be presumed to have been
‘‘administratively disallowed,’’ within
the meaning in section 1(a) of 50 U.S.C.
App. § 1291(a), quoted in section
327.2(b) of this part.
§ 327.8 Court action.
No seamen, having a claim specified
in subsections (2) and (3) of section 1(a)
of 50 U.S.C. App. § 1291(a), their
surviving dependents and beneficiaries,
or their legal representatives shall
institute a court action for the
enforcement of such claim unless such
claim shall have been prepared and
filed in accordance with §§ 327.4 and
327.5 of this part and shall have been
administratively disallowed in
accordance with § 327.6 or 327.7 of this
part.
This part prescribes rules and
regulations pertaining to the filing of
claims designated in § 327.3 of this part
and the administrative allowance, or
disallowance (actual and presumed), of
such claims, in whole or in part, filed
by officers and members of crews
(hereafter referred to as ‘‘seamen’’)
employed on vessels through the
National Shipping Authority (NSA),
Maritime Administration (MarAd), or
successor organization.
Subpart B—Admiralty Extension Act
Claims; Administrative Action and
Litigation
§ 327.20 Admiralty Jurisdiction Extension
Claims: Required claims.
(a) Pursuant to 46 U.S.C. 30101(c) of
the Admiralty Extension Act (AEA),
administrative claims involving the
extension of admiralty jurisdiction to
cases of damage or injury on land
caused by a Maritime Administration
vessel on navigable waters must be
presented in writing to the Maritime
Administration in accordance with
§ 327.20–34 of this part prior to
institution of a court action thereon.
(b) A civil action against the United
States for injury or damage done or
consummated on land by a vessel on
navigable waters may not be brought
until the earlier occurrence of either the
denial of the claim by the Maritime
Administration or the presumptive
denial of the claim which arises 6
months after the claim has been
presented in writing to the Maritime
Administration. 46 U.S.C. 30101(c)(2).
Note that the 6 month period of review
will not begin until a valid claim is filed
pursuant to § 327.25.
(c) Proceedings against the United
States pursuant to the requirements of
the AEA and these regulations is the
exclusive remedy available against the
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United States of America, acting by and
through the Maritime Administration,
with respect to such injuries and
damages.
§ 327.21
Definitions.
(a) Accrual Date. The day on which
the alleged wrongful act or omission
results in injury or damage for which a
claim is made.
(b) Claim. A written notification of an
incident, signed by the claimant,
describing the incident and explaining
why the United States is liable. The
claim shall be accompanied by a
demand for the payment of a sum
certain of money, with a statement as to
how that sum certain was calculated
and all documents supporting the
amount claimed. Where damages for
medical injuries are made, the doctor’s
statement relating the injuries to the
accident should be attached as well as
medical release forms for each treating
physician, hospital, and medical care
provider.
tkelley on DSK3SPTVN1PROD with PROPOSALS
§ 327.22
Who may present claims.
(a) General rules:
(1) A claim for property loss or
damage may be presented by anyone
having an interest in the property,
including an insurer or other subrogee.
(2) A claim for personal injury may be
presented by the person injured.
(3) A claim based on death may be
presented by the executor or
administrator of the decedent’s estate, or
any other person legally entitled to
assert such a claim under local law. The
claimant’s status must be stated in the
claim.
(4) A claim for medical, hospital, or
burial expenses may be presented by
any person who by reason of family
relationship has, in fact, incurred the
expenses.
(b) A joint claim must be presented in
the names of and signed by, the joint
claimants, and the settlement will be
made payable to the joint claimants.
(c) A claim may be presented by a
duly authorized agent, legal
representative or survivor, if it is
presented in the name of the claimant.
If the claim is not signed by the
claimant, the agent, legal representative,
or survivor shall indicate their title or
legal capacity and provide evidence of
their authority to present the claim.
(d) Where the same claimant has a
claim for damage to or loss of property
and a claim for personal injury or a
claim based on death arising out of the
same incident, they must be combined
in one claim.
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§ 327.23
claims.
Insurance and other subrogated
(a) The claims of an insured
(subrogor) and an insurer (subrogee) for
damages arising out of the same
incident constitute a single claim.
(b) An insured (subrogor) and an
insurer (subrogee) may file a claim
jointly or separately. If the insurer has
fully reimbursed the insured, payment
will only be made to the insurer. If
separate claims are filed, the settlement
will be made payable to each claimant
to the extent of that claimant’s
undisputed interest. If joint claims are
filed, the settlement will be sent to the
insurer.
(c) Each claimant shall include with
a claim, a written disclosure concerning
insurance coverage including:
(1) The names and addresses of all
insurers;
(2) The kind and amount of insurance;
(3) The policy number;
(4) Whether a claim has been or will
be presented to an insurer, and, if so,
the amount of that claim; and whether
the insurer has paid the claim in whole
or in part, or has indicated payment will
be made.
(d) Each subrogee shall substantiate
an interest or right to file a claim by
appropriate documentary evidence and
shall support the claim as to liability
and measure of damages in the same
manner as required of any other
claimant. Documentary evidence of
payment to a subrogor does not
constitute evidence of liability of the
United States or conclusive evidence of
the amount of damages. The Maritime
Administration makes an independent
determination on the issues of fact and
law based upon the evidence of record.
evidence of property damage or loss,
personal injury, or death, as applicable
together with supporting medical
records and a HIPPA compliant medical
waiver for each treating physician or
hospital;
(5) A detailed description of the
incident giving rise to the claim and the
factual basis upon which it is claimed
the Maritime Administration is liable
for the claim;
(6) A description of any property
damage or loss, including the identity of
the owner, if other than the claimant, as
applicable;
(7) The nature and extent of the
injury, as applicable;
(8) The full name, title, if any, and
address of any witness to the incident
and a brief statement of the witness’
knowledge of the incident;
(9) A description of any insurance
carried by the claimant or owner of the
property and the status of any insurance
claim arising from the incident; and
(10) An agreement by the claimant to
accept the total amount claimed in full
satisfaction and final settlement of the
claim, lien or subrogation claim on the
claimed amount, or any assignment of
the claim.
(b) A claimant or duly authorized
agent or legal representative must sign
in ink a claim and any amendment to
that claim. The claim shall include a
statement that the information provided
is true and correct to the best of the
claimant’s knowledge, information, and
belief. If the person’s signature does not
include the first name, middle initial, if
any, and surname, that information
must be included in the claim. A
married woman must sign her claim in
her given name, e.g., ‘‘Mary A. Doe,’’
rather than ‘‘Mrs. John Doe.’’
§ 327.24
§ 327.26
Actions by claimant.
(a) Form of claim. The claim must
meet the requirements of § 327.24.
(b) Presentation. The claim must be
presented in writing to the Office of
Chief Counsel, Attn. Chief Counsel,
Maritime Administration, Department of
Transportation, 1200 New Jersey Ave
SE., Washington, DC 20590–0001.
§ 327.25
Contents of a claim.
(a) A valid claim will contain the
following:
(1) Identification of the Maritime
Administration as the agency whose act
or omission gave rise to the claim;
(2) The full name and mailing address
of the claimant. If this mailing address
is not claimant’s residence, the claimant
shall also include residence address;
(3) The date, time, and place of the
incident giving rise to the claim;
(4) The amount claimed, in a sum
certain, supported by independent
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Evidence supporting a claim.
(a) The claimant shall present any
evidence in the claimant’s possession
that supports the claim. This evidence
shall include, if available, statements of
witnesses, accident or casualty reports,
photographs and drawings.
(b) Notwithstanding anything in these
regulations, the claimant shall provide
such additional reasonable documents
and evidence as requested by the
Maritime Administration with respect to
the claim. Failure to respond to
reasonable requests for additional
information and documentation can
result in a determination that a valid
claim has not been submitted.
§ 327.27 Proof of amount claimed for
personal injury.
The following evidence must be
presented when appropriate in claims:
(a) Itemized medical, hospital, and
burial bills.
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(b) A written report by the attending
physician including:
(1) The nature and extent of the injury
and the treatment;
(2) The necessity and reasonableness
of the various medical expenses
incurred;
(3) Duration of time injuries
prevented or limited employment;
(4) Past, present, and future
limitations on employment;
(5) Duration and extent of pain and
suffering and of any disability or
physical disfigurement;
(6) A current prognosis;
(7) Any anticipated medical expenses;
(8) Any past medical history of the
claimant relevant to the particular
injury alleged; and
(9) If required by the Maritime
Administration, an examination by an
independent medical facility or
physician to provide independent
medical evidence against which to
evaluate the written report of the
claimant’s physician. The Maritime
Administration determines the need for
this examination, makes mutually
convenient arrangements for such an
examination, and bears the costs
thereof.
(c) All hospital records or other
medical documents from either this
injury or any relevant past injury.
(d) If the claimant is employed, a
written statement by the claimant’s
employer certifying the claimant’s:
(1) Age;
(2) Occupation;
(3) Hours of employment;
(4) Hourly rate of pay or weekly
salary;
(5) Time lost from work as a result of
the incident; and
(6) Claimant’s actual period of
employment, full-time or part-time, and
any effect of the injury upon such
employment to support claims for lost
earnings.
(e) If the claimant is self-employed,
written statements, or other evidence
showing:
(1) The amount of earnings actually
lost; and
(2) The Federal tax return if filed for
the three previous years.
