Administrative Claims, 83687-83701 [2016-25554]

Agencies

• DEPARTMENT OF DEFENSE
• Department of the Air Force

[Federal Register Volume 81, Number 225 (Tuesday, November 22, 2016)]
[Rules and Regulations]
[Pages 83687-83701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25554]


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DEPARTMENT OF DEFENSE

Department of the Air Force

32 CFR Part 842

[Docket ID: USAF-2015-0003]
RIN 0701-AA79


Administrative Claims

AGENCY: Department of the Air Force, DoD.

ACTION: Final rule.

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SUMMARY: This rule contains amendments for policy changes and 
clarification and deletions for the Air Force guidance on 
Administrative claims and Personnel and Carrier Recovery Claims. The 
rule relates to the Air Force processes for claims filed for and 
against the Air Force as well as Air Force processes for filing 
personnel and carrier recovery claims.

DATES: This rule is effective on December 22, 2016.

FOR FURTHER INFORMATION CONTACT: Mr. Daniel Lemieux (AFLOA/JACC), 1500 
West Perimeter Rd, Ste 1700, Joint Base Andrews, MD 20762, (240) 612-
4646, daniel.g.lemieux.civ@mail.mil.

SUPPLEMENTARY INFORMATION: On March 30, 2016 (81 FR 17621-17635), the 
Department of the Air Force published a proposed rule titled 
``Administrative Claims'' for a 60-day public comment period. At the 
end of the public comment period, no public comments were received. As 
a result, no changes were made to the regulatory text.

Executive Summary

I. Purpose of This Regulatory Action

    The purpose of this rule is to provide the public with information 
necessary to file a claim against the United States Air Force for money 
damages and to notify the public of the procedures used to collect 
money from the public for damages to property under the control of the 
United States Air Force. Additionally, it is to provide the public with 
information about changes and deletions concerning the settlement and 
payment of claims under the Military Personnel and Civilian Employee's 
Claims Act for incident to service loss and damage to personal 
property.

II. Summary of the Major Provisions of This Regulatory Action

    This part describes the process and procedures by which claims 
against the Air Force will be addressed, including who are proper 
claimants, how, where and when to file a claim, what claims are 
payable, how the Air Force will adjudicate claims and how to appeal 
unfavorable decisions. It also describes the process the Air Force will 
use for asserting claims against persons who damage Air Force property.
    Changes: This part has been substantially revised since last 
codified and should be reviewed in its entirety to determine the 
changes made.
    Deletions: This part has been substantially revised since last 
codified and should be reviewed in its entirety to determine the 
deletions made.

III. Costs and Benefits

    The regulations contained herein require the public who wish to 
file a claim against the Air Force to substantiate their loss, which 
may result in minor or incidental costs to the claimant. Revised 
regulations pertaining to how the Air Force asserts claims for damage 
to Air Force property may result in increased costs to those who cause 
said damage. The benefits of these regulations include increased 
safeguards to ensure public funds are not expended for fraudulent 
claims and to ensure the U.S. government receives adequate compensation 
for damages to its property wrongfully caused by others.

Retrospective Review

    This rule is part of DoD's retrospective plan, completed in August 
2011, under Executive Order 13563, ``Improving Regulation and 
Regulatory Review,'' DoD's full plan and updates can be accessed at: 
https://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=DOD-2011-OS-0036.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''
    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. The Department of Air Force has assessed this rule and 
determined this rule to be a ``non-significant regulatory action.''
Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)
    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
(Pub. L. 104-4) requires agencies assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any 1 year 
of $100 million in 1995 dollars, updated annually for inflation. In 
2014, that threshold is approximately $141 million. This rule will not 
mandate any requirements for State, local, or tribal governments, nor 
will it affect private sector costs.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
    It has been certified that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. Therefore, the Regulatory Flexibility Act, as 
amended, does not require us to prepare a regulatory flexibility 
analysis.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
    This rule does not impose reporting or recordkeeping requirements 
under the Paperwork Reduction Act of 1995.
Executive Order 13132, ``Federalism''
    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. This rule will not have a substantial effect on State and 
local governments.

List of Subjects in 32 CFR Part 842

    Administrative claims.

    Accordingly, 32 CFR part 842 is amended as follows:

PART 842--[AMENDED]

0
1. The authority citation for 32 CFR part 842 continues to read as 
follows:


[[Page 83688]]


     Authority: Sec. 8013, 100 Stat. 1053, as amended; 10 U.S.C. 
8013, except as otherwise noted; 28 CFR 14.11, except as otherwise 
noted.


0
2. The Note for part 842 is revised to read as follows:

    Note: Air Force Regulations are available on the e-Publishing 
Web site at https://www.e-publishing.af.mil/ for downloading. This 
part is derived from Air Force Instruction 51-501, Tort Claims, and 
Air Force Instruction 51-502, Personnel and Carrier Recovery Claims.


0
3. Amend part 842 by revising all references to ``HQ USAF/JACC'' to 
read ``AFLOA/JACC.''

0
4. Revise Sec.  842.0 to read as follows:


Sec.  842.0  Scope.

    This part establishes standard policies and procedures for all 
administrative claims resulting from Air Force activities and for which 
the Air Force has assigned responsibility.

0
5. Amend Sec.  842.2 by:
0
a. Revising paragraph (f).
0
b. Removing paragraph (g).
0
c. Redesignating paragraphs (h) through (o) as (g) through (n).
0
d. Revising newly redesignated paragraph (g).
    The revisions read as follows:


Sec.  842.2  Definitions.

* * * * *
    (f) AFLOA/JACC. Claims and Tort Litigation Division, 1500 West 
Perimeter Road, Suite 1700, Joint Base Andrews, MD 20762.
    (g) Owner. A holder of a legal title or an equitable interest in 
certain property. Specific examples include:
    (1) For real property. The mortgagor, and the mortgagee if that 
individual can maintain a cause of action in the local courts involving 
a tort to that specific property.
    (2) For personal property. A bailee, lessee, mortgagee and a 
conditional vendee. A mortgagor, conditional vendor, title loan company 
or someone else other than the owner, who has the title for purposes of 
security are not owners.
* * * * *

0
6. Revise Sec.  842.4 to read as follows:


Sec.  842.4  Where to file a claim.

    File a claim at the base legal office of the unit or installation 
at or nearest to where the accident or incident occurred. If the 
accident or incident occurred in a foreign country where no Air Force 
unit is located, file the claim with the Defense Attache (DATT) or 
Military Assistance Advisory Group (MAAG) personnel authorized to 
receive claims (DIAM 100-1 and AFR 400-45). In a foreign country where 
a claimant is unable to obtain adequate assistance in filing a claim, 
the claimant may contact the nearest Air Force SJA. The SJA then 
advises AFLOA/JACC through claims channels of action taken and states 
why the DATT or MAAG was unable to adequately assist the claimant.


Sec.  842.9  [Removed]

0
7. Remove Sec.  842.9.

Subpart B--[Removed]

0
8. Remove subpart B, consisting of Sec. Sec.  842.10 through 842.14.

Subpart C--[Redesignated as Subpart B]

0
9. Redesignate subpart C, consisting of Sec. Sec.  842.15 through 
842.20, as subpart B, consisting of Sec. Sec.  842.9 through 842.14, 
respectively.

0
10. Amend newly redesignated Sec.  842.10 by revising paragraphs (a), 
(b), and (d) to read as follows:


Sec.  842.10  Definitions.

    (a) Appointing commander. The commander exercising special court-
martial jurisdiction over the offender.
    (b) Board of officers. One to three commissioned officers appointed 
to investigate a complaint of willful property damage or wrongful 
taking by Air Force personnel.
* * * * *
    (d) Willful damage. Damage or destruction caused intentionally, 
knowingly, and purposely, without justifiable excuse.
* * * * *

0
11. Amend newly redesignated Sec.  842.12 by adding paragraphs (g) 
through (i) to read as follows:


Sec.  842.12  Claims not payable.

* * * * *
    (g) Claims involving wrongful taking stemming from larceny, forgery 
or deceit, which are not accompanied by riotous or violent action.
    (h) Claims against Air National Guard members unless they are 
performing duty under Title 10 U.S.C.
    (i) Claims for indirect, consequential or remote damages.

0
12. Revise newly redesignated Sec.  842.13 to read as follows:


Sec.  842.13  Limiting provisions.

    (a) A complaint must be submitted within 90 days of the date of the 
incident. The appointing commander may find good cause for the delay 
and accept a late claim. The appointing commander's determination of 
good cause is final and not reviewable.
    (b) Assessment of damages in excess of $5,000 against an offender's 
pay for a single incident requires AFLOA/JACC approval.

0
13. Revise newly redesignated Sec.  842.14 to read as follows:


Sec.  842.14  Filing a claim.

    Claimant complains (orally or in writing) to the commander of a 
military organization or unit of the alleged offending member or 
members or to the commander of the nearest military installation. If 
the claim is made orally, the individual must assist the commander to 
reduce the complaint to writing within a reasonable time. The 
complainant need not request a sum certain in writing at the time the 
complaint is filed, but they must present such value and evidence 
before settlement is made.

Subpart D--[Redesignated as Subpart C]

0
14. Redesignate subpart D, consisting of Sec. Sec.  842.21 through 
842.35, as subpart C, consisting of Sec. Sec.  842.15 through 842.29.


Sec.  842.16  [Amended]

0
15. Amend newly redesignated Sec.  842.16 by:
0
a. Removing paragraphs (a), (c), (e), and (g).
0
b. Redesignating paragraphs (b), (d), (f), and (h) as paragraphs (a), 
(b), (c), and (d).

0
16. Revise newly designated Sec.  842.17 to read as follows:


Sec.  842.17   Delegations of authority.

    (a) Settlement authority. The Secretary of the Air Force has 
delegated the authority to assign areas of responsibility and designate 
functional responsibility for claims under the Military Personnel and 
Civilian Employees' Claims Act to The Judge Advocate General (TJAG).
    (b) Reconsideration authority. A settlement authority has the same 
authority specified in paragraph (a) of this section. However, with the 
exception of TJAG, a settlement authority may not deny a claim on 
reconsideration that it, or its delegate, had previously denied.
    (c) Authority to reduce, withdraw and restore delegated settlement 
authority. Any superior settlement authority may reduce, withdraw, or 
restore delegated authority.

0
17. Amend newly designated Sec.  842.18 by revising paragraph (a) to 
read as follows:


Sec.  842.18  Filing a claim.