(f) If the claim arises out of injuries to
a person providing services to the
claimant, statement of the cost
necessarily incurred to replace the
services to which claimant is entitled
under law.
§ 327.28 Proof of amount claimed for loss
of, or damage to, property.
The following evidence must be
presented when appropriate:
(a) For each particular lost item,
evidence of its value such as a bill of
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sale and a written appraisal, or two
written appraisals, from separate
disinterested dealers or brokers, market
quotations, commercial catalogs, or
other evidence of the price at which like
property can be obtained in the
community. The Maritime
Administration may waive these
requirements when circumstances
warrant. The reasonable cost of any
appraisal may be included as an
element of damage if not deductible
from any bill submitted to claimant.
(b) For each particular damaged item
which can be economically repaired,
evidence of cost of repairs such as a
receipted bill and one estimate, or two
estimates, from separate disinterested
repairmen. The Maritime
Administration may waive these
requirements when circumstances
warrant. The reasonable cost of any
estimate may be included as an element
of damage if not deductible from any
repair bill submitted to claimant.
(c) For any claim for property damage
which may result in payment in excess
of $20,000.00, a survey or appraisal
shall be performed as soon as
practicable after the damage accrues,
and, unless waived in writing, shall be
performed jointly with a government
representative.
(d) If the item is so severely damaged
that it cannot be economically repaired
or used, it shall be treated as a lost item.
(e) If a claim includes loss of earnings
or use during repairs to the damaged
property, the following must also be
furnished and supported by competent
evidence:
(1) The date the property was
damaged;
(2) The name and location of the
repair facility;
(3) The beginning and ending dates of
repairs and an explanation of any delay
between the date of damage and the
beginning date;
(4) A complete description of all
repairs performed, segregating any work
performed for the owner’s account and
not attributable to the incident involved,
and the costs thereof;
(5) The date and place the property
was returned to service after completion
of repairs, and an explanation, if
applicable, of any delay;
(6) Whether or not a substitute for the
damaged property was available. If a
substitute was used by the claimant
during the time of repair, an explanation
of the necessity of using the substitute,
how it was used, and for how long, and
the costs involved. Any costs incurred
that would have been similarly incurred
by the claimant in using the damaged
property must be identified;
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(7) Whether or not during the course
of undergoing repairs the property
would have been used, and an
explanation submitted showing the
identity of the person who offered that
use, the terms of the offer, time of
prospective service, and rate of
compensation; and
(8) If at the time of damage the
property was under charter or hire, or
was otherwise employed, or would have
been employed, the claimant shall
submit a statement of operating
expenses that were, or would have been,
incurred. This statement shall include
wages and all bonuses which would
have been paid, the value of fuel and the
value of consumable stores, separately
stated, which would have been
consumed, and all other costs of
operation which would have been
incurred including, but not limited to,
license and parking fees, personnel
expenses, harbor fees, wharfage,
dockage, shedding, stevedoring, towage,
pilotage, inspection, tolls, lockage,
anchorage and moorage, grain elevation,
storage, and customs fees.
(f) For each item which is lost, actual
or constructive, proof of ownership.
§ 327.29 Effect of other payments to
claimant.
The total amount to which the
claimant may be entitled is normally
computed as follows:
(a) The total amount of the loss,
damage, or personal injury suffered for
which the United States is liable, less
any payment the claimant has received
from the following sources:
(1) The military member or civilian
employee who caused the incident;
(2) The military member’s or civilian
employee’s insurer; and
(3) Any joint tort-feasor or insurer.
(b) No deduction is generally made for
any payment the claimant has received
by way of voluntary contributions, such
as donations of charitable organizations.
§ 327.30 Statute of limitations for AEA and
claim requirements.
A civil suit must be filed within two
years of the Accrual Date. No civil suit
may be brought until the earlier
occurrence of either the denial of a
claim or the presumptive denial of the
claim after 6 months from the date the
claim was properly presented in writing
to the Maritime Administration.
§ 327.31 Statute of limitations not tolled by
administrative consideration of claims.
The statute of limitations for filing a
civil action under 46 U.S.C. § 30101(b)
is not tolled by MarAd’s administrative
consideration of a claim.
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§ 327.32
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Notice of claim acceptance or
The Maritime Administration shall
give prompt notice in writing of the
acceptance or denial of each claim in
whole or in part, by mail to the last
known address of, or by personal
delivery to, the claimant or the
claimant’s legal representative. In the
case of denial, such notice shall contain
a brief statement of the reason for such
a denial.
§ 327.33
Claim denial presumption.
If the Maritime Administration fails to
give written notice of acceptance or
denial of a claim in accordance with
§ 327.30 of this part within 6 months
following the date of receipt of such a
claim by the proper person designated
in § 327.24(b) of this part, such claim
shall be presumed to have been denied
by the Maritime Administration.
§ 327.34
Court action.
No person, surviving dependent or
beneficiary, or legal representative,
having a claim specified under 46
U.S.C. 30101(a) against the Maritime
Administration, shall institute a court
action against the Maritime
Administration unless an administrative
claim has previously been properly
presented and filed in accordance with
§ 327.22, § 327.23, and § 327.24 of this
part, and such administrative claim has
been subsequently denied in accordance
with § 327.32 or § 327.33 of this part.
Subpart C—Other Admiralty Claims.
tkelley on DSK3SPTVN1PROD with PROPOSALS
§ 327.40
Other Admiralty Claims.
(a) Admiralty claims caused by
United States owned and operated
vessels on navigable waters or otherwise
that are not covered under the
Clarification Act (50 U.S.C. app.
1291(a)), the Admiralty Extension Act
(46 U.S.C. 30101) or the Contracts
Disputes Act (41 U.S.C. 601 et seq.) may
be filed with the Maritime
Administration in accordance with
§ 327.40–52 of this part.
(b) A civil action against the United
States for admiralty claims caused by
United States owned and operated
vessels on navigable waters or otherwise
that are not covered under the
Clarification Act (50 U.S.C. app.
1291(a)), the Admiralty Extension Act
(46 U.S.C. 30101) or the Contracts
Disputes Act (41 U.S.C. 601 et seq.) may
be brought without the filing of an
administrative claim. This Part III sets
forth the optional procedure for filing
such claims with the Maritime
Administration in advance of litigation.
Once litigation is filed, the authority to
handle such claims is vested with the
Justice Department, not the agency.
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(c) Proceeding against the United
States pursuant to the requirements this
Part III is not a requirement for filing
suit against the United States of
America, acting by and through the
Maritime Administration, with respect
to such admiralty claims.
§ 327.41
Definitions.
(a) Accrual Date. The day on which
the alleged wrongful act or omission
results in injury or damage for which a
claim is made.
(b) Claim. A written notification of an
incident, signed by the claimant,
describing the incident and explaining
why the United States is liable. The
claim shall be accompanied by a
demand for the payment of a sum
certain of money, with a statement as to
how that sum certain was calculated
and all documents supporting the
amount claimed. Where damages for
medical injuries are made, the doctor’s
statement relating the injuries to the
accident should be attached as well as
medical release forms for each treating
physician, hospital, and medical care
provider.
§ 327.42
Who may present claims.
(a) General rules:
(1) A claim for property loss or
damage may be presented by anyone
having an interest in the property,
including an insurer or other subrogee.
(2) A claim for personal injury may be
presented by the person injured.
(3) A claim based on death may be
presented by the executor or
administrator of the decedent’s estate, or
any other person legally entitled to
assert such a claim under local law. The
claimant’s status must be stated in the
claim.
(4) A claim for medical, hospital, or
burial expenses may be presented by
any person who by reason of family
relationship has, in fact, incurred the
expenses.
(5) A joint claim must be presented in
the names of and signed by, the joint
claimants, and the settlement must be
made payable to the joint claimants.
(b) A claim may be presented by a
duly authorized agent, legal
representative or survivor, if it is
presented in the name of the claimant.
If the claim is not signed by the
claimant, the agent, legal representative,
or survivor shall indicate their title or
legal capacity and provide evidence of
their authority to present the claim.
(c) Where the same claimant has a
claim for damage to or loss of property
and a claim for personal injury or a
claim based on death arising out of the
same incident, they must be combined
in one claim.
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§ 327.43
claims.
Insurance and other subrogated
(a) The claims of an insured
(subrogor) and an insurer (subrogee) for
damages arising out of the same
incident constitute a single claim.
(b) An insured (subrogor) and an
insurer (subrogee) may file a claim
jointly or separately. If the insurer has
fully reimbursed the insured, payment
will only be made to the insurer. If
separate claims are filed, the settlement
will be made payable to each claimant
to the extent of that claimant’s
undisputed interest. If joint claims are
filed, the settlement will be sent to the
insurer.
(c) Each claimant shall include with
a claim, a written disclosure concerning
insurance coverage including:
(1) The names and addresses of all
insurers;
(2) The kind and amount of insurance;
(3) The policy number; and
(4) Whether a claim has been or will
be presented to an insurer, and, if so,
the amount of that claim; and whether
the insurer has paid the claim in whole
or in part, or has indicated payment will
be made.
(d) Each subrogee shall substantiate
an interest or right to file a claim by
appropriate documentary evidence and
shall support the claim as to liability
and measure of damages in the same
manner as required of any other
claimant. Documentary evidence of
payment to a subrogor does not
constitute evidence of liability of the
United States or conclusive evidence of
the amount of damages. The Maritime
Administration makes an independent
determination on the issues of fact and
law based upon the evidence of record.