    (a) How and when to file a claim. A claim is filed when a federal 
military

[[Page 83689]]

agency receives from a claimant or duly authorized agent a properly 
completed AF Form 180, DD Form 1842 or other written and signed demand 
for a determinable sum of money.
    (1) A claim is also filed when a federal military agency receives 
from a claimant or duly authorized agent an electronic submission, 
through a Department of Defense claims Web site, indicating that the 
claimant intends for the appropriate military branch to consider a 
digitally signed demand for a determinable sum of money.
    (2) A claim is also filed when the Air Force receives from a 
claimant or duly authorized agent an electronic submission, through the 
Air Force claims Web site, a digitally signed demand for a determinable 
sum of money.
* * * * *

0
18. Revise newly designated Sec.  842.19 introductory text to read as 
follows:


Sec.  842.19  Partial payments.

    Upon request of a claimant, a settlement authority may make a 
partial payment in advance of final settlement when a claimant 
experiences personal hardship due to extensive property damage or loss. 
Partial payments are made if a claim for only part of the loss is 
submitted and is readily provable, up to the amount of the settlement 
authority. (The claimant may later amend the claim for the remainder of 
the loss.) If the total payable amount of the claim exceeds the payment 
limits of the settlement authority, send it with recommendations to the 
proper settlement authority.
* * * * *

0
19. Revise newly designated Sec.  842.21 to read as follows:


Sec.  842.21   Who may file a claim.

    A claim may be filed by:
    (a) A proper claimant.
    (b) An authorized agent or legal representative of a proper 
claimant.
    (c) A survivor of a deceased proper claimant in this order:
    (1) Spouse.
    (2) Children.
    (3) Father or mother.
    (4) Brothers or sisters.

0
20. Amend newly designated Sec.  842.24 by revising paragraph (d) to 
read as follows:


Sec.  842.24  General provisions.

* * * * *
    (d) Property that is owned by the claimants, or their immediate 
families, or borrowed for their use, or in which the claimants or their 
immediate families has an enforceable ownership interest.
* * * * *

0
21. Amend newly designated Sec.  842.25 by revising the introductory 
text and paragraphs (a) and (b) to read as follows:


Sec.  842.25  Claims payable.

    Claims may be payable for loss of or damage to tangible personal 
property when the damage occurs incident to service. For loss of or 
damage to property to be incident to service, it must occur at a place 
and time that is connected to the service of an active duty military 
member or employment of a civilian employee.
    (a) Authorized location. Claims are only payable when the claimed 
property is located in an authorized location. There must be some 
connection between the claimant's service and the location of the 
claimed property. Duty locations where personal property is used, 
stored or held because of official duties are authorized places. Other 
authorized places may include:
    (1) Any location on a military installation not otherwise excluded.
    (2) Any office, building, recreation area, or real estate the Air 
Force or any other DoD element uses or controls.
    (3) Any place a military member is required or ordered to be 
pursuant to their duties and while performing those duties.
    (4) Assigned Government housing or quarters in the United States or 
provided in kind. The Military Personnel and Civilian Employees' Claims 
Act specifically prohibits payment for loss of or damage to property in 
quarters within the US unless the housing or quarters are assigned or 
otherwise provided in kind. Base housing that has not been privatized 
is generally considered assigned or provided in kind wherever it is 
located.
    (i) Privatized housing or quarters within the United States subject 
to the Military Housing Privatization Initiative located within the 
fence line of a military installation or on federal land in which the 
DoD has an interest is considered assigned or otherwise provided in 
kind for the purposes of the Military Personnel and Civilian Employees' 
Claims Act.
    (ii) [Reserved]
    (5) Housing or quarters outside the United States. Outside the US, 
authorized off-base quarters, as well as assigned quarters, including 
quarters in US territories and possessions, are authorized places. The 
residence of a civilian employee is not an authorized location if the 
employee is a local inhabitant.
    (6) Temporary duty (TDY) quarters and locations en route to the TDY 
destination. Significant deviations from the direct travel route are 
not authorized locations.
    (7) Permanent change of station (PCS) temporary quarters and 
locations enroute to the PCS destination. Significant deviations from 
the direct travel route are not authorized locations.
    (8) Entitlement and benefit locations. For these locations to be 
authorized, the claimant must be using them for the intended purpose 
and the property must be reasonably linked to that purpose.
    (9) Locations where personal property shipped or stored at 
government expense are found. Government facilities where property is 
stored at the claimant's expense or for their convenience without an 
entitlement are not authorized places.
    (b) Payable causes of loss incident to service. Because the 
Personnel Claims Act (PCA) is not a substitute for private insurance, 
loss or damage at quarters or other authorized locations may only be 
paid if caused by:
    (1) An unusual occurrence;
    (2) Theft, vandalism or other malfeasance;
    (3) Hostile action;
    (4) A carrier, contractor, warehouseman or other transportation 
service provider storing or moving goods or privately owned vehicles at 
government expense;
    (5) An agent of the US; or
    (6) A permanent seizure of a witness' property by the Air Force.
* * * * *

0
22. Amend newly designated Sec.  842.26 by:
0
a. Revising paragraphs (d), (j), (m), (n), (u), (y), and (z).
0
b. Remove paragraphs (aa), (bb), (cc), and (dd).
    The revisions read as follows:


Sec.  842.26  Claims not payable.

* * * * *
    (d) The loss is recovered or recoverable from an insurer or other 
source unless the settlement authority determines there is good cause 
for not claiming against the insurer.
* * * * *
    (j) It is an appraisal fee, unless the settlement authority 
requires one to adjudicate the claim.
* * * * *
    (m) It is an item acquired, possessed, shipped, or stored in 
violation of any US Armed Force directive or regulation.
    (n) It is an item fraudulently claimed.
* * * * *
    (u) It is an inconvenience expense.
* * * * *

[[Page 83690]]

    (y) It is damage to, or loss of a rental vehicle which TDY or PCS 
orders authorized.
    (z) It is a cost to relocate a telephone or mobile or manufactured 
home due to a government ordered quarters move.

Subpart E--[Removed]

0
23. Remove subpart E.

Subpart F--[Redesignated as Subpart D]

0
24. Redesignate subpart F, consisting of Sec. Sec.  842.40 through 
842.54, as subpart D consisting of Sec. Sec.  842.30 through 842.44.

0
25. Revise newly redesignated Sec.  842.30 to read as follows:


Sec.  842.30  Scope of this subpart.

    This subpart establishes policies and procedures for all 
administrative claims under the Military Claims Act for which the Air 
Force has assigned responsibility.

0
26. Amend newly redesignated Sec.  842.31 by revising paragraph (b) to 
read as follows:


Sec.  842.31   Definitions.

* * * * *
    (b) Final denial. A letter mailed from the settlement authority to 
the claimant or authorized agent advising the claimant that the Air 
Force denies the claim. Final denial letters mailed from within the 
United States shall be sent by US Mail, certified mail, return receipt 
requested.
* * * * *

0
27. Amend newly redesignated Sec.  842.32 by:
0
a. Revising paragraphs (a)(1) introductory text, (a)(3) introductory 
text, (a)(3)(ii) and (iii), (a)(4) and (5), (b), and (f) introductory 
text.
0
b. Removing paragraph (f)(8) and redesignating paragraphs (f)(9) 
through (11) as paragraphs (f)(8) through (10).
    The revisions read as follows:


Sec.  842.32  Delegations of authority.

    (a) Settlement authority. (1) The Secretary of the Air Force has 
authority to:
* * * * *
    (3) The following individuals have delegated authority to settle 
claims for $25,000 or less and to deny claims in any amount:
* * * * *
    (ii) The Director, Civil Law and Litigation.
    (iii) The Chief, Associate Chief and Branch Chiefs, Claims and Tort 
Litigation Division.
    (4) SJAs of the Air Force component commander of the US geographic 
combatant commands for claims arising within their respective combatant 
command areas of responsibility have delegated authority to settle 
claims payable or deny claims filed for $25,000 or less.
    (5) SJAs of GCMs in PACAF and USAFE have delegated authority to 
settle claims payable, or deny claims filed for $15,000 or less.
    (b) Redelegation of authority. The Chief, Claims and Tort 
Litigation Division may redelegate his or her authority to Staff Judge 
Advocates. A settlement authority may redelegate his or her authority 
for claims not exceeding $25,000, to a subordinate judge advocate or 
civilian attorney in writing. The Chief, AFLOA/JACC may redelegate up 
to $25,000, in writing, to paralegals assigned to AFLOA/JACC and, upon 
request, may authorize installation Staff Judge Advocates to redelegate 
their settlement authority to paralegals under their supervision.
* * * * *
    (f) Special exceptions. Do not settle or deny claims for the 
following reasons without AFLOA/JACC approval:
* * * * *

0
28. Amend newly redesignated Sec.  842.33 by revising paragraph (a) to 
read as follows:


Sec.  842.33  Filing a claim.

    (a) Elements of a proper claim. A claim is must be filed on a 
Standard Form 95 or other written document. It must be signed by the 
Claimant or authorized agent, be for money damages in a sum certain, 
and lay out a basic statement as to the nature of the claim that will 
allow the Air Force to investigate the allegations contained therein.
* * * * *

0
29. Revise newly redesignated Sec.  842.34 to read as follows:


Sec.  842.34  Advance payments.

    Subpart P of this part sets forth procedures for advance payments.

0
30. Amend newly redesignated Sec.  842.35 by revising paragraphs (a) 
and (c) to read as follows:


Sec.  842.35  Statute of limitations.

    (a) A claim must be filed in writing within 2 years after it 
accrues. It is deemed to be filed upon receipt by The Judge Advocate 
General, AFLOA/JACC, or a Staff Judge Advocate of the Air Force. A 
claim accrues when the claimant discovers or reasonably should have 
discovered the existence of the act that resulted in the claimed loss. 
The same rules governing accrual pursuant to the Federal Tort Claims 
Act should be applied with respect to the Military Claims Act. Upon 
receipt of a claim that properly belongs with another military 
department, the claim is promptly transferred to that department.
* * * * *
    (c) A claim filed after the statute of limitations has run is 
considered if the US is at war or in an armed conflict when the claim 
accrues or if the US enters a war or armed conflict after the claim 
accrues, and if good causes shows how the war or armed conflict 
prevented the claimant from diligently filing the claim within the 
statute of limitations. But in no case will a claim be considered if 
filed more than two years after the war or armed conflict ends.

0
31. Revise newly redesignated Sec.  842.37 to read as follows:


Sec.  842.37  Who are proper claimants.