§ 327.44
Actions by claimant.
(a) Form of claim. The claim should
meet the requirements of § 327.44 of this
part.
(b) Presentation. The claim must be
presented in writing to the Office of
Chief Counsel, Attn: Chief Counsel,
Maritime Administration, Department of
Transportation, 1200 New Jersey Ave.
SE., Washington, DC 20590–0001.
§ 327.45
Contents of a claim.
(a) A properly filed claim shall
include the following, however, any of
the following requirements may be
waived by the Maritime Administration:
(1) Identification of the Maritime
Administration as the agency whose act
or omission gave rise to the claim;
(2) The full name and mailing address
of the claimant. If this mailing address
is not claimant’s residence, the claimant
shall also include residence address;
(3) The date, time, and place of the
incident giving rise to the claim;
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(a) The claimant should present any
evidence in the claimant’s possession
that supports the claim. This evidence
shall include, if available, statements of
witnesses, accident or casualty reports,
photographs and drawings.
(b) Notwithstanding anything in these
regulations, the claimant shall provide
such additional documents and
evidence as requested by the Maritime
Administration with respect to the
claim. Failure to respond to reasonable
requests for additional information and
documentation can result in a
determination that a proper claim has
not been submitted.
(a) Itemized medical, hospital, and
burial bills.
(b) A written report by the attending
physician including:
(1) The nature and extent of the injury
and the treatment;
(2) The necessity and reasonableness
of the various medical expenses
incurred;
(3) Duration of time injuries
prevented or limited employment;
(4) Past, present, and future
limitations on employment;
(5) Duration and extent of pain and
suffering and of any disability or
physical disfigurement;
(6) A current prognosis;
(7) Any anticipated medical expenses;
(8) Any past medical history of the
claimant relevant to the particular
injury alleged; and
(9) At the request of the Maritime
Administration, an examination by an
independent medical facility or
physician may be required to provide
independent medical evidence against
which to evaluate the written report of
the claimant’s physician. The Maritime
Administration determines the need for
this examination, makes mutually
convenient arrangements for such an
examination, and bears the costs
thereof.
(c) All hospital records or other
medical documents from either this
injury or any relevant past injury.
(d) If the claimant is employed, a
written statement by the claimant’s
employer certifying the claimant’s:
(1) Age;
(2) Occupation;
(3) Hours of employment;
(4) Hourly rate of pay or weekly
salary;
(5) Time lost from work as a result of
the incident; and
(6) Claimant’s actual period of
employment, full-time or part-time, and
any effect of the injury upon such
employment to support claims for lost
earnings.
(e) If the claimant is self-employed,
written statements, or other evidence
showing:
(1) The amount of earnings actually
lost, and
(2) The Federal tax return if filed for
the three previous years.
(f) If the claim arises out of injuries to
a person providing services to the
claimant, statement of the cost
necessarily incurred to replace the
services to which claimant is entitled
under law.
§ 327.47 Proof of amount claimed for
personal injury.
§ 327.48 Proof of amount claimed for loss
of, or damage to, property.
The following evidence must be
presented when appropriate in claims:
The following evidence should be
presented when appropriate:
(4) The amount claimed, in a sum
certain, supported by independent
evidence of property damage or loss,
personal injury, or death, as applicable
together with supporting medical
records and a HIPPA compliant medical
waiver for each treating physician,
hospital, or medical provider;
(5) A detailed description of the
incident giving rise to the claim and the
factual basis upon which it is claimed
the United States is liable for the claim;
(6) A description of any property
damage or loss, including the identity of
the owner, if other than the claimant, as
applicable;
(7) The nature and extent of the
injury, as applicable;
(8) The full name, title, if any, and
address of any witness to the incident
and a brief statement of the witness’
knowledge of the incident;
(9) A description of any insurance
carried by the claimant or owner of the
property and the status of any insurance
claim arising from the incident; and
(10) An agreement by the claimant to
accept the total amount claimed in full
satisfaction and final settlement of the
claim, lien, or subrogation claim on the
claimed amount, or any assignment of
the claim.
(b) A claimant or duly authorized
agent or legal representative must sign
in ink a claim and any amendment to
that claim. The claim shall include a
statement that the information provided
is true and correct to the best of the
claimant’s knowledge, information, and
belief. If the person’s signature does not
include the first name, middle initial, if
any, and surname, that information
must be included in the claim. A
married woman must sign her claim in
her given name, e.g., ‘‘Mary A. Doe,’’
rather than ‘‘Mrs. John Doe.’’
tkelley on DSK3SPTVN1PROD with PROPOSALS
§ 327.46
Evidence supporting a claim.
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5225
(a) For each particular lost item,
evidence of its value such as a bill of
sale and a written appraisal, or two
written appraisals, from separate
disinterested dealers or brokers, market
quotations, commercial catalogs, or
other evidence of the price at which like
property can be obtained in the
community. The Maritime
Administration may waive these
requirements when circumstances
warrant. The reasonable cost of any
appraisal may be included as an
element of damage if not deductible
from any bill submitted to claimant.
(b) For each particular damaged item
which can be economically repaired,
evidence of cost of repairs such as a
receipted bill and one estimate, or two
estimates, from separate disinterested
repairmen. The Maritime
Administration may waive these
requirements when circumstances
warrant. The reasonable cost of any
estimate may be included as an element
of damage if not deductible from any
repair bill submitted to claimant.
(c) For any claim which may result in
payment in excess of $20,000.00, a
survey or appraisal shall be performed
as soon as practicable after the damage
accrues, and, unless waived in writing,
shall be performed jointly with a
government representative.
(d) If the item is so severely damaged
that it cannot be economically repaired
or used, it shall be treated as a lost item.
(e) If a claim includes loss of earnings
or use during repairs to the damaged
property, the following must also be
furnished and supported by competent
evidence:
(1) The date the property was
damaged;
(2) The name and location of the
repair facility;
(3) The beginning and ending dates of
repairs and an explanation of any delay
between the date of damage and the
beginning date;
(4) A complete description of all
repairs performed, segregating any work
performed for the owner’s account and
not attributable to the incident involved,
and the costs thereof;
(5) The date and place the property
was returned to service after completion
of repairs, and an explanation, if
applicable, of any delay;
(6) Whether or not a substitute for the
damaged property was available. If a
substitute was used by the claimant
during the time of repair, an explanation
of the necessity of using the substitute,
how it was used, and for how long, and
the costs involved. Any costs incurred
that would have been similarly incurred
by the claimant in using the damaged
property must be identified;
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tkelley on DSK3SPTVN1PROD with PROPOSALS
(7) Whether or not during the course
of undergoing repairs the property
would have been used, and an
explanation submitted showing the
identity of the person who offered that
use, the terms of the offer, time of
prospective service, and rate of
compensation; and
(8) If at the time of damage the
property was under charter or hire, or
was otherwise employed, or would have
been employed, the claimant shall
submit a statement of operating
expenses that were, or would have been,
incurred. This statement shall include
wages and all bonuses which would
have been paid, the value of fuel and the
value of consumable stores, separately
stated, which would have been
consumed, and all other costs of
operation which would have been
incurred including, but not limited to,
license and parking fees, personnel
expenses, harbor fees, wharfage,
dockage, shedding, stevedoring, towage,
pilotage, inspection, tolls, lockage,
anchorage and moorage, grain elevation,
storage, and customs fees.
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(f) For each item which is lost, actual
or constructive, proof of ownership.
§ 327.51 Statute of limitations not tolled by
administrative consideration of claims.
§ 327.49 Effect of other payments to
claimant.
The statute of limitations for filing a
civil action under 46 U.S.C. 30101(b) is
not tolled by the Maritime
Administration’s administrative
consideration of a claim.
The total amount to which the
claimant may be entitled is normally
computed as follows:
(a) The total amount of the loss,
damage, or personal injury suffered for
which the United States is liable, less
any payment the claimant has received
from the following sources:
(1) The military member or civilian
employee who caused the incident;
(2) The military member’s or civilian
employee’s insurer; and
(3) Any joint tort-feasor or insurer.
(b) No deduction is generally made for
any payment the claimant has received
by way of voluntary contributions, such
as donations of charitable organizations.
§ 327.50 Statute of limitations for other
admiralty claims and claim requirements.
A civil suit must be filed within the
statute of limitations of the specific
admiralty claim. The start date for such
statute of limitations determinations
shall be the Accrual Date.
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§ 327.52
denial.
Notice of claim acceptance or
The Maritime Administration shall
give prompt notice in writing of the
acceptance or denial of each claim in
whole or in part, by mail to the last
known address of, or by personal
delivery to, the claimant or the
claimant’s legal representative. In the
case of denial, such notice shall contain
a brief statement of the reason for such
a denial.
Dated: January 27, 2012.
By Order of the Maritime Administrator.
Julie Agarwal,
Secretary, Maritime Administration.
[FR Doc. 2012–2253 Filed 2–1–12; 8:45 am]
BILLING CODE 4910–81–P
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Agencies
[Federal Register Volume 77, Number 22 (Thursday, February 2, 2012)]
[Proposed Rules]
[Pages 5217-5226]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2253]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Maritime Administration
46 CFR Part 327
[Docket No. MARAD 2012-0005]
RIN 2133-AB79
Retrospective Review Under E.O. 13563: Seamen's Claims; Admiralty
Extension Act Claims; and Admiralty Claims
AGENCY: Maritime Administration, Department of Transportation.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: In accordance with Executive Order 13563, ``Improving
Regulation and Regulatory Review,'' the Maritime Administration (MarAd)
is evaluating the continued validity of its rules and determining
whether they effectively address current issues. As part of this
review, MarAd is soliciting public comment concerning clarification of
its regulations pertaining to seamen's claims, administrative action
taken against MarAd, and litigation pertaining to such matters.