    (a) Citizens and inhabitants of the United States. US inhabitants 
includes dependents of the US military personnel and federal civilian 
employees temporarily outside the US for purposes of US Government 
service.
    (b) US military personnel and civilian employees. Note: These 
personnel are not proper claimants for claims for personal injury or 
death that occurred incident to their service.
    (c) Foreign military personnel when the damage or injury occurs in 
the US. Do not pay for claims under the Military Claims Act (MCA) for 
personal injury or death of a foreign military personnel that occurred 
incident to their service.
    (d) States, state agencies, counties, or municipalities, or their 
political subdivisions.
    (e) Subrogees of proper claimants to the extent they have paid for 
the claim in question.

0
32. Revise newly redesignated Sec.  842.38 to read as follows:


Sec.  842.38  Who are not proper claimants.

    (a) Governments of foreign nations, their agencies, political 
subdivisions, or municipalities.
    (b) Agencies and nonappropriated fund instrumentalities (NAFIs) of 
the US Government.
    (c) Subrogees of Sec.  842.42(a) and (b).
    (d) Inhabitants of foreign countries.

0
33. Amend newly redesignated Sec.  842.39 by:
0
a. Revising paragraph (a).
0
b. Removing paragraphs (c), (d), and (f).
0
c. Redesignating paragraph (e) as paragraph (c).
    The revision reads as follows:

[[Page 83691]]

Sec.  842.39  Claims payable.

    (a) Claims arising from negligent or wrongful acts or omissions 
committed by United States military or civilian personnel while acting 
in the scope of their employment, subject to the exceptions listed in 
this subpart.
* * * * *

0
34. Revise newly redesignated Sec.  842.40 to read as follows:


Sec.  842.40  Claims not payable.

    (a) Claims covered by the Federal Tort Claims Act (FTCA), Foreign 
Claims Act (FCA), International Agreements Claims Act (IACA), 10 U.S.C. 
2734a and 2734b, Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 
9801-9804, 9806, National Guard Claims Act (NGCA), 32 U.S.C. 715, or 
covered under the Military Personnel and Civilian Employees' Claims Act 
(MPCECA), 31 U.S.C. 3701, 3721.
    (1) MCA claims arising from noncombat activities in the US are not 
covered by the FTCA because more elements are needed to state an FTCA 
claim than are needed to state a claim under the MCA for noncombat 
activities. All FTCA claims are based on elements of traditional tort 
liability (i.e., duty, breach, causation, and damages); that is, they 
are fault based. Noncombat activity claims under the MCA are based 
solely on causation and damages. Because MCA claims for noncombat 
activities are not fault based, they are not covered by the FTCA.
    (2) Claims for incident-to-service damage to vehicles caused by the 
negligence of a member or employee of the armed forces acting in the 
scope of employment are paid under the MCA, instead of the Military 
Personnel and Civilian Employees' Claims Act.
    (b) Arises with respect to the assessment or collection of any 
customs duty, or the detention of any goods or merchandise by any US 
officer of customs or excise, or any other US law enforcement officer. 
Note: This includes loss or damage to property detained by members of 
the Security Forces or Office of Special Investigation (OSI).
    (c) Is cognizable under US admiralty and maritime law, to include:
    (1) The Suits in Admiralty Act, 46 U.S.C. 30901 and following.
    (2) The Death on the High Seas Act, 46 U.S.C. 30301 and following.
    (3) The Public Vessels Act, 46 U.S.C. 31101 and following.
    (4) Exception: Claims arising from noncombat activities may be paid 
under the MCA, even if they are also cognizable under paragraphs (c)(1) 
through (3) of this section.
    (d) Arises out of assault, battery, false imprisonment, false 
arrest, malicious prosecution, or abuse of process. Exception: Unless 
such actions were committed by an investigative or law enforcement 
officer of the US who is empowered by law to conduct searches, seize 
evidence, or make arrests for violations of federal law.
    (e) Arises out of libel, slander, misrepresentation, or deceit.
    (f) Arises out of an interference with contract rights.
    (g) Arises out of the combat activities of US military forces.
    (h) Is for the personal injury or death of a member of the Armed 
Forces of the US incident to the member's service.
    (i) Is for the personal injury or death of any person for workplace 
injuries covered by the Federal Employees' Compensation Act, 5 U.S.C. 
8101, and following.
    (j) Is for the personal injury or death of any employee of the US, 
including nonappropriated fund employees, for workplace injuries 
covered by the Longshore and Harbor Workers' Compensation Act, 33 
U.S.C. 901, and following.
    (k) Is for a taking of property, e.g., by technical trespass or 
over flight of aircraft.
    (l) Is for patent or copyright infringement.
    (m) Results wholly from the negligent or wrongful act of the 
claimant.
    (n) Is for the reimbursement of medical, hospital, or burial 
expenses furnished at the expense of the US, either directly or through 
contractual payments.
    (o) Arises from contractual transactions, express or implied 
(including rental agreements, sales agreements, leases, and easements), 
that:
    (1) Are payable or enforceable under oral or written contracts; or
    (2) Arise out of an irregular procurement or implied contract.
    (p) Is for the personal injury or death of military or civilian 
personnel of a foreign government incident to their service.
    (q) Is based on an act or omission of an employee of the 
government, exercising due care, in the execution of a statute or 
regulation, whether or not such statute or regulation is valid. Do not 
deny claims solely on this exception without the prior approval of 
USAF/JACC. Claims under the noncombat activities provision of this 
subpart may be paid even if this paragraph (q) applies. Is based on the 
exercise or performance of, or the failure to exercise or perform, a 
discretionary function or duty on the part of a federal agency or a 
Federal Government employee, whether or not the discretion involved is 
abused. Do not deny claims solely on this exception without the prior 
approval of USAF/JACC. Exception: Claims under the noncombat activities 
provision may be paid even if this paragraph (q) applies.
    (r) Is not in the best interests of the US, is contrary to public 
policy, or is otherwise contrary to the basic intent of the MCA. 
Examples include, but are not limited to, when a claimant's criminal 
conduct or failure to comply with a nonpunitive regulation is a 
proximate cause of the loss. Prior approval must be obtained from USAF/
JACC before denying claims solely on this exception.
    (s) Arises out of an act or omission of any employee of the 
government in administering the provisions of the Trading With the 
Enemy Act, 50 U.S.C. app. 1-44.
    (t) Is for damages caused by the imposition or establishment of a 
quarantine by the US.
    (u) Arises from the fiscal operations of the Department of the 
Treasury or from the regulation of the monetary system.
    (v) Arises from the activities of the Tennessee Valley Authority.
    (w) Arises from the activities of a federal land bank, a federal 
intermediate credit bank, or a bank for cooperatives.
    (x) Is for the personal injury or death of any government 
contractor employee for whom benefits are available under any worker's 
compensation law, or under any contract or agreement providing employee 
benefits through insurance, local law, or custom when the US pays 
insurance either directly or as part of the consideration under the 
contract. Only USAF/JACC may act on these claims.
    (y) Is for damage, injury or death from or by flood or flood waters 
at any place.
    (z) Is for damage to property or other losses of a state, 
commonwealth, territory, or the District of Columbia caused by Air 
National Guard personnel engaged in training or duty under 32 U.S.C. 
316, 502, 503, 504, or 505 who are assigned to a unit maintained by 
that state, commonwealth, territory, or the District of Columbia.
    (aa) Is for damage to property or for any death or personal injury 
arising out of activities of any federal agency or employee of the 
government in carrying out the provisions of the Disaster Relief Act of 
1974 (42 U.S.C. 5121, et seq.), as amended.
    (bb) Arises from activities that present a political question.
    (cc) Arises from private, as distinguished from government, 
transactions.
    (dd) Is based solely on compassionate grounds.
    (ee) Is for rent, damage, or other expenses or payments involving 
the

[[Page 83692]]

regular acquisition, use, possession, or disposition of real property 
or interests therein by and for the US.
    (ff) Is presented by a national, or a corporation controlled by a 
national, of a country at war or engaged in armed conflict with the 
US., or any country allied with such enemy country unless the 
appropriate settlement authority determines that the claimant is, and 
at the time of the incident was, friendly to the US. A prisoner of war 
or an interned enemy alien is not excluded as to a claim for damage, 
loss, or destruction of personal property in the custody of the US 
otherwise payable. Forward claims considered not payable under this 
paragraph (ff), with recommendations for disposition, to USAF/JACC.
    (gg) Arises out of the loss, miscarriage, or negligent transmission 
of letters or postal matter by the US Postal Service or its agents or 
employees.
    (hh) Is for damage to or loss of bailed property when the bailor 
specifically assumes such risk.
    (ii) Is for property damage, personal injury, or death occurring in 
a foreign country to an inhabitant of a foreign country.
    (jj) Is for interest incurred prior to the payment of a claim.
    (kk) Arises out of matters which are in litigation against the US.
    (ll) Is for attorney fees or costs in connection with pursuing an 
administrative or judicial remedy against the US or any of its 
agencies.
    (mm) Is for bail, interest or inconvenience expenses incurred in 
connection with the preparation and presentation of the claim.
    (nn) Is for a failure to use a duty of care to keep premises owned 
or under the control of the US safe for use for any recreational 
purpose, or for a failure by the US to give any warning of hazardous 
conditions on such premises to persons entering for a recreational 
purpose unless there is a willful or malicious failure to guard or warn 
against a dangerous condition, or unless consideration was paid to the 
US (including a nonappropriated fund instrumentality) to use the 
premises.

0
35. Revise newly redesignated Sec.  842.41 to read as follows:


Sec.  842.41  Applicable law.

    This section provides the existing law governing liability, 
measurement of liability and the effects of settlement upon awards.
    (a) Federal preemption. Many of the exclusions in this subpart are 
based upon the wording of 28 U.S.C. 2680 or other federal statutes or 
court decisions interpreting the Federal Tort Claims Act. Federal case 
law interpreting the same exclusions under the Federal Tort Claims Act 
is applied to the Military Claims Act. Where state law differs with 
federal law, federal law prevails.
    (b) Extent of liability. Where the claim arises is important in 
determining the extent of liability.
    (1) Applicable law. When a claim arises in the United States, its 
territories or possessions, the same law as if the claim was cognizable 
under the FTCA will be applied.
    (2) Claims in foreign countries. In claims arising in a foreign 
country, where the claim is for personal injury, death, or damage to or 
loss of real or personal property caused by an act or omission alleged 
to be negligent, wrongful, or otherwise involving fault of military 
personnel or civilian officers or employees of the United States acting 
within the scope of their employment, liability or the United States is 
determined according to federal case law interpreting the FTCA. Where 
the FTCA requires application of the law of the place where the act or 
omission occurred, settlement authorities will use the rules set forth 
in the currently adopted edition of the Restatement of the Law, 
published by the American Law Institute, to evaluate the liability of 
the Air Force, subject to the following rules:
    (i) Foreign rules and regulations governing the operation of motor 
vehicles (rules of the road) are applied to the extent those rules are 
not specifically superseded or preempted by United States military 
traffic regulations.
    (ii) Absolute or strict liability will not apply for claims not 
arising from noncombat activities.
    (iii) Hedonic damages are not payable.
    (iv) The collateral source doctrine does not apply.
    (v) Joint and several liability does not apply. Payment will be 
made only upon the portion of loss, damage, injury or death 
attributable to the Armed Forces of the United States.
    (vi) Future economic loss will be discounted to present value after 
deducting for federal income taxes and, in cases of wrongful death, 
personal consumption.
    (c) Claims not payable. Do not approve payment for:
    (i) Punitive damages.
    (ii) Cost of medical or hospital services furnished at the expense 
of the United States.
    (iii) Cost of burial expenses paid by the United States.
    (d) Settlement by insurer or joint tortfeasor. When settlement is 
made by an insurer or joint tortfeasor and an additional award is 
warranted, an award may be made if both of the following are present:
    (1) The United States is not protected by the release executed by 
the claimant.
    (2) The total amount received from such source is first deducted.