Specifically, MarAd proposes to update and modernize the existing
regulations and to adopt a procedural process to more effectively
address claims arising under the Suits in Admiralty Act, the Admiralty
Extension Act and the Clarification Act. The revised regulations
implement the Clarification Act and implement a process to resolve
administrative claims arising under the Admiralty Extension Act, and
both the Suits in Admiralty Act and the Public Vessels Act,
respectively. MarAd will consider the comments it receives and
determine whether any changes should be made to the proposed
regulation.
DATES: Written comments are requested, and must be received on or
before May 2, 2012.
ADDRESSES: You may submit comments [identified by Docket Number MARAD-
2012-0005] by any of the following methods:
Fax: 1-202-493-2251.
Mail: Docket Management Facility; U.S. Department of
Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington,
DC 20590-0001.
Hand Delivery or Courier: Room W12-140 on the plaza level
of the U.S. Department of Transportation at 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal Holidays.
Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the
[[Page 5218]]
online instructions for submitting comments.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation'' portion of the SUPPLEMENTARY
INFORMATION section below for instructions on submitting comments,
including collection of information comments, if any for the Office of
Information and Regulatory Affairs (OIRA), OMB. All comments received
will be posted without change to https://www.regulations.gov including
any personal information provided.
FOR FURTHER INFORMATION CONTACT: You may contact Jay Gordon, Assistant
Chief Counsel for Litigation and General Law, at (202) 366-5173. You
may send mail to Mr. Gordon at Office of Chief Counsel, MAR-221,
Maritime Administration, 1200 New Jersey Avenue SE., Washington, DC
20590-0001. You may send electronic mail to jay.gordon@dot.gov.
SUPPLEMENTARY INFORMATION:
Background
On January 18, 2011, President Obama issued Executive Order 13563,
which outlined a plan to improve regulation and regulatory review (76
FR 3821, 1/21/11). Executive Order 13563 reaffirms and builds upon
governing principles of contemporary regulatory review, including
Executive Order 12866, ``Regulatory Planning and Review,'' (58 FR
51735, 10/4/1993), by requiring Federal agencies to design cost-
effective, evidence-based regulations that are compatible with economic
growth, job creation, and competitiveness. The President's plan
recognizes that these principles should not only guide the Federal
government's approach to new regulations, but to existing ones as well.
To that end, Executive Order 13563 requires agencies to review existing
significant rules to determine if they are outmoded, ineffective,
insufficient, or excessively burdensome.
Accordingly, the Maritime Administration is soliciting public
comment concerning amendment of its administrative claims governing
seaman's administrative actions and claim litigation. 46 CFR part 327
prescribes rules and regulations pertaining to the filing of admiralty
claims and the administrative allowance or disallowance (actual or
presumed) of such claims, in whole or in part. The existing Part 327
addresses only Seamen's Claims. This NPRM divides Part 327 into three
sections, all of which are related to admiralty claims. Subpart I
addresses Seamen's Claims governed by the Clarification Act, 50 U.S.C.
1291(a). Subpart II addresses claims filed under the Admiralty
Extension Act, 46 U.S.C. 30101, a statutory provision which extends the
admiralty and maritime jurisdiction of the United States to cases of
injury or damage to a person or property caused by a vessel on
navigable waters, even though the injury or damage is done or
consummated on land. Subpart III establishes a procedure for filing
administrative claims for all admiralty claims not covered by Subparts
A or B, or the Contracts Disputes Act (41 U.S.C. 601 et seq.).
The filing of proper administrative claims under Sections I and II
must take place before filing suit against the United States. For
example, under the Clarification Act, before suit can be filed against
the United States, there must be a denial of an administrative claim
filed by officers and members of crews injured aboard MarAd vessels.
Before suit can be filed against the United States under the Admiralty
Extension Act, there must be an administrative denial of a claim filed
under that Act. The new Subpart C establishes an optional procedure
whereby anyone having an admiralty claim not covered by either Subparts
A, B or under the Contracts Disputes Act can file an administrative
claim with MarAd.
Subpart A of Part 327 has also been updated to include technical
changes such as MarAd's new address at 1200 New Jersey Avenue and to
include corrections to statutory references, some of which were made
obsolete as the result of the codification of the Appendix to title 46
of the United States Code. In addition to these technical changes,
MarAd proposes to modernize the regulation by allowing the use of
pictures and video recordings as evidence in administrative actions and
litigation. The current regulations do not provide for the use of such
evidence. The new regulation also requires that the seamen filing
claims sign the claims and verify that they are correct.
Subpart B sets out specific details concerning compliance with the
administrative claim requirement of the Admiralty Extension Act, 46
U.S.C. 30301(c)(2), with respect to filing suit against the United
States. Under this provision, no civil suit can be filed against the
United States ``until the expiration of the 6-month period after the
claim has been presented in writing to the agency owning or operating
the vessel causing the injury or damage.''
Subpart C provides a means whereby an administrative claim can be
filed with respect to any other admiralty matters not addressed in
Subparts A and B or in the Contracts Disputes Act (41 U.S.C. 601 et
seq.). This will provide a means to address administratively admiralty
claims made by other persons or legal entities such as longshoremen and
harbor workers, contractors, invitees injured aboard vessels, and the
owners of damaged vessels filing claims governed by the Suits in
Admiralty Act (46 U.S.C. 30901 et seq.) and the Public Vessels Act (46
U.S.C.A. 31101 et seq.).
As Executive Order 13563 reaffirms, the regulatory process must be
transparent and provide opportunities for public participation. MarAd
particularly believes that the review of its administrative claims
regulations will be more meaningful if there is input from those
affected by those regulations. It is suggested that comments address
how MarAd can better provide for the efficient and appropriate
administration and resolution of administrative claims arising under
the Clarification Act, the Admiralty Extension Act, the Suits in
Admiralty Act and the Public Vessels Act.
Public Participation
Your comments must be written and in English. To ensure that your
comments are correctly filed in the Docket, please include the docket
number of this document in your comments. MarAd encourages you to
provide concise comments. However, you may attach necessary additional
documents to your comments. There is no limit on the length of the
attachments. Please submit your comments, including the attachments, to
addresses given above under ADDRESSES.
If you wish to submit any information under a claim of
confidentiality, you should submit three copies of your complete
submission, including the information you claim to be confidential
business information, to the Chief Counsel, Maritime Administration, at
the address given above under FOR FURTHER INFORMATION CONTACT. When you
send comments containing information claimed to be confidential
information, you should include a cover letter setting forth with
specificity the basis for any such claim.
MarAd will consider all comments received before the close of
business on the comment closing date indicated above under DATES. To
the extent possible, MarAd will also consider comments received after
that date. If a comment is received too late for MarAd to consider in
developing a final rule (assuming that one is issued), MarAd will
consider that comment as an informal suggestion for future rulemaking
action.
[[Page 5219]]
For access to the docket to read background documents, including
those referenced in this document, or to submit or read comments
received, go to the DOT Docket Center located on the ground floor, room
W12-140, U.S. Department of Transportation's Building, 1200 New Jersey
Avenue SE., Washington, DC 20590-0001 between the hours of 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. To review
documents, read comments or to submit comments, the docket is also
available online at https://www.regulations.gov., keyword search MARAD
2011-XXXX.
Please note that even after the comment period has closed, MarAd
will continue to file relevant information in the Docket as it becomes
available. Further, some people may submit late comments. Accordingly,
MarAd recommends that you periodically check the Docket for new
material.
Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review the DOT
Privacy Act system of records notice for the Federal Docket Management
System (FDMS) in the Federal Register published on January 17, 2008,
(73 FR 3316) at https://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
Rulemaking Analysis and Notices
Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review) and DOT Regulatory
Policies and Procedures
Under E.O. 12866 (58 FR 51735, October 4, 1993), supplemented by
E.O.13563 (76 FR 3821, January 18, 2011) and DOT policies and
procedures, MarAd must determine whether a regulatory action is
``significant,'' and therefore subject to OMB review and the
requirements of the E.O. The Order defines ``significant regulatory
action'' as one likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal government or communities. (2) Create a serious
inconsistency or otherwise interfere with an action taken or planned by
another Agency. (3) Materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof. (4) Raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the E.O.
MarAd has determined that this final rule is not considered a
significant regulatory action under section 3(f) of Executive Order
12866 and, therefore, it was not reviewed by the Office of Management
and Budget. This final rule will not result in an annual effect on the
economy of $100 million or more. It also is not considered a major rule
for purposes of Congressional review under Public Law 104-121. The rule
is also not significant under the Regulatory Policies and Procedures of
the Department of Transportation (44 FR 11034, February 26, 1979). The
costs and overall economic impact of this rulemaking do not require
further analysis.
Executive Order 13132 (Federalism)
We analyzed this rulemaking in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism'') and have
determined that it does not have sufficient Federalism implications to
warrant the preparation of a Federalism summary impact statement. This
rule has no substantial effect on the States, or on the current
Federal-State relationship, or on the current distribution of power and
responsibilities among the various local officials. Nothing in this
document preempts any State law or regulation. Therefore, MarAd did not
consult with State and local officials because it was not necessary.