0
36. Amend newly redesignated Sec.  842.42, by revising paragraphs (a) 
and (c) to read as follows:


Sec.  842.42  Appeal of final denials.

    (a) A claimant may appeal the final denial of the claim. The 
claimant sends the request, in writing, to the settlement authority 
that issued the denial letter within 60 days of the date the denial 
letter was mailed. The settlement authority may waive the 60 day time 
limit for good cause.
* * * * *
    (c) Where the settlement authority does not reach a final agreement 
on an appealed claim, he or she sends the entire claim file to the next 
higher settlement authority, who is the appellate authority for that 
claim. Any higher settlement authority may act upon an appeal.
* * * * *

Subpart G--[Redesignated as Subpart E]

0
37. Redesignate subpart G, consisting of Sec. Sec.  842.55 through 
842.68, as subpart E, consisting of Sec. Sec.  842.45 through 842.58, 
respectively.

0
38. Revise newly redesignated Sec.  842.47 to read as follows:


Sec.  842.47  Delegations of authority.

    (a) Settlement authority. (1) The Secretary of the Air Force has 
the authority to:
    (i) Settle claims for payment of $100,000 or less.
    (ii) Settle claims for more than $100,000, pay the first $100,000, 
and report the excess to the Department of the Treasury for payment.
    (iii) Deny claims in any amount.
    (2) The Judge Advocate General, Deputy Judge Advocate General, 
Director of Civil Law, and the Chief, Deputy Chief and Branch Chiefs, 
Claims and Tort Litigation Staff are FCCs and have delegated authority 
to:
    (i) Settle claims for payment of $100,000 or less.
    (ii) Deny claims in any amount.
    (3) The SJAs of the Air Force component commander of the US 
geographic combatant commands are FCC for claims arising in their 
respective combatant command Areas of Responsibility (AORs) and may 
deny claims of $50,000 or less and will pay claims filed in any amount 
when payment is for $50,000 or less.

[[Page 83693]]

    (b) Redelegating settlement authority. A settlement authority 
appointed as a FCC in paragraph (a) of this section may appoint one or 
more subordinate judge advocates or civilian attorneys to act as FCC, 
and redelegate all or part of that settlement authority to such 
persons.
    (c) Settlement negotiations. A settlement authority may settle a 
claim in any sum within its settlement authority, regardless of the 
amount claimed. Send uncompromised claims in excess of the delegated 
authority through claims channels to the level with settlement 
authority. Unsuccessful negotiations at one level do not bind higher 
authority.
    (d) Special exceptions. Do not settle claims for medical 
malpractice without HQ USAF/JACC approval.

0
39. Amend newly redesignated Sec.  842.48 by revising paragraph (a) to 
read as follows:


Sec.  842.48  Filing a claim.

    (a) How and when filed. A claim is filed when the Air Force 
receives from a claimant or authorized agent a properly completed SF 95 
or other signed and written demand for money damages in a sum certain. 
A claim may be presented orally only if oral claims are the custom in 
the country where the incident occurred and the claimant is 
functionally illiterate. In any case where an oral claim is made, 
claims personnel must promptly reduce the claim to writing with all 
particulars carefully noted. A claim belonging to another agency is 
promptly transferred to the appropriate agency.
* * * * *

0
40. Revise newly redesignated Sec.  842.49 to read as follows:


Sec.  842.49  Advance payments.

    Subpart P of this part outlines procedures for advance payments.

0
41. Amend newly redesignated Sec.  842.50 by revising paragraph (a) to 
read as follows:


Sec.  842.50  Statute of limitations.

    (a) A claim must be presented to the Air Force within 2 years after 
it accrues. It accrues when the claimant discovers or reasonably should 
have discovered the existence of the act that resulted in the claimed 
loss or injury.
* * * * *

0
42. Amend newly redesignated Sec.  842.52 by revising paragraphs (a) 
and (b) to read as follows:


Sec.  842.52  Who are proper claimants.

* * * * *
    (a) Foreign nationals. In a wrongful death case, if the decedent is 
an inhabitant of a foreign country, even though his or her survivors 
are US inhabitants, the FCA will apply.
    (b) US nationals residing abroad, unless the claim arises from a 
benefit, privilege or service provided to them by the US Government, or 
they reside in the foreign country primarily because they are employed 
directly by the United States, or sponsored by or accompanying such a 
person, or employed by a US civilian contractor in furtherance of a 
contract with the US Government, or sponsored by or accompanying such a 
person.
* * * * *

0
43. Amend newly redesignated Sec.  842.53 by revising paragraphs (b), 
(c), and (e) to read as follows:


Sec.  842.53  Who are not proper claimants.

* * * * *
    (b) Persons determined to be US inhabitants. US inhabitants include 
dependents of US military personnel and US Government civilian 
employees.
    (c) Foreign military personnel suffering personal injury, or death 
arising incident to service or pursuant to combined and/or joint 
military operations. Such operations include, but are not limited to, 
military exercises and United Nations, NATO, and other regional 
peacekeeping and humanitarian missions.
* * * * *
    (e) National governments and their political subdivisions engaging 
in war or armed conflict with the United States or its allies. This 
includes factions that have not necessarily been recognized by the 
international community as a legitimate nation state.
* * * * *

0
44. Amend newly redesignated Sec.  842.54 by:
0
a. Revising paragraph (a).
0
b. Removing paragraph (b).
0
c. Redesignating paragraph (c) as paragraph (b).
    The revision reads as follows:


Sec.  842.54  Payment criteria.

* * * * *
    (a) The incident causing the damage or injury must arise in a 
foreign country and be caused by noncombatant activities of the US 
Armed Forces or by the negligent or wrongful acts of civilian employees 
or military members of the Armed Forces.
    (1) It is a prerequisite to US responsibility if the employee 
causing the damage or injury is a local inhabitant, a prisoner of war, 
or an interned enemy alien. These persons are ``employees'' within the 
meaning of the Foreign Claims Act (FCA) only when in the service of the 
United States. Ordinarily, a slight deviation as to time or place does 
not constitute a departure from the scope of employment. The purpose of 
the activity and whether it furthers the general interest of the United 
States is considered. If the claim arose from the operation or use of a 
US Armed Forces vehicle or other equipment by such a person, pay it 
provided local law imposes liability on the owner of the vehicle or 
other equipment in the circumstances involved.
    (2) It is immaterial when the claim arises from the acts or 
omissions of any US Armed Forces member or employee not listed in Sec.  
842.64(c)(1). The Act imposes responsibility on the United States when 
it places a US citizen or non-US citizen employee in a position to 
cause the injury or damage. If the cause is a criminal act clearly 
outside the scope of employment, ordinarily pay the claim and consider 
disciplinary action against the offender.
* * * * *

0
45. Amend newly redesignated Sec.  842.55 by:
0
a. Revising paragraphs (a), (c), (f), (h), (m), (o), and (q).
0
b. Adding paragraphs (s) and (t).
    The revisions and additions read as follows:


Sec.  842.55  Claims not payable.

* * * * *
    (a) Is waived under an applicable international agreement, or 
pursuant to an applicable international agreement, a receiving state 
should adjudicate and pay the claim. However, if a foreign government 
subject to such an international agreement disputes its legal 
responsibilities under the agreement, and the claimant has no other 
means of compensation, USAF/JACC may authorize payment.
* * * * *
    (c) Is for attorney fees, punitive damages, a judgment or interest 
on a judgment, bail, or court costs. FCC should consider providing 
early notice to claimants that attorney fees are not payable as an item 
of damage under the FCA.
* * * * *
    (f) Is a paternity claim.
* * * * *
    (h) Results wholly from the negligent or wrongful act of the 
claimant or agent.
* * * * *
    (m) Results from an action by an enemy, or directly or indirectly 
from an act of the US Armed Forces in combat, except that a claim may 
be allowed if it arises from an accident or malfunction incident to the 
operation of an aircraft

[[Page 83694]]

of the US Armed Forces, including its airborne ordnance, indirectly 
related to combat, and occurring while preparing for or going to, or 
returning from a combat mission.
* * * * *
    (o) Arises out of personal activities of family members, guests, 
servants, or activities of the pets of members and employees of the US 
Armed Forces.
* * * * *
    (q) Is covered under US admiralty or maritime laws, unless 
authorized by The Judge Advocate General or Chief, Claims and Tort 
Litigation Staff.
* * * * *
    (s) Is not in the best interest of the United States, is contrary 
to public policy, or otherwise contrary to the basic intent of the FCA. 
Claims considered not payable on this basis will be forwarded to USAF/
JACC for final decision.
    (t) Is presented by a national, or a corporation controlled by a 
national, of a country at war or engaged in armed conflict with the 
United States, or any country allied with such enemy country unless the 
settlement authority determines the claimant is, and at the time of the 
incident was, friendly to the United States. Exception: A prisoner of 
war or interned enemy alien is not excluded from filing a claim for 
damage, loss, or destruction of personal property within the US Armed 
Forces' custody if the claim is otherwise payable.

0
46. Revise newly redesignated Sec.  842.56 to read as follows:


Sec.  842.56  Applicable law.

    This section provides guidance to determine the applicable law for 
assessment of liability.
    (a) In adjudicating FCA claims, settlement authorities will follow 
the law, customs, and standards of the country where the claim arose, 
except:
    (1) Causation is determined based upon general principles of US 
tort law found in federal case law and standard legal publications.
    (2) Joint and several liability does not apply. Payment is based 
solely on the portion of loss, damage, injury or death attributable to 
the US Armed Forces.
    (3) If lost income or lost profits is recoverable under the law 
where the claim arose, they shall be limited to net lost income or net 
lost profits, taking into account appropriate deductions for taxes, 
regular business expenditures, and in the case of wrongful death, 
personal consumption during the loss period.
    (b) Settlement authorities will not deduct compensation from 
collateral sources except for:
    (1) Direct payments by a member or civilian employee of the US 
Armed Forces for damages (not solatia).
    (2) Any payments recovered or recoverable from an insurance policy 
when premiums were paid, directly or indirectly, by the United States, 
or a member or civilian employee of the US Armed Forces; or when the 
member or employee has the benefit of the insurance (such as when a US 
member or employee borrows a vehicle of a local national, and the 
vehicle carries insurance for the benefit of any driver with permission 
to drive the vehicle).

0
47. Revise newly redesignated Sec.  842.57 to read as follows:


Sec.  842.57  Reconsideration of final denials.

    This section provides the procedures used to reconsider a final 
denial.
    (a) An FCC has the inherent authority to reconsider a final 
decision. The mere fact that a request for reconsideration is received 
does not obligate the settlement authority to reopen the claim.
    (b) The FCC does not mention a reconsideration right in the 
original denial letter.
    (c) A settlement authority must reconsider the final action when 
there is:
    (1) New and material evidence concerning the claim; or
    (2) Obvious errors in the original decision.
    (d) The FCC must document in the claim file the reason for 
reconsideration.
    (e) A FCC above the original settlement authority may direct a 
claim be forwarded to a higher FCC for reconsideration.

0
48. Revise newly redesignated Sec.  842.58 to read as follows:


Sec.  842.58  Right of subrogation, indemnity, and contribution.

    The Air Force has all the rights of subrogation, indemnity and 
contribution, as local law permits. However, settlement authorities 
will not seek contribution or indemnity from US military members or 
civilian employees whose conduct gave rise to US Government liability, 
or whenever it would be harmful to international relations.

Subpart H--[Redesignated as Subpart F]

0
49. Redesignate subpart H, consisting of Sec. Sec.  842.69 through 
842.72, as subpart F, consisting of Sec. Sec.  842.59 through 842.62, 
respectively.

0
50. Revise newly redesignated Sec.  842.59 to read as follows:


Sec.  842.59  Scope of this subpart.

    This subpart governs Air Force actions in investigating, 
processing, and settling claims under the International Agreement 
Claims Act.

0
51. Amend newly redesignated Sec.  842.60 by revising paragraphs (a), 
(d), (e), (f), and (g) to read as follows:


Sec.  842.60  Definitions.

* * * * *
    (a) Civilian component. Civilian personnel accompanying and 
employed by an international agreement contracting force. Local 
employees, contractor employees, or members of the American Red Cross 
are not a part of the civilian component unless specifically included 
in the agreement.
* * * * *
    (d) Legally responsible. A term of art providing for settlement of 
claims under cost sharing international agreements in accordance with 
the law of the receiving state. Often, employees who are local 
inhabitants, not part of the civilian component of the force, could 
cause the sending state to be legally responsible under a respondeat 
superior theory.
    (e) Receiving state. The country where the force or civilian 
component of another contracting party is temporarily located. It is 
often thought of as the ``host nation.''
    (f) Sending state. The country sending the force or civilian 
component to the receiving State. In cases where US personnel are 
stationed in a foreign country, the US is the sending state.
    (g) Third parties. A term of art used in International Agreements. 
Parties other than members of the force and civilian component of the 
sending or receiving States. Dependents, tourists, and other 
noninhabitants of a foreign country are third parties (and therefore 
can generally make a claim under a SOFA) unless the international 
agreement, or an understanding between the countries involved, 
specifically excludes them.

0
52. Revise newly redesignated Sec.  842.61 to read as follows:


Sec.  842.61  Delegations of authority.

    (a) Overseas settlement authority. Staff Judge Advocates of the Air 
Force component commands of the US geographic combatant commands will, 
within their combatant command AORs, fulfill US obligations concerning 
claims abroad subject to 10 U.S.C. 2734a for which the Air Force has 
settlement authority. Consistent with 10 U.S.C. 2734a and the 
international agreement, they may reimburse or pay the pro rata share 
of a claim as agreed, or if inconsistent with the IACA or the

[[Page 83695]]

international agreement, they may object to a bill presented,
    (b) Settlement authority. The Secretary of the Air Force, The Judge 
Advocate General, the Deputy Judge Advocate General, The Director of 
Civil Law and Chief of the Claims and Tort Litigation Division may also 
exercise settlement authority under 10 U.S.C. 2734a.
    (c) Redelegation of authority. A settlement authority may 
redelegate his or her authority to a subordinate judge advocate or 
civilian attorney in writing.
    (d) Authority to reduce, withdraw, and restore settlement 
authority. Any superior settlement authority may reduce, withdraw, or 
restore delegated authority.

0
53. Amend newly redesignated Sec.  842.62 by revising paragraph (b) to 
read as follows:


Sec.  842.62  Filing a claim.

* * * * *
    (b) Claims arising in the United States. The claimant files tort 
claims arising from the act or omission of military or civilian 
personnel of another contracting party at any US military installation. 
The Staff Judge Advocate for the installation where such military or 
civilian personnel is assigned or attached will promptly notify the 
Foreign Claims Branch of USAF/JACC as well as the Commander, US Army 
Claims Service. If the claimant files said claim at an installation 
other than the location where said military or civilian personnel is 
assigned, the Staff Judge Advocate for that installation will promptly 
forward the claim to the appropriate installation Staff Judge Advocate.

Subpart I--[Redesignated as Subpart G]

0
54. Redesignate subpart I, consisting of Sec. Sec.  842.73 through 
842.81 as subpart G, consisting of Sec. Sec.  842.63 through 842.71, 
respectively.

0
55. Revise newly redesignated Sec.  842.63 to read as follows:


Sec.  842.63  Scope of this subpart.

    This subpart explains how to settle and pay claims against the 
United States, for property damage, personal injury, or death incident 
to the use of a government vehicle or any other government property on 
a government installation which are not payable under any other 
statute.

0
56. Amend newly redesignated Sec.  842.65 by revising paragraph (a)(5) 
to read as follows:


Sec.  842.65  Delegations of authority.

    (a) * * *
    (5) SJA of the Air Force component commands of the US geographic 
combatant commands.
* * * * *

0
57. Amend newly redesignated Sec.  842.68 by:
0
a. Removing the parentheses in the second sentence of paragraph (a).
0
b. Revising paragraph (c).
    The revision reads as follows:


Sec.  842.68  Claims payable.

* * * * *
    (c) Arose from the use of a government vehicle at any place or from 
the use of other government property on a government installation.
* * * * *

0
58. Amend newly redesignated Sec.  842.69 by adding paragraph (e) to 
read as follows:


Sec.  842.69  Claims not payable.

* * * * *
    (e) For pain and suffering or other general damages.

0
59. Revise newly redesignated Sec.  842.71 to read as follows:


Sec.  842.71  Settlement agreement.

    Do not pay a claim unless the claimant accepts the amount offered 
in full satisfaction of the claim and signs a settlement agreement to 
that effect, in which the claimant agrees to release any and all claims 
against the United States, its employees and agents arising from the 
incident in question. Use the settlement agreement approved for use by 
the Department of Justice for the settlement of FTCA claims, tailored 
to this claim.

Subpart J--[Redesignated as Subpart H]

0
60. Redesignate subpart J, consisting of Sec. Sec.  842.82 through 
842.85, as subpart H, consisting of Sec. Sec.  842.72 through 842.75, 
respectively.

0
61. Amend newly redesignated Sec.  842.74 by:
0
a. Revising paragraph (a)(1)(i).
0
b. Removing and reserving paragraph (a)(1)(ii) and removing paragraph 
(a)(1)(iii).
0
c. Revising paragraph (b)(3)(iv).
    The revisions read as follows:


Sec.  842.74  Delegations of authority.

    (a) * * *
    (1) * * *
    (i) Settle or deny a claim in any amount. Settlements for payment 
of more than $500,000 are certified to Congress for payment.
* * * * *
    (b) * * *
    (3) * * *
    (iv) The Chief and Deputy Chief, Claims and Tort Litigation 
Division.

0
62. In newly redesignated Sec.  842.75, add paragraph (c) to read as 
follows:


Sec.  842.75  Reconsidering claims against the United States.

* * * * *
    (c) There is no time limit for submitting a request for 
reconsideration, but it is within the discretion of the settlement 
authority to decline to reconsider a claim based on the amount of time 
passed since the claim was originally denied.

Subpart K--[Removed]

0
63. Remove subpart K, consisting of Sec. Sec.  842.86 through 842.91.

0
64. Add new subpart I, consisting of Sec. Sec.  842.76 through 842.79, 
to read as follows:
Subpart I--Claims Under the Federal Tort Claims Act (28 U.S.C. 1346(b), 
2402, 2671, 2672, 2674-2680)
Sec.
842.76 Scope of this subpart.
842.77 Delegations of authority.
842.78 Settlement agreements.
842.79 Administrative claim; when presented.

Subpart I--Claims Under the Federal Tort Claims Act (28 U.S.C. 
1346(b), 2402, 2671, 2672, 2674-2680)


Sec.  842.76  Scope of this subpart.

    This subpart, promulgated under the authority of 28 CFR 14.11, 
governs claims against the United States for property damage, personal 
injury, or death, from the negligent or wrongful acts or omission of 
Air Force military or civilian personnel while acting within the scope 
of their employment.


Sec.  842.77  Delegations of authority.

    (a) Settlement authority. The following individuals are delegated 
the full authority of the Secretary of the Air Force to settle and deny 
claims:
    (1) The Judge Advocate General.
    (2) The Deputy Judge Advocate General.
    (3) The Director of Civil Law.
    (4) The Division Chief of Claims and Tort Litigation.
    (5) The Division Chief of Environmental Law and Litigation.
    (b) Redelegation of authority. A settlement authority may be 
redelegated, in writing, to a subordinate judge advocate or civilian 
attorney. The Chief, AFLOA/JACC may redelegate up to $25,000, in 
writing, to paralegals assigned to AFLOA/JACC and, upon request, may 
authorize installation Staff

[[Page 83696]]

Judge Advocates to redelegate their settlement authority to paralegals 
under their supervision.
    (c) Authority to reduce, withdraw, and restore settlement 
authority. Any superior settlement authority may reduce, withdraw, or 
restore delegated authority.
    (d) Settlement negotiations. A settlement authority may settle a 
claim filed in any amount for a sum within the delegated authority. 
Unsettled claims in excess of the delegated authority will be sent to 
the next highest level with settlement authority. Unsuccessful 
negotiations at one level do not bind higher authority.