Executive Order 13175 (Consultation and Coordination With Indian Tribal
Governments)
MarAd does not believe that this final rule will significantly or
uniquely affect the communities of Indian tribal governments when
analyzed under the principles and criteria contained in Executive Order
13175 (Consultation and Coordination with Indian Tribal Governments).
Therefore, the funding and consultation requirements of this Executive
Order do not apply.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this rule.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 requires MarAd to assess
whether this rule would have a significant economic impact on a
substantial number of small entities and to minimize any adverse
impact. MarAd certifies that this rule will not have a significant
economic impact on a substantial number of small entities.
Environmental Assessment
We have analyzed this final rule for purposes of compliance with
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)
and have concluded that under the categorical exclusions provision in
section 4.05 of Maritime Administrative Order (MAO) 600-1, ``Procedures
for Considering Environmental Impacts,'' 50 FR 11606 (March 22, 1985),
neither the preparation of an Environmental Assessment, an
Environmental Impact Statement, nor a Finding of No Significant Impact
for this rulemaking is required. This rulemaking has no environmental
impact.
Executive Order 13211 (Energy Supply, Distribution, or Use)
MarAd has determined that the proposed rule would not significantly
affect energy supply, distribution, or use. Therefore, no Statement of
Energy Effects is required.
Executive Order 13045 (Protection of Children)
Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks, requires agencies issuing ``economically
significant'' rules that involve an environmental health or safety risk
that may disproportionately affect children, to include an evaluation
of the regulation's environmental health and safety effects on
children. As discussed previously, this proposed rule is not
economically significant, and it would cause no environmental or health
risk that disproportionately affects children.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminates
ambiguity, and reduce burden.
Executive Order 12630 (Taking of Private Property)
This rule would not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and
[[Page 5220]]
Interference with Constitutionally Protected Property Rights.
National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act (15 U.S.C. 272
note) requires Federal agencies proposing to adopt Government technical
standards to consider whether voluntary consensus standards are
available. If the Agency chooses to adopt its own standards in place of
existing voluntary consensus standards, it must explain its decision in
a separate statement to OMB. MarAd determined that there are no
voluntary national consensus standards related to the filing of the
seamen's claims, administrative actions and Admiralty Extension Act
claims addressed by this regulation.
International Trade Impact Assessment
This rule is not expected to contain standards-related activities
that create unnecessary obstacles to the foreign commerce of the United
States.
Privacy Impact Assessment
Section 522(a)(5) of the Transportation, Treasury, Independent
Agencies, and General Government Appropriations Act, 2005 (Pub. L. 108-
447, div. H, 118 Stat. 2809 at 3268) requires the Department of
Transportation and certain other Federal agencies to conduct a privacy
impact assessment of each proposed rule that will affect the privacy of
individuals. Claims submitted under this rule will be treated the same
as all legal claims received by MarAd. The processing and treatment of
any claim within the scope of this rulemaking by MarAd shall comply
with all legal, regulatory and policy requirements regarding privacy.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), Federal agencies must obtain approval from OMB for each
collection of information they conduct, sponsor, or require through
regulations. This NPRM proposes regulatory clarification to seamen's
claims, administrative action procedures and Admiralty Extension Claim
procedures. This rulemaking contains no new or amended information
collection or recordkeeping requirements that have been approved or
require approval by the Office of Management and Budget.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 requires Agencies to
evaluate whether an Agency action would result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $141.3 million or more (as adjusted for inflation)
in any 1 year, and if so, to take steps to minimize these unfunded
mandates. This proposed rule does not impose unfunded mandates under
the Unfunded Mandates Reform Act of 1995. It does not result in costs
of $141.3 million or more to either State, local, or tribal
governments, in the aggregate, or to the private sector, and is the
least burdensome alternative that achieves the objectives of the rule.
Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.
List of Subjects in 46 CFR Part 327
Administrative practice and procedures, Claims, Seaman.
Accordingly, the Maritime Administration proposes to revise part
327 of 46 CFR, to read as follows:
PART 327--SEAMEN'S CLAIMS; ADMINISTRATIVE ACTION AND LITIGATION
Sec.
Subpart A--Seamen's Claims; Administrative Action and Litigation
327.1 Purpose.
327.2 Statutory provisions.
327.3 Required claims submission.
327.4 Claim requirements.
327.5 Filing claims.
327.6 Notice of allowance or disallowance.
327.7 Administrative disallowance presumption.
327.8 Court action.
Subpart B--Admiralty Extension Act Claims Administrative Action and
Litigation
327.20 Admiralty Jurisdiction Extension Claims: Required claims.
327.21 Definitions.
327.22 Who may present claims.
327.23 Insurance and other subrogated claims.
327.24 Actions by claimant.
327.25 Contents of a claim.
327.26 Evidence supporting a claim.
327.27 Proof of amount claimed for personal injury.
327.28 Proof of amount claimed for loss of, or damage to, property.
327.29 Effect of other payments to claimant.
327.30 Statute of limitations for AEA and claim requirements.
327.31 Statute of limitations not tolled by administrative
consideration of claims.
327.32 Notice of claim acceptance or denial.
327.33 Claim denial presumption.
327.34 Court action.
Subpart C--Other Admiralty Claims
327.40 Other Admiralty Claims.
327.41 Definitions.
327.42 Who may present claims.
327.43 Insurance and other subrogated claims.
327.44 Actions by claimant.
327.45 Contents of a claim.
327.46 Evidence supporting a claim.
327.47 Proof of amount claimed for personal injury.
327.48 Proof of amount claimed for loss of, or damage to, property.
327.49 Effect of other payments to claimant.
327.50 Statute of limitations for other admiralty claims and claim
requirements.
327.51 Statute of limitations not tolled by administrative
consideration of claims.
327.52 Notice of claim acceptance or denial.
Authority: 46 U.S.C. Chapters 301-309.
Subpart A--Clarification Act Claims: Seamen's Claims;
Administrative Action and Litigation
Sec. 327.1 Purpose.
This part prescribes rules and regulations pertaining to the filing
of claims designated in Sec. 327.3 of this part and the administrative
allowance, or disallowance (actual and presumed), of such claims, in
whole or in part, filed by officers and members of crews (hereafter
referred to as ``seamen'') employed on vessels as employees of the
United States through the National Shipping Authority (NSA), Maritime
Administration (MarAd), or successor.
Sec. 327.2 Statutory provisions.
(a) These regulations are enacted to implement the administrative
claims procedures set forth in 50 U.S.C. App. 1291(a).
Sec. 327.3 Required claims submission.
All claims specified in 50 U.S.C. App. 1291(a) (2) and (3), quoted
in Sec. 327.2(b) of this part, shall be submitted for administrative
consideration, as provided in Sec. Sec. 327.4 and 327.5 of this part,
prior to institution of court action thereon.
Sec. 327.4 Claim requirements.
(a) Form. The claim may be in any form and shall be
(1) In writing,
(2) Designated as a claim,
(3) Disclose that the object sought is the administrative allowance
of the claim,
(4) Comply with the requirements of this part, and
(5) Filed as provided in Sec. 327.5 of this part.
[[Page 5221]]
(6) The claim must be signed or attested to by the claimant. The
statements made in the claim should be made to the best of the
knowledge of the claimant and are subject to the provision of 18 U.S.C.
Sec. Sec. 287 and 1001 and all other penalty provisions for making
false, fictitious, or fraudulent claims, statements or entries, or
falsifying, concealing, or covering up a material fact in any matter
within the jurisdiction of any department or agency of the United
States. Any lawsuits filed contrary to the provisions of section 5 of
the Suits in Admiralty Act, as amended by Public Law 877, 81st Congress
(64 Stat. 1112; 46 U.S.C. Sec. 30901 et seq.), shall not be in
compliance with the requirements of this part.
(b) Contents. Each claim shall include the following information:
(1) With respect to the seaman:
(i) Name;
(ii) Mailing address;
(iii) Date of birth;
(iv) Legal residence address;
(v) Place of birth; and
(vi) Merchant mariner license or document number and social
security number.
(2) With respect to the basis for the claim:
(i) Name of vessel on which the seaman was serving when the
incident occurred that is the basis for the claim;
(ii) Place where the incident occurred;
(iii) Time of incident--year, month and day, and the precise time
of day, to the minute, where possible;
(iv) Narrative of the facts and circumstances surrounding the
incident, including a statement explaining why the United States is
liable for this claim;
(v) Pictures, video recordings and other physical evidence related
to the case and
(vi) The names, addresses, and telephone numbers, if available, of
others who can supply factual information about the incident and its
consequences.
(3) A sum certain dollar amount of claim, which includes a total
for all amounts sought. The claim shall explain the amounts sought for:
(i) Past loss of earnings or earning capacity;
(ii) Future loss of earnings or earning capacity;
(iii) Medical expenses paid out of pocket;
(iv) Pain and suffering; and
(v) Any other loss arising out of the incident (describe).
(4) All medical and clinical records of physicians and hospitals
related to a seaman's claim for injury, illness, or death shall be
attached. If the claimant does not have a copy of each record, the
claimant shall identify every physician and hospital having records
relating to the seaman and shall provide written authorization for
MarAd to obtain all such records. The claim shall also include the
number of days the seaman worked as a merchant mariner and the earnings
received for the current calendar year, as well as for the two
preceding calendar years.
(5) If the claim does not involve a seaman's death, the following
information shall be submitted with the claim:
(i) Date the seaman signed a reemployment register as a merchant
mariner;
(ii) Copy of the medical fit-for-duty certificate issued to the
seaman;
(iii) Date and details of next employment as a seaman; and
(iv) Date and details of next employment as other than a seaman.
(6) If the claim is for other than personal injury, illness or
death, the claim shall provide all supporting information concerning
the nature and dollar amount of the loss.
Sec. 327.5 Filing claims.
(a) Claims may be filed by or on behalf of seamen or their
surviving dependents or beneficiaries, or by their legal
representatives. Claims shall be filed either by personal delivery or
by registered mail.
(b) The claimant shall send the claim directly to the Chief,
Division of Marine Insurance, Maritime Administration, Department of
Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590. A copy
of each claim shall be filed with the Ship Manager or General Agent of
the vessel with respect to which such claim arose.
Sec. 327.6 Notice of allowance or disallowance.
MarAd shall give prompt notice in writing of the allowance or
disallowance of each claim, in whole or in part, by mail to the last
known address of, or by personal delivery to, the claimant or the
claimant's legal representative. In the case of administrative
disallowance, in whole or in part, such notice shall contain a brief
statement of the reason for such disallowance.
Sec. 327.7 Administrative disallowance presumption.
If MarAd fails to give written notice of allowance or disallowance
of a claim in accordance with Sec. 327.6 of this part within sixty
(60) calendar days following the date of the receipt of such claim by
the proper person designated in Sec. 327.5 of this part, such claim
shall be presumed to have been ``administratively disallowed,'' within
the meaning in section 1(a) of 50 U.S.C. App. Sec. 1291(a), quoted in
section 327.2(b) of this part.
Sec. 327.8 Court action.
No seamen, having a claim specified in subsections (2) and (3) of
section 1(a) of 50 U.S.C. App. Sec. 1291(a), their surviving
dependents and beneficiaries, or their legal representatives shall
institute a court action for the enforcement of such claim unless such
claim shall have been prepared and filed in accordance with Sec. Sec.
327.4 and 327.5 of this part and shall have been administratively
disallowed in accordance with Sec. 327.6 or 327.7 of this part.
This part prescribes rules and regulations pertaining to the filing
of claims designated in Sec. 327.3 of this part and the administrative
allowance, or disallowance (actual and presumed), of such claims, in
whole or in part, filed by officers and members of crews (hereafter
referred to as ``seamen'') employed on vessels through the National
Shipping Authority (NSA), Maritime Administration (MarAd), or successor
organization.
Subpart B--Admiralty Extension Act Claims; Administrative Action
and Litigation
Sec. 327.20 Admiralty Jurisdiction Extension Claims: Required claims.
(a) Pursuant to 46 U.S.C. 30101(c) of the Admiralty Extension Act
(AEA), administrative claims involving the extension of admiralty
jurisdiction to cases of damage or injury on land caused by a Maritime
Administration vessel on navigable waters must be presented in writing
to the Maritime Administration in accordance with Sec. 327.20-34 of
this part prior to institution of a court action thereon.
(b) A civil action against the United States for injury or damage
done or consummated on land by a vessel on navigable waters may not be
brought until the earlier occurrence of either the denial of the claim
by the Maritime Administration or the presumptive denial of the claim
which arises 6 months after the claim has been presented in writing to
the Maritime Administration. 46 U.S.C. 30101(c)(2). Note that the 6
month period of review will not begin until a valid claim is filed
pursuant to Sec. 327.25.
(c) Proceedings against the United States pursuant to the
requirements of the AEA and these regulations is the exclusive remedy
available against the
[[Page 5222]]
United States of America, acting by and through the Maritime
Administration, with respect to such injuries and damages.
Sec. 327.21 Definitions.
(a) Accrual Date. The day on which the alleged wrongful act or
omission results in injury or damage for which a claim is made.
(b) Claim. A written notification of an incident, signed by the
claimant, describing the incident and explaining why the United States
is liable. The claim shall be accompanied by a demand for the payment
of a sum certain of money, with a statement as to how that sum certain
was calculated and all documents supporting the amount claimed. Where
damages for medical injuries are made, the doctor's statement relating
the injuries to the accident should be attached as well as medical
release forms for each treating physician, hospital, and medical care
provider.
Sec. 327.22 Who may present claims.
(a) General rules:
(1) A claim for property loss or damage may be presented by anyone
having an interest in the property, including an insurer or other
subrogee.
(2) A claim for personal injury may be presented by the person
injured.
(3) A claim based on death may be presented by the executor or
administrator of the decedent's estate, or any other person legally
entitled to assert such a claim under local law. The claimant's status
must be stated in the claim.
(4) A claim for medical, hospital, or burial expenses may be
presented by any person who by reason of family relationship has, in
fact, incurred the expenses.
(b) A joint claim must be presented in the names of and signed by,
the joint claimants, and the settlement will be made payable to the
joint claimants.
(c) A claim may be presented by a duly authorized agent, legal
representative or survivor, if it is presented in the name of the
claimant. If the claim is not signed by the claimant, the agent, legal
representative, or survivor shall indicate their title or legal
capacity and provide evidence of their authority to present the claim.
(d) Where the same claimant has a claim for damage to or loss of
property and a claim for personal injury or a claim based on death
arising out of the same incident, they must be combined in one claim.
Sec. 327.23 Insurance and other subrogated claims.
(a) The claims of an insured (subrogor) and an insurer (subrogee)
for damages arising out of the same incident constitute a single claim.
(b) An insured (subrogor) and an insurer (subrogee) may file a
claim jointly or separately. If the insurer has fully reimbursed the
insured, payment will only be made to the insurer. If separate claims
are filed, the settlement will be made payable to each claimant to the
extent of that claimant's undisputed interest. If joint claims are
filed, the settlement will be sent to the insurer.
(c) Each claimant shall include with a claim, a written disclosure
concerning insurance coverage including:
(1) The names and addresses of all insurers;
(2) The kind and amount of insurance;
(3) The policy number;
(4) Whether a claim has been or will be presented to an insurer,
and, if so, the amount of that claim; and whether the insurer has paid
the claim in whole or in part, or has indicated payment will be made.
(d) Each subrogee shall substantiate an interest or right to file a
claim by appropriate documentary evidence and shall support the claim
as to liability and measure of damages in the same manner as required
of any other claimant. Documentary evidence of payment to a subrogor
does not constitute evidence of liability of the United States or
conclusive evidence of the amount of damages. The Maritime
Administration makes an independent determination on the issues of fact
and law based upon the evidence of record.
Sec. 327.24 Actions by claimant.
(a) Form of claim. The claim must meet the requirements of Sec.
327.24.
(b) Presentation. The claim must be presented in writing to the
Office of Chief Counsel, Attn. Chief Counsel, Maritime Administration,
Department of Transportation, 1200 New Jersey Ave SE., Washington, DC
20590-0001.
Sec. 327.25 Contents of a claim.
(a) A valid claim will contain the following:
(1) Identification of the Maritime Administration as the agency
whose act or omission gave rise to the claim;
(2) The full name and mailing address of the claimant. If this
mailing address is not claimant's residence, the claimant shall also
include residence address;
(3) The date, time, and place of the incident giving rise to the
claim;
(4) The amount claimed, in a sum certain, supported by independent
evidence of property damage or loss, personal injury, or death, as
applicable together with supporting medical records and a HIPPA
compliant medical waiver for each treating physician or hospital;
(5) A detailed description of the incident giving rise to the claim
and the factual basis upon which it is claimed the Maritime
Administration is liable for the claim;
(6) A description of any property damage or loss, including the
identity of the owner, if other than the claimant, as applicable;
(7) The nature and extent of the injury, as applicable;
(8) The full name, title, if any, and address of any witness to the
incident and a brief statement of the witness' knowledge of the
incident;
(9) A description of any insurance carried by the claimant or owner
of the property and the status of any insurance claim arising from the
incident; and
(10) An agreement by the claimant to accept the total amount
claimed in full satisfaction and final settlement of the claim, lien or
subrogation claim on the claimed amount, or any assignment of the
claim.
(b) A claimant or duly authorized agent or legal representative
must sign in ink a claim and any amendment to that claim. The claim
shall include a statement that the information provided is true and
correct to the best of the claimant's knowledge, information, and
belief. If the person's signature does not include the first name,
middle initial, if any, and surname, that information must be included
in the claim. A married woman must sign her claim in her given name,
e.g., ``Mary A. Doe,'' rather than ``Mrs. John Doe.''
Sec. 327.26 Evidence supporting a claim.
(a) The claimant shall present any evidence in the claimant's
possession that supports the claim. This evidence shall include, if
available, statements of witnesses, accident or casualty reports,
photographs and drawings.
(b) Notwithstanding anything in these regulations, the claimant
shall provide such additional reasonable documents and evidence as
requested by the Maritime Administration with respect to the claim.
Failure to respond to reasonable requests for additional information
and documentation can result in a determination that a valid claim has
not been submitted.
Sec. 327.27 Proof of amount claimed for personal injury.
The following evidence must be presented when appropriate in
claims:
(a) Itemized medical, hospital, and burial bills.