Sec.  842.78  Settlement agreements.

    The claimant must sign a settlement agreement and general release 
before any payment is made.


Sec.  842.79   Administrative claim; when presented.

    When the Air Force is the proper agency to receive a claim pursuant 
to 28 CFR 14.2(b), for purposes of the provisions of 28 U.S.C. 2401(b), 
2672 and 2675, a claim shall be deemed to have been presented when it 
is received by:
    (a) The office of the Staff Judge Advocate of the Air Force 
installation nearest the location of the incident; or
    (b) The Claims and Tort Litigation Division, 1500 West Perimeter 
Road, Suite 1700, Joint Base Andrews, MD 20762.

Subpart L--[Redesignated as Subpart J]

0
65. Redesignate subpart L, consisting of Sec. Sec.  842.92 through 
842.99, as subpart J, consisting of Sec. Sec.  842.80 through 842.87, 
respectively.

0
66. Revise newly redesigated Sec.  842.80 to read as follows:


Sec.  842.80  Scope of this subpart.

    This subpart describes how to assert, administer, and collect 
claims for damage to or loss or destruction of government property and 
lost wages of Air Force servicemembers through negligent or wrongful 
acts. It does not cover admiralty, hospital recovery, or 
nonappropriated fund claims.

0
67. Amend newly redesignated Sec.  842.81 by revising paragraph (a) to 
read as follows:


Sec.  842.81  Delegations of authority.

    (a) Settlement authority. (1) The following individuals have 
delegated authority to settle, compromise, suspend, or terminate action 
on claims asserted for $100,000 or less and to accept full payment on 
any claim:
    (i) The Judge Advocate General.
    (ii) The Deputy Judge Advocate General.
    (iii) The Director of Civil Law.
    (iv) Chief, Deputy Chief, and Branch Chiefs, Claims and Tort 
Litigation Staff.
    (2) Installation staff judge advocates have authority to assert 
claims in any amount, accept full payment on any claim and to 
compromise, suspend or terminate action on claims asserted for $25,000 
or less.
* * * * *

0
68. Amend newly redesignated Sec.  842.82 by revising paragraphs 
(a)(2), (c), and (e) to read as follows:


Sec.  842.82  Assertable claims.

* * * * *
    (a) * * *
    (2) Less than $100 but collection is practicable and economical.
* * * * *
    (c) The claim is for property damage arising from the same incident 
as a hospital recovery claim.
* * * * *
    (e) The claim is assertable as a counterclaim under an 
international agreement. (The claim should be processed under subpart G 
of this part).
* * * * *

0
69. Amend newly redesignated Sec.  842.83 by revising paragraph (b)(2) 
and adding paragraph (f) to read as follows:


Sec.  842.83  Non-assertable claims.

* * * * *
    (b) * * *
    (2) Caused by a person who has accountability and responsibility 
for the damaged property under the Report of Survey system.
* * * * *
    (f) Loss or damage caused by an employee of another federal agency 
while the employee was acting in the scope of his employment.

0
70. Revise newly redesignated Sec.  842.85 to read as follows:


Sec.  842.85  Referring a claim to the US Attorney or the Department of 
Justice.

    If collection efforts are unsuccessful, AFLOA/JACC may refer a 
claim to the appropriate US Attorney's Office or the Department of 
Justice for initiation of a lawsuit.

Subpart M--[Redesignated as Subpart K]

0
71. Redesignate subpart M, consisting of Sec. Sec.  842.100 through 
842.114, as subpart K, consisting of Sec. Sec.  842.88 through 842.102, 
respectively.

0
72. Revise newly redesignated Sec.  842.88 to read as follows:


Sec.  842.88  Scope of this subpart.

    This subpart establishes policies and procedures for all 
administrative claims under the National Guard Claims Act for which the 
Air Force has assigned responsibility. Unless otherwise outlined in 
this subpart, follow procedures as outlined in subpart E of this part 
for claims arising out of noncombat activities.

0
73. Revise newly redesignated Sec.  842.89 to read as follows:


Sec.  842.89  Definitions.

    (a) Air National Guard (ANG). The federally recognized Air National 
Guard of each state, the District of Columbia, the Commonwealth of 
Puerto Rico, the Virgin Islands, and Guam.
    (b) ANG member. An ANG member is one who is performing duty under 
32 U.S.C., section 316, 502, 503, 504, or 505 for which the member is 
entitled to pay from the United States or for which the member has 
waived pay from the United States.
    (c) ANG duty status--(1) Active federal service. ANG members may 
serve on active Federal duty under 10 U.S.C. to augment the active Air 
Force under certain circumstances or for certain types of duty or 
training (e.g., overseas training exercises and ANG alert duty). Duty 
under 10 U.S.C. does not fall under this subpart.
    (2) Federally funded duty. ANG members perform specified federally 
funded duty or training under 32 U.S.C. such as weekend drills, annual 
training, field exercises, range firing, military schooling, full time 
unit support, or recruiting duties. Duty under 32 U.S.C. falls under 
this subpart for noncombat activities.
    (3) State duty. State duty is duty not authorized by federal law 
but required by the governor of the state and paid for from state 
funds. Such duty includes civil emergencies (natural or other 
disasters), civil disturbances (riots and strikes), and transportation 
requirements for official state functions, public health, or safety. 
State duty does not fall under this subpart.
    (d) ANG technicians. An ANG technician is a Federal employee 
employed under 32 U.S.C. 709. Tort claims arising out of his or her 
activity are settled under the Federal Tort Claims Act (FTCA).

0
74. Amend newly redesignated Sec.  842.90 by:
0
a. Removing the introductory text.
0
b. Revising paragraphs (a)(4) and (5) and (b).
0
c. Removing paragraph (f)(1) and redesignating paragraphs (f)(2) and 
(3) as (f)(1) and (2), respectively.
    The revisions read as follows:

[[Page 83697]]

Sec.  842.90  Delegations of authority.

    (a) * * *
    (4) The SJAs of the Air Force component commander of the US 
geographic combatant commands for claims arising within their 
respective combatant command areas of responsibility have delegated 
authority to settle claims payable or to deny claims filed for $25,000 
or less.
    (5) SJAs of GCMs in PACAF and USAFE have delegated authority to 
settle claims payable, and deny claims filed, for $15,000 or less.
    (b) Redelegation of authority. A settlement authority may 
redelegate up to $25,000 of settlement authority to a subordinate judge 
advocate or civilian attorney. This redelegation must be in writing and 
can be for all claims or limited to a single claim. The Chief, AFLOA/
JACC may redelegate up to $25,000, in writing, to paralegals assigned 
to AFLOA/JACC and, upon request, may authorize installation Staff Judge 
Advocates to redelegate their settlement authority to paralegals under 
their supervision.
* * * * *

0
75. Revise newly redesignated Sec.  842.91 to read as follows:


Sec.  842.91  Filing a claim.

    (a) Elements of a proper claim. A claim is must be filed on a 
Standard Form 95 or other written document. It must be signed by the 
Claimant or authorized agent, be for money damages in a sum certain, 
and lay out a basic statement as to the nature of the claim that will 
allow the Air Force to investigate the allegations contained therein.
    (b) Amending a claim. A claimant may amend a claim at any time 
prior to final action. To amend a claim the claimant or his or her 
authorized agent must submit a written, signed demand.

0
76. Revise newly redesignated Sec.  842.92 to read as follows:


Sec.  842.92  Advance payments.

    Subpart P of this part sets forth procedures for such payments.

0
77. Revise newly redesignated Sec.  842.93 to read as follows:


Sec.  842.93  Statute of limitations.

    (a) A claim must be filed in writing within 2 years after it 
accrues. It is deemed to be filed upon receipt by The Judge Advocate 
General, USAF/JACC, or a Staff Judge Advocate of the Air Force. A claim 
accrues when the claimant discovers or reasonably should have 
discovered the existence of the act that resulted in the claimed loss. 
The same rules governing accrual pursuant to the Federal Tort Claims 
Act should be applied with respect to the National Guard Claims Act. 
Upon receipt of a claim that properly belongs with another military 
department, the claim is promptly transferred to that department.
    (b) The statutory time period excludes the day of the incident and 
includes the day the claim was filed.
    (c) A claim filed after the statute of limitations has run is 
considered if the US is at war or in an armed conflict when the claim 
accrues or if the US enters a war or armed conflict after the claim 
accrues, and if good causes shows how the war or armed conflict 
prevented the claimant from diligently filing the claim within the 
statute of limitations. But in no case will a claim be considered if 
filed more than two years after the war or armed conflict ends.

0
78. Revise newly redesignated Sec.  842.94 to read as follows:


Sec.  842.94  Who may file a claim.

    The following individuals may file a claim under this subpart.
    (a) Owners of the property or their authorized agents may file 
claims for property damage.
    (b) Injured persons or their duly authorized agents may file claims 
for personal injury.
    (c) Duly appointed guardians of minor children or any other persons 
legally entitled to do so under applicable local law may file claims 
for minors' personal injuries.
    (d) Executors or administrators of a decedent's estate or another 
person legally entitled to do so under applicable local law, may file 
claims based on:
    (1) An individual's death.
    (2) A cause of action surviving an individual's death.
    (e) Insurers with subrogation rights may file claims for losses 
paid in full by them. The parties may file claims jointly or 
individually, to the extent of each party's interest, for losses 
partially paid by insurers with subrogation rights.
    (f) Authorized agents signing claims show their title or legal 
capacity and present evidence of authority to present the claims.

0
79. Revise newly redesignated Sec.  842.95 to read as follows:


Sec.  842.95  Who are proper claimants.

    (a) Citizens and inhabitants of the United States. US inhabitants 
includes dependents of the US military personnel and federal civilian 
employees temporarily outside the US for purposes of US Government 
service.
    (b) US military personnel and civilian employees. Note: These 
personnel are not proper claimants for claims for personal injury or 
death that occurred incident to their service.
    (c) Foreign military personnel when the damage or injury occurs in 
the US. Do not pay for claims under the MCA for personal injury or 
death of a foreign military personnel that occurred incident to their 
service.
    (d) States, state agencies, counties, or municipalities, or their 
political subdivisions.
    (e) Subrogees of proper claimants to the extent they have paid for 
the claim in question.

0
80. Revise newly redesignated Sec.  842.96 to read as follows:


Sec.  842.96  Who are not proper claimants.

    (a) Governments of foreign nations, their agencies, political 
subdivisions, or municipalities.
    (b) Agencies and nonappropriated fund instrumentalities of the US 
Government including the District of Columbia government.
    (c) Inhabitants of foreign countries.
    (d) The state, territory and its political subdivisions whose Air 
National Guard member caused the loss.
    (e) Subrogees of the claimants in paragraphs (a) through (d) of 
this section.

0
81. Revise newly redesignated Sec.  842.97 to read as follows:


Sec.  842.97  Claims payable.

    Claims arising from noncombat activities of the United States when 
caused by ANG members performing duty under 32 U.S.C. and acting within 
the scope of their employment, whether or not such injuries or damages 
arose out of their negligent or wrongful acts or omissions.

0
82. In newly redesignated Sec.  842.98, revise paragraphs (a), (b), and 
(c) to read as follows:


Sec.  842.98  Claims not payable.

* * * * *
    (a) Claims covered by the FTCA, FCA, IACA, 10 U.S.C. 2734a and 
2734b, Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 9801-9804, 
9806, MCA, 10 U.S.C. 2733, or covered under the Military Personnel and 
Civilian Employees' Claims Act (MPCECA), 31 U.S.C. 3701, 3721.
    (b) NGCA claims arising from noncombat activities in the US are not 
covered by the FTCA because more elements are needed to state an FTCA 
claim than are needed to state a claim under the NGCA for noncombat 
activities. All FTCA claims are based on elements of traditional tort 
liability (i.e., duty, breach, causation, and damages); that is, they 
are fault based. Noncombat

[[Page 83698]]

activity claims under the NGCA are based solely on causation and 
damages. Because NGCA claims for noncombat activities are not fault 
based, they are not covered by the FTCA.
    (c) See subpart E of this part for other claims not payable.
* * * * *

0
83. Revise newly redesignated Sec.  842.99 to read as follows:


Sec.  842.99  Applicable law.

    (a) Federal preemption. Many of the exclusions in this subpart are 
based upon the wording of 28 U.S.C. 2680 or other federal statutes or 
court decisions interpreting the Federal Tort Claims Act. Federal case 
law interpreting the same exclusions under the Federal Tort Claims Act 
is applied to the National Guard Claims Act. Where state law differs 
with federal law, federal law prevails.
    (b) Extent of liability. Where the claim arises is important in 
determining the extent of liability.
    (1) Applicable law. When a claim arises in the United States, its 
territories or possessions, the same law as if the claim was cognizable 
under the FTCA will be applied.
    (2) Claims in foreign countries. In claims arising in a foreign 
country, where the claim is for personal injury, death, or damage to or 
loss of real or personal property caused by an act or omission alleged 
to be negligent, wrongful, or otherwise involving fault of military 
personnel or civilian officers or employees of the United States acting 
within the scope of their employment, liability or the United States is 
determined according to federal case law interpreting the FTCA. Where 
the FTCA requires application of the law of the place where the act or 
omission occurred, settlement authorities will use the rules set forth 
in the currently adopted edition of the Restatement of the Law, 
published by the American Law Institute, to evaluate the liability of 
the Air Force, subject to the following rules:
    (i) Absolute or strict liability will not apply for claims not 
arising from noncombat activities.
    (ii) Hedonic damages are not payable.
    (iii) The collateral source doctrine will not apply.
    (iv) Joint and several liability does not apply. Payment will be 
made only upon the portion of loss, damage, injury or death 
attributable to the Armed Forces of the United States.
    (v) Future economic loss will be discounted to present value after 
deducting for federal income taxes and, in cases of wrongful death, 
personal consumption.
    (c) Claims not payable. Do not approve payment for:
    (1) Punitive damages.
    (2) Cost of medical or hospital services furnished at US expense.
    (3) Cost of burial expenses paid by the United States.
    (d) Settlement by insurer or joint tortfeasor. When settlement is 
made by an insurer or joint tortfeasor and an additional award is 
warranted, an award may be made if both of the following are present:
    (1) The United States is not protected by the release executed by 
the claimant.
    (2) The total amount received from such source is first deducted.

0
84. Revise newly redesignated Sec.  842.100 to read as follows:


Sec.  842.100  Appeal of final denials.

    This section explains the steps to take when a denial is appealed.
    (a) A claimant may appeal the final denial of the claim. The 
claimant sends the request, in writing, to the settlement authority 
that issued the denial letter within 60 days of the date the denial 
letter was mailed. The settlement authority may waive the 60 day time 
limit for good cause.
    (b) Upon receipt of the appeal, the original settlement authority 
reviews the appeal.
    (c) Where the settlement authority does not reach a final agreement 
on an appealed claim, he or she sends the entire claim file to the next 
higher settlement authority, who is the appellate authority for that 
claim. Any higher settlement authority may act upon an appeal.
    (d) The decision of the appellate authority is the final 
administrative action on the claim.

0
85. Revise newly redesignated Sec.  842.101 to read as follows:


Sec.  842.101  Government's right of subrogation, indemnity, and 
contribution.

    The Air Force becomes subrogated to the rights of the claimant upon 
settling a claim. The Air Force has the rights of contribution and 
indemnity permitted by the law of the situs or under contract. Do not 
seek contribution or indemnity from ANG members whose conduct gave rise 
to Government liability.

0
86. Revise newly redesignated Sec.  842.102 to read as follows:


Sec.  842.102  Attorney fees.

    In the settlement of any claim pursuant to 32 U.S.C. 715 and this 
subpart, attorney fees will not exceed 20 percent of any award provided 
that when a claim involves payment of an award over $1,000,000, 
attorney fees on that part of the award exceeding $1,000,000 may be 
determined by the Secretary of the Air Force. For the purposes of this 
section, an award is deemed to be the cost to the United States at the 
time of purchase of a structured settlement, and not its future value.

Subpart N--[Redesignated as Subpart L]

0
87. Redesignate subpart N, consisting of Sec. Sec.  842.115 through 
842.125 as subpart L, consisting of Sec. Sec.  842.103 through 842.113, 
respectively.

0
88. Revise newly redesignated Sec.  842.103 to read as follows:


Sec.  842.103  Scope of this subpart.

    This subpart explains how the United States asserts and settles 
claims for costs of medical care, against third parties under the 
Federal Medical Care Recovery Act (FMCRA) (10 U.S.C. 1095) and various 
other laws.

0
89. Amend newly redesignated Sec.  842.104 by revising the introductory 
text and paragraph (a) and adding paragraphs (h) and (i) to read as 
follows:


Sec.  842.104  Definitions.

    This section defines terms which are used within this subpart.
    (a) Medical Cost Reimbursement Program Regional Field Offices. The 
Chief of the Medical Cost Reimbursement Program (MCRP) Branch 
determines and assigns geographic responsibility for all regional field 
offices. Each field office is responsible for investigating all 
potential claims and asserting claims within their jurisdiction for the 
cost of medical care provided by either a Medical Treatment Facility or 
at a civilian facility through Tricare.
* * * * *
    (h) Accrued pay. The total of all pay accrued to the account of an 
active duty member during a period when the member is unable to perform 
military duties. It does not include allowances.
    (i) Future care. Medical care reasonably expected to be provided or 
paid for in the future treatment of an injured party as determined 
during the investigative process.

0
90. Revise newly redesignated Sec.  842.105 to read as follows:


Sec.  842.105  Delegations of authority.

    (a) Settlement authority. The following individuals have delegated 
authority to settle, compromise, or waive MCRP claims for $300,000 or 
less and to accept full payment on any claim:
    (1) The Judge Advocate General.
    (2) The Deputy Judge Advocate General.

[[Page 83699]]

    (3) The Director of Civil Law.
    (4) Chief, Claims and Tort Litigation Staff and the Chief, MCRP.
    (b) Redelegation of authority. The individuals described in 
paragraph (a) of this section may re-delegate a portion or all of their 
authority to subordinates, subject to the following limitations:
    (1) SJAs, when given Medical Cost Reimbursement (MCR) claims 
jurisdiction, are granted authority to waive, compromise, or settle 
claims in amounts of $25,000 or less. This authority may be re-
delegated in writing with authority to re-delegate to subordinates.
    (2) SJAs of numbered Air Forces, when given MCR claims 
jurisdiction, are granted authority to waive, compromise, or settle 
claims in amounts of $40,000 or less. This authority may be re-
delegated in writing with authority to re-delegate to subordinates.
    (3) SJAs of single base GCMs, the SJAs of GCMs in PACAF and USAFE, 
and the SJAs of each Air Force base, station, or fixed installation 
have delegated authority to compromise or waive claims for $15,000 or 
less and to accept full payment on any claim.
    (c) Authority to assert a claim. Each settlement authority has 
authority to assert a claim in any amount for the reasonable value of 
medical care.
    (d) Authority to reduce, withdraw, and restore settlement 
authority. Any superior settlement authority may reduce, withdraw, or 
restore delegated authority.
    (e) Settlement negotiations. A settlement authority may settle a 
claim filed for an amount within the delegated settlement authority. 
Claims in excess of the delegated authority must be approved by the 
next higher settlement authority. Unsuccessful negotiations at one 
level do not bind higher authority.

    Note to paragraph (e): Telephonic approvals, in the discretion 
of the higher settlement authority, are authorized.

    (f) Special exceptions. Only the Department of Justice (DOJ) may 
approve claims involving:
    (1) Compromise or waiver of a claim for more than $300,000.
    (2) Settlement previously referred to DOJ.
    (3) Settlement where a third party files suit against the US or the 
injured party arising out of the same incident.

0
91. Revise newly redesignated Sec.  842.107 to read as follows:


Sec.  842.107  Nonassertable claims.

    The following are considered nonassertable claims and should not be 
asserted:
    (a) Claims against any department, agency, or instrumentality of 
the United States. ``Agency or instrumentality'' includes any self-
insured nonappropriated fund activity whether revenue producing, 
welfare, or sundry. The term does not include private associations.
    (b) Claims for care furnished a veteran by the Department of 
Veterans Affairs (VA) for service connected disability. However, claims 
may be asserted for the reasonable value of medical care an Air Force 
member receives prior to his or her discharge and transfer to the VA 
facility or when the Air Force has reimbursed the VA facility for the 
care.
    (c) Claims for care furnished a merchant seaman under 42 U.S.C. 
249. A claim against the seaman's employer should not be filed.
    (d) Government contractors. In claims in which the United States 
must reimburse the contractor for a claim according to the terms of the 
contract, settlement authorities investigate the circumstances 
surrounding the incident to determine if assertion is appropriate. If 
the US is not required to reimburse the contractor, the MCR authority 
may assert a claim against the contractor.
    (e) Foreign governments. Settlement authorities investigate any 
claims that might be made against foreign governments, their political 
subdivisions, armed forces members or civilian employees.
    (f) U.S. personnel. Claims are not asserted against members of the 
uniformed services; employees of the US, its agencies or 
instrumentalities; or an individual who is a dependent of a service 
member or employee at the time of assertion unless they have insurance 
to pay the claim, they were required by law or regulation to have 
insurance which would have covered the Air Force, or their actions, 
which necessitated the medical treatment provided at government 
expense, constituted willful misconduct or gross negligence.