[[Page 5223]]
(b) A written report by the attending physician including:
(1) The nature and extent of the injury and the treatment;
(2) The necessity and reasonableness of the various medical
expenses incurred;
(3) Duration of time injuries prevented or limited employment;
(4) Past, present, and future limitations on employment;
(5) Duration and extent of pain and suffering and of any disability
or physical disfigurement;
(6) A current prognosis;
(7) Any anticipated medical expenses;
(8) Any past medical history of the claimant relevant to the
particular injury alleged; and
(9) If required by the Maritime Administration, an examination by
an independent medical facility or physician to provide independent
medical evidence against which to evaluate the written report of the
claimant's physician. The Maritime Administration determines the need
for this examination, makes mutually convenient arrangements for such
an examination, and bears the costs thereof.
(c) All hospital records or other medical documents from either
this injury or any relevant past injury.
(d) If the claimant is employed, a written statement by the
claimant's employer certifying the claimant's:
(1) Age;
(2) Occupation;
(3) Hours of employment;
(4) Hourly rate of pay or weekly salary;
(5) Time lost from work as a result of the incident; and
(6) Claimant's actual period of employment, full-time or part-time,
and any effect of the injury upon such employment to support claims for
lost earnings.
(e) If the claimant is self-employed, written statements, or other
evidence showing:
(1) The amount of earnings actually lost; and
(2) The Federal tax return if filed for the three previous years.
(f) If the claim arises out of injuries to a person providing
services to the claimant, statement of the cost necessarily incurred to
replace the services to which claimant is entitled under law.
Sec. 327.28 Proof of amount claimed for loss of, or damage to,
property.
The following evidence must be presented when appropriate:
(a) For each particular lost item, evidence of its value such as a
bill of sale and a written appraisal, or two written appraisals, from
separate disinterested dealers or brokers, market quotations,
commercial catalogs, or other evidence of the price at which like
property can be obtained in the community. The Maritime Administration
may waive these requirements when circumstances warrant. The reasonable
cost of any appraisal may be included as an element of damage if not
deductible from any bill submitted to claimant.
(b) For each particular damaged item which can be economically
repaired, evidence of cost of repairs such as a receipted bill and one
estimate, or two estimates, from separate disinterested repairmen. The
Maritime Administration may waive these requirements when circumstances
warrant. The reasonable cost of any estimate may be included as an
element of damage if not deductible from any repair bill submitted to
claimant.
(c) For any claim for property damage which may result in payment
in excess of $20,000.00, a survey or appraisal shall be performed as
soon as practicable after the damage accrues, and, unless waived in
writing, shall be performed jointly with a government representative.
(d) If the item is so severely damaged that it cannot be
economically repaired or used, it shall be treated as a lost item.
(e) If a claim includes loss of earnings or use during repairs to
the damaged property, the following must also be furnished and
supported by competent evidence:
(1) The date the property was damaged;
(2) The name and location of the repair facility;
(3) The beginning and ending dates of repairs and an explanation of
any delay between the date of damage and the beginning date;
(4) A complete description of all repairs performed, segregating
any work performed for the owner's account and not attributable to the
incident involved, and the costs thereof;
(5) The date and place the property was returned to service after
completion of repairs, and an explanation, if applicable, of any delay;
(6) Whether or not a substitute for the damaged property was
available. If a substitute was used by the claimant during the time of
repair, an explanation of the necessity of using the substitute, how it
was used, and for how long, and the costs involved. Any costs incurred
that would have been similarly incurred by the claimant in using the
damaged property must be identified;
(7) Whether or not during the course of undergoing repairs the
property would have been used, and an explanation submitted showing the
identity of the person who offered that use, the terms of the offer,
time of prospective service, and rate of compensation; and
(8) If at the time of damage the property was under charter or
hire, or was otherwise employed, or would have been employed, the
claimant shall submit a statement of operating expenses that were, or
would have been, incurred. This statement shall include wages and all
bonuses which would have been paid, the value of fuel and the value of
consumable stores, separately stated, which would have been consumed,
and all other costs of operation which would have been incurred
including, but not limited to, license and parking fees, personnel
expenses, harbor fees, wharfage, dockage, shedding, stevedoring,
towage, pilotage, inspection, tolls, lockage, anchorage and moorage,
grain elevation, storage, and customs fees.
(f) For each item which is lost, actual or constructive, proof of
ownership.
Sec. 327.29 Effect of other payments to claimant.
The total amount to which the claimant may be entitled is normally
computed as follows:
(a) The total amount of the loss, damage, or personal injury
suffered for which the United States is liable, less any payment the
claimant has received from the following sources:
(1) The military member or civilian employee who caused the
incident;
(2) The military member's or civilian employee's insurer; and
(3) Any joint tort-feasor or insurer.
(b) No deduction is generally made for any payment the claimant has
received by way of voluntary contributions, such as donations of
charitable organizations.
Sec. 327.30 Statute of limitations for AEA and claim requirements.
A civil suit must be filed within two years of the Accrual Date. No
civil suit may be brought until the earlier occurrence of either the
denial of a claim or the presumptive denial of the claim after 6 months
from the date the claim was properly presented in writing to the
Maritime Administration.
Sec. 327.31 Statute of limitations not tolled by administrative
consideration of claims.
The statute of limitations for filing a civil action under 46
U.S.C. Sec. 30101(b) is not tolled by MarAd's administrative
consideration of a claim.
[[Page 5224]]
Sec. 327.32 Notice of claim acceptance or denial.
The Maritime Administration shall give prompt notice in writing of
the acceptance or denial of each claim in whole or in part, by mail to
the last known address of, or by personal delivery to, the claimant or
the claimant's legal representative. In the case of denial, such notice
shall contain a brief statement of the reason for such a denial.
Sec. 327.33 Claim denial presumption.
If the Maritime Administration fails to give written notice of
acceptance or denial of a claim in accordance with Sec. 327.30 of this
part within 6 months following the date of receipt of such a claim by
the proper person designated in Sec. 327.24(b) of this part, such
claim shall be presumed to have been denied by the Maritime
Administration.
Sec. 327.34 Court action.
No person, surviving dependent or beneficiary, or legal
representative, having a claim specified under 46 U.S.C. 30101(a)
against the Maritime Administration, shall institute a court action
against the Maritime Administration unless an administrative claim has
previously been properly presented and filed in accordance with Sec.
327.22, Sec. 327.23, and Sec. 327.24 of this part, and such
administrative claim has been subsequently denied in accordance with
Sec. 327.32 or Sec. 327.33 of this part.
Subpart C--Other Admiralty Claims.
Sec. 327.40 Other Admiralty Claims.
(a) Admiralty claims caused by United States owned and operated
vessels on navigable waters or otherwise that are not covered under the
Clarification Act (50 U.S.C. app. 1291(a)), the Admiralty Extension Act
(46 U.S.C. 30101) or the Contracts Disputes Act (41 U.S.C. 601 et seq.)
may be filed with the Maritime Administration in accordance with Sec.
327.40-52 of this part.
(b) A civil action against the United States for admiralty claims
caused by United States owned and operated vessels on navigable waters
or otherwise that are not covered under the Clarification Act (50
U.S.C. app. 1291(a)), the Admiralty Extension Act (46 U.S.C. 30101) or
the Contracts Disputes Act (41 U.S.C. 601 et seq.) may be brought
without the filing of an administrative claim. This Part III sets forth
the optional procedure for filing such claims with the Maritime
Administration in advance of litigation. Once litigation is filed, the
authority to handle such claims is vested with the Justice Department,
not the agency.
(c) Proceeding against the United States pursuant to the
requirements this Part III is not a requirement for filing suit against
the United States of America, acting by and through the Maritime
Administration, with respect to such admiralty claims.
Sec. 327.41 Definitions.
(a) Accrual Date. The day on which the alleged wrongful act or
omission results in injury or damage for which a claim is made.
(b) Claim. A written notification of an incident, signed by the
claimant, describing the incident and explaining why the United States
is liable. The claim shall be accompanied by a demand for the payment
of a sum certain of money, with a statement as to how that sum certain
was calculated and all documents supporting the amount claimed. Where
damages for medical injuries are made, the doctor's statement relating
the injuries to the accident should be attached as well as medical
release forms for each treating physician, hospital, and medical care
provider.
Sec. 327.42 Who may present claims.
(a) General rules:
(1) A claim for property loss or damage may be presented by anyone
having an interest in the property, including an insurer or other
subrogee.
(2) A claim for personal injury may be presented by the person
injured.
(3) A claim based on death may be presented by the executor or
administrator of the decedent's estate, or any other person legally
entitled to assert such a claim under local law. The claimant's status
must be stated in the claim.
(4) A claim for medical, hospital, or burial expenses may be
presented by any person who by reason of family relationship has, in
fact, incurred the expenses.
(5) A joint claim must be presented in the names of and signed by,
the joint claimants, and the settlement must be made payable to the
joint claimants.
(b) A claim may be presented by a duly authorized agent, legal
representative or survivor, if it is presented in the name of the
claimant. If the claim is not signed by the claimant, the agent, legal
representative, or survivor shall indicate their title or legal
capacity and provide evidence of their authority to present the claim.
(c) Where the same claimant has a claim for damage to or loss of
property and a claim for personal injury or a claim based on death
arising out of the same incident, they must be combined in one claim.
Sec. 327.43 Insurance and other subrogated claims.
(a) The claims of an insured (subrogor) and an insurer (subrogee)
for damages arising out of the same incident constitute a single claim.