0
92. Amend newly redesignated Sec.  842.108 by revising paragraphs (a) 
and (b) to read as follows:


Sec.  842.108  Asserting the claim.

* * * * *
    (a) MCR personnel assert a claim against a tortfeasor or other 
third party using a formal letter on Air Force stationery. The 
assertion is made against all potential payers, including insurers. The 
demand letter should state the legal basis for recovery and 
sufficiently describe the facts and circumstances surrounding the 
incident giving rise to medical care. Applicable bases of recovery 
include US status as a third-party beneficiary under various types of 
insurance policies, workers' compensation laws, no-fault laws, or other 
Federal statutes, including Coordination of Benefits (COB) or FMCRA.
    (b) The MCR authority must promptly notify the injured parties or 
their legal representatives, in writing, that the United States will 
attempt to recover from the third parties the reasonable value of 
medical care furnished or to be furnished and that they:
    (1) Should seek advice from a legal assistance officer or civilian 
counsel.
    (2) Must cooperate in the prosecution of all actions of the United 
States against third parties.
    (3) Must furnish a complete statement regarding the facts and 
circumstances surrounding the incident which caused the injury.
    (4) Must not execute a release or settle any claim which exists as 
a result of the injury without prior notice to the MCR authority.
* * * * *

0
93. Revise newly redesignated Sec.  842.109 to read as follows:


Sec.  842.109  Referring a claim to the US Attorney.

    (a) All cases that require forwarding to the DoJ must be routed 
through the Chief, MCRP. The MCR authority ensures that personnel 
review all claims for possible referral not later than two years after 
the date of the incident for tort based cases.
    (b) The United States or the injured party on behalf of the United 
States must file suit within 3 years after an action accrues. This is 
usually 3 years after the initial treatment is provided in a federal 
medical facility or after the initial payment is made by Tricare, 
whichever is first.

0
94. Revise newly redesignated Sec.  842.111 to read as follows:


Sec.  842.111  Recovery rates in government facilities.

    The Federal Register contains the rates set by the Office of 
Management and Budget, of which judges take judicial notice. Apply the 
rates in effect at the time of care to claims.

0
95. Revise newly redesignated Sec.  842.112 to read as follows:


Sec.  842.112  Waiver and compromise of United States interest.

    Waivers and compromises of government claims can be made. This 
section lists the basic guidance for each action. (See this subpart for 
claims involving waiver and compromise of amounts in excess of 
settlement authorities' delegated amounts.)
    (a) Convenience of the Government. When compromising or waiving a 
claim

[[Page 83700]]

for convenience of the Government, settlement authorities should 
consider the following factors:
    (1) Risks of litigation.
    (2) Questionable liability of the third party.
    (3) Costs of litigation.
    (4) Insurance (Uninsured or Underinsured Motorist and Medical 
Payment Coverage) or other assets of the tortfeasor available to 
satisfy a judgment for the entire claim.
    (5) Potential counterclaim against the US.
    (6) Jury verdict expectancy amount.
    (7) Amount of settlement with proposed distribution.
    (8) Cost of any future care.
    (9) Tortfeasor cannot be located.
    (10) Tortfeasor is judgment proof.
    (11) Tortfeasor has refused to pay and the case is too weak for 
litigation.
    (b) Hardship on the injured party. When compromising or waiving a 
claim to avoid undue hardship on the injured party, settlement 
authorities should consider the following factors:
    (1) Permanent disability or disfigurement of the injured party.
    (2) Decreased earning power of the injured party.
    (3) Out of pocket losses to the injured party.
    (4) Financial status of the injured party.
    (5) Pension rights of the injured party.
    (6) Other government benefits available to the injured party.
    (7) An offer of settlement from a third party which includes 
virtually all of the thirty party's assets, although the amount is 
considerably less than the calculation of the injured party's damages.
    (8) Whether the injured party received excessive treatment.
    (9) Amount of settlement with proposed distribution, including 
reductions in fees or damages by other parties, medical providers, or 
attorneys in order to reduce the hardship on the injured party.
    (c) Compromise or waiver. A compromise or waiver can be made upon 
written request from the injured party or the injured party's legal 
representative.

0
96. Revise newly redesignated Sec.  842.113 to read as follows:


Sec.  842.113  Reconsideration of a waiver for undue hardship.

    A settlement authority may reconsider its previous action on a 
request for waiver or compromise whether requested or not. 
Reconsideration is normally on the basis of new evidence or discovery 
of errors in the waiver submission or settlement, but can be based upon 
a re-evaluation of the claim by the settlement authority.

Subpart O--[Removed]

0
97. Remove subpart O, consisting of Sec. Sec.  842.126 through 842.136.

0
98. Add new subpart M, consisting of Sec. Sec.  842.114 through 
842.117, to read as follows:

Subpart M--Nonappropriated Fund Claims

Sec.
842.114 Scope of this subpart.
842.115 Definitions.
842.116 Payment of claims against NAFIs.
842.117 Claims by customers, members, participants, or authorized 
users.


Sec.  842.114  Scope of this subpart.

    This subpart describes how to settle claims for and against the 
United States for property damage, personal injury, or death arising 
out of the operation of nonappropriated fund instrumentalities (NAFIs). 
Unless stated below, such claims will follow procedures outlined in 
other subparts of this part for the substantive law applicable to the 
particular claim. For example, a NAFI claim adjudicated under the 
Federal Tort Claims Act will follow procedures in this subpart as well 
as subpart K of this part.


Sec.  842.115   Definitions.

    (a) Army and Air Force Exchange Service (AAFES). The Army and Air 
Force Exchange Service is a joint command of the Army and Air Force, 
under the jurisdiction of the Chiefs of Staff of the Army and Air 
Force, which provides exchange and motion picture services to 
authorized patrons.
    (b) Morale, welfare, and recreation (MWR) activities. Air Force MWR 
activities are activities operated directly or by contract which 
provide programs to promote morale and well-being of the Air Force's 
military and civilian personnel and their dependents. They may be 
funded wholly with appropriated funds, primarily with nonappropriated 
funds (NAF), or with a combination of appropriated funds and NAFs.
    (c) Nonappropriated funds. Nonappropriated funds are funds 
generated by Department of Defense military and civilian personnel and 
their dependents and used to augment funds appropriated by the Congress 
to provide a comprehensive morale-building, welfare, religious, 
educational, and recreational program, designed to improve the well-
being of military and civilian personnel and their dependents.
    (d) Nonappropriated funds instrumentality. A nonappropriated fund 
instrumentality is a Federal Government instrumentality established to 
generate and administer nonappropriated funds for programs and services 
contributing to the mental and physical well-being of personnel.


Sec.  842.116   Payment of claims against NAFIs.

    Substantiated claims against NAFIs must not be paid solely from 
appropriated funds. Claims are sent for payment as set out in this 
subpart. Do not delay paying a claimant because doubt exists whether to 
use appropriated funds or NAFs. Pay the claim initially from 
appropriated funds and decide the correct funding source later.


Sec.  842.117   Claims by customers, members, participants, or 
authorized users.

    (a) Customer complaints. Do not adjudicate claims complaints or 
claims for property loss or damage under this subpart that the local 
NAFI activity can satisfactorily resolve.
    (b) Claims generated by concessionaires. Most concessionaires must 
have commercial insurance. Any unresolved claims or complaints against 
concessionaires or their insurers are sent to the appropriate 
contracting officers.

Subpart P--[Redesignated as Subpart N]

0
99. Redesignate subpart P, consisting of Sec. Sec.  842.137 through 
842.143, as subpart N, consisting of Sec. Sec.  842.118 through 
842.124.

0
100. Revise newly redesignated Sec.  842.118 to read as follows:


Sec.  842.118  Scope of this subpart.

    (a) This subpart explains how to process certain administrative 
claims:
    (1) Against the United States for property damage, personal injury, 
or death, arising out of Air Force assigned noncombat missions 
performed by the Civil Air Patrol (CAP), as well as certain other Air 
Force authorized missions performed by the CAP in support of the 
Federal Government.
    (2) In favor of the United States for damage to US Government 
property caused by CAP members or third parties.
    (b) Unless stated in this subpart, such claims will follow 
procedures outlined in other subparts of this part for the substantive 
law applicable to the particular claim. For example, a CAP claim 
adjudicated under the Military Claims Act will follow procedures in 
this subpart as well as subpart E of this part.

[[Page 83701]]

Sec. Sec.  842.120 and 842.121  [Removed]

0
101. Remove newly redesignated Sec. Sec.  842.120 and 842.121.


Sec. Sec.  842.122 through 842.124  [Redesignated as Sec. Sec.  842.120 
through 842.122]

0
102. Newly redesignated Sec. Sec.  842.122 through 842.124 are further 
redesignated as Sec. Sec.  842.120 through 842.122, respectively.

Subpart Q--[Redesignated as Subpart O]

0
103. Redesignate subpart Q, consisting of Sec. Sec.  842.144 through 
842.150, as subpart O, consisting of Sec. Sec.  842.123 through 
842.129.

0
104. Revise newly redesignated Sec.  842.123 to read as follows:


Sec.  842.123  Scope of this subpart.

    This subpart tells how to make an advance payment before a claim is 
filed or finalized under the Military Claims, Foreign Claims and 
National Guard Claims Acts.

0
105. In newly redesignated Sec.  842.124, revise paragraph (c)(4) to 
read as follows:


Sec.  842.124  Delegation of authority.

* * * * *
    (c) * * *
    (4) SJAs of the Air Force component commander of the U.S. 
geographic combatant commands for claims arising within their 
respective combatant command areas of responsibility.
* * * * *

0
106. In newly redesignated Sec.  842.126, revise paragraph (b) to read 
as follows:


Sec.  842.126  When authorized.

* * * * *
    (b) The potential claimant has an immediate need amounting to a 
hardship for food, shelter, medical or burial expenses, or other 
necessities. In the case of a commercial enterprise, severe financial 
loss or bankruptcy will result if the Air Force does not make an 
advance payment.
* * * * *

Henry Williams,
Acting Air Force Federal Liaison Officer.
[FR Doc. 2016-25554 Filed 11-21-16; 8:45 am]
BILLING CODE 5001-10-P