(b) An insured (subrogor) and an insurer (subrogee) may file a
claim jointly or separately. If the insurer has fully reimbursed the
insured, payment will only be made to the insurer. If separate claims
are filed, the settlement will be made payable to each claimant to the
extent of that claimant's undisputed interest. If joint claims are
filed, the settlement will be sent to the insurer.
(c) Each claimant shall include with a claim, a written disclosure
concerning insurance coverage including:
(1) The names and addresses of all insurers;
(2) The kind and amount of insurance;
(3) The policy number; and
(4) Whether a claim has been or will be presented to an insurer,
and, if so, the amount of that claim; and whether the insurer has paid
the claim in whole or in part, or has indicated payment will be made.
(d) Each subrogee shall substantiate an interest or right to file a
claim by appropriate documentary evidence and shall support the claim
as to liability and measure of damages in the same manner as required
of any other claimant. Documentary evidence of payment to a subrogor
does not constitute evidence of liability of the United States or
conclusive evidence of the amount of damages. The Maritime
Administration makes an independent determination on the issues of fact
and law based upon the evidence of record.
Sec. 327.44 Actions by claimant.
(a) Form of claim. The claim should meet the requirements of Sec.
327.44 of this part.
(b) Presentation. The claim must be presented in writing to the
Office of Chief Counsel, Attn: Chief Counsel, Maritime Administration,
Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC
20590-0001.
Sec. 327.45 Contents of a claim.
(a) A properly filed claim shall include the following, however,
any of the following requirements may be waived by the Maritime
Administration:
(1) Identification of the Maritime Administration as the agency
whose act or omission gave rise to the claim;
(2) The full name and mailing address of the claimant. If this
mailing address is not claimant's residence, the claimant shall also
include residence address;
(3) The date, time, and place of the incident giving rise to the
claim;
[[Page 5225]]
(4) The amount claimed, in a sum certain, supported by independent
evidence of property damage or loss, personal injury, or death, as
applicable together with supporting medical records and a HIPPA
compliant medical waiver for each treating physician, hospital, or
medical provider;
(5) A detailed description of the incident giving rise to the claim
and the factual basis upon which it is claimed the United States is
liable for the claim;
(6) A description of any property damage or loss, including the
identity of the owner, if other than the claimant, as applicable;
(7) The nature and extent of the injury, as applicable;
(8) The full name, title, if any, and address of any witness to the
incident and a brief statement of the witness' knowledge of the
incident;
(9) A description of any insurance carried by the claimant or owner
of the property and the status of any insurance claim arising from the
incident; and
(10) An agreement by the claimant to accept the total amount
claimed in full satisfaction and final settlement of the claim, lien,
or subrogation claim on the claimed amount, or any assignment of the
claim.
(b) A claimant or duly authorized agent or legal representative
must sign in ink a claim and any amendment to that claim. The claim
shall include a statement that the information provided is true and
correct to the best of the claimant's knowledge, information, and
belief. If the person's signature does not include the first name,
middle initial, if any, and surname, that information must be included
in the claim. A married woman must sign her claim in her given name,
e.g., ``Mary A. Doe,'' rather than ``Mrs. John Doe.''
Sec. 327.46 Evidence supporting a claim.
(a) The claimant should present any evidence in the claimant's
possession that supports the claim. This evidence shall include, if
available, statements of witnesses, accident or casualty reports,
photographs and drawings.
(b) Notwithstanding anything in these regulations, the claimant
shall provide such additional documents and evidence as requested by
the Maritime Administration with respect to the claim. Failure to
respond to reasonable requests for additional information and
documentation can result in a determination that a proper claim has not
been submitted.
Sec. 327.47 Proof of amount claimed for personal injury.
The following evidence must be presented when appropriate in
claims:
(a) Itemized medical, hospital, and burial bills.
(b) A written report by the attending physician including:
(1) The nature and extent of the injury and the treatment;
(2) The necessity and reasonableness of the various medical
expenses incurred;
(3) Duration of time injuries prevented or limited employment;
(4) Past, present, and future limitations on employment;
(5) Duration and extent of pain and suffering and of any disability
or physical disfigurement;
(6) A current prognosis;
(7) Any anticipated medical expenses;
(8) Any past medical history of the claimant relevant to the
particular injury alleged; and
(9) At the request of the Maritime Administration, an examination
by an independent medical facility or physician may be required to
provide independent medical evidence against which to evaluate the
written report of the claimant's physician. The Maritime Administration
determines the need for this examination, makes mutually convenient
arrangements for such an examination, and bears the costs thereof.
(c) All hospital records or other medical documents from either
this injury or any relevant past injury.
(d) If the claimant is employed, a written statement by the
claimant's employer certifying the claimant's:
(1) Age;
(2) Occupation;
(3) Hours of employment;
(4) Hourly rate of pay or weekly salary;
(5) Time lost from work as a result of the incident; and
(6) Claimant's actual period of employment, full-time or part-time,
and any effect of the injury upon such employment to support claims for
lost earnings.
(e) If the claimant is self-employed, written statements, or other
evidence showing:
(1) The amount of earnings actually lost, and
(2) The Federal tax return if filed for the three previous years.
(f) If the claim arises out of injuries to a person providing
services to the claimant, statement of the cost necessarily incurred to
replace the services to which claimant is entitled under law.
Sec. 327.48 Proof of amount claimed for loss of, or damage to,
property.
The following evidence should be presented when appropriate:
(a) For each particular lost item, evidence of its value such as a
bill of sale and a written appraisal, or two written appraisals, from
separate disinterested dealers or brokers, market quotations,
commercial catalogs, or other evidence of the price at which like
property can be obtained in the community. The Maritime Administration
may waive these requirements when circumstances warrant. The reasonable
cost of any appraisal may be included as an element of damage if not
deductible from any bill submitted to claimant.
(b) For each particular damaged item which can be economically
repaired, evidence of cost of repairs such as a receipted bill and one
estimate, or two estimates, from separate disinterested repairmen. The
Maritime Administration may waive these requirements when circumstances
warrant. The reasonable cost of any estimate may be included as an
element of damage if not deductible from any repair bill submitted to
claimant.
(c) For any claim which may result in payment in excess of
$20,000.00, a survey or appraisal shall be performed as soon as
practicable after the damage accrues, and, unless waived in writing,
shall be performed jointly with a government representative.
(d) If the item is so severely damaged that it cannot be
economically repaired or used, it shall be treated as a lost item.
(e) If a claim includes loss of earnings or use during repairs to
the damaged property, the following must also be furnished and
supported by competent evidence:
(1) The date the property was damaged;
(2) The name and location of the repair facility;
(3) The beginning and ending dates of repairs and an explanation of
any delay between the date of damage and the beginning date;
(4) A complete description of all repairs performed, segregating
any work performed for the owner's account and not attributable to the
incident involved, and the costs thereof;
(5) The date and place the property was returned to service after
completion of repairs, and an explanation, if applicable, of any delay;
(6) Whether or not a substitute for the damaged property was
available. If a substitute was used by the claimant during the time of
repair, an explanation of the necessity of using the substitute, how it
was used, and for how long, and the costs involved. Any costs incurred
that would have been similarly incurred by the claimant in using the
damaged property must be identified;
[[Page 5226]]
(7) Whether or not during the course of undergoing repairs the
property would have been used, and an explanation submitted showing the
identity of the person who offered that use, the terms of the offer,
time of prospective service, and rate of compensation; and
(8) If at the time of damage the property was under charter or
hire, or was otherwise employed, or would have been employed, the
claimant shall submit a statement of operating expenses that were, or
would have been, incurred. This statement shall include wages and all
bonuses which would have been paid, the value of fuel and the value of
consumable stores, separately stated, which would have been consumed,
and all other costs of operation which would have been incurred
including, but not limited to, license and parking fees, personnel
expenses, harbor fees, wharfage, dockage, shedding, stevedoring,
towage, pilotage, inspection, tolls, lockage, anchorage and moorage,
grain elevation, storage, and customs fees.
(f) For each item which is lost, actual or constructive, proof of
ownership.
Sec. 327.49 Effect of other payments to claimant.
The total amount to which the claimant may be entitled is normally
computed as follows:
(a) The total amount of the loss, damage, or personal injury
suffered for which the United States is liable, less any payment the
claimant has received from the following sources:
(1) The military member or civilian employee who caused the
incident;
(2) The military member's or civilian employee's insurer; and
(3) Any joint tort-feasor or insurer.
(b) No deduction is generally made for any payment the claimant has
received by way of voluntary contributions, such as donations of
charitable organizations.
Sec. 327.50 Statute of limitations for other admiralty claims and
claim requirements.
A civil suit must be filed within the statute of limitations of the
specific admiralty claim. The start date for such statute of
limitations determinations shall be the Accrual Date.
Sec. 327.51 Statute of limitations not tolled by administrative
consideration of claims.
The statute of limitations for filing a civil action under 46
U.S.C. 30101(b) is not tolled by the Maritime Administration's
administrative consideration of a claim.
Sec. 327.52 Notice of claim acceptance or denial.
The Maritime Administration shall give prompt notice in writing of
the acceptance or denial of each claim in whole or in part, by mail to
the last known address of, or by personal delivery to, the claimant or
the claimant's legal representative. In the case of denial, such notice
shall contain a brief statement of the reason for such a denial.
Dated: January 27, 2012.
By Order of the Maritime Administrator.
Julie Agarwal,
Secretary, Maritime Administration.
[FR Doc. 2012-2253 Filed 2-1-12; 8:45 am]
BILLING CODE 4910-81-P