General Claims Regulations

Published date20 August 2020
Citation85 FR 51374
Record Number2020-15408
SectionProposed rules
CourtNavy Department
Federal Register, Volume 85 Issue 162 (Thursday, August 20, 2020)
[Federal Register Volume 85, Number 162 (Thursday, August 20, 2020)]
                [Proposed Rules]
                [Pages 51374-51394]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-15408]
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                DEPARTMENT OF DEFENSE
                Department of the Navy
                32 CFR Part 750
                [Docket ID: USN-2018-HQ-0012]
                RIN 0703-AB22
                General Claims Regulations
                AGENCY: Department of the Navy, Department of Defense.
                ACTION: Proposed rule.
                -----------------------------------------------------------------------
                SUMMARY: This proposed rule updates and consolidates the Department of
                the Navy (DON) regulations concerning General Claims Regulations, and
                the processes and procedures to be used for filing specific claims
                against and in favor of the DON. Upon completion of this consolidation,
                the obsolete parts will be removed from the CFR.
                DATES: Consideration will be given to all comments received by
                September 21, 2020.
                ADDRESSES: You may submit comments, identified by docket number and/or
                RIN number and title, by any of the following methods:
                 Federal Rulemaking Portal: http://www.regulations.gov. Follow the
                instructions for submitting comments.
                 Mail: DoD cannot receive written comments at this time due to the
                COVID-19 pandemic. Comments should be sent electronically to the docket
                listed above.
                 Instructions: All submissions received must include the agency name
                and docket number or Regulatory Information Number (RIN) for this
                document. The general policy is for submissions to be made available
                for public viewing at http://www.regulations.gov without change,
                including any personal identifiers or contact information.
                FOR FURTHER INFORMATION CONTACT: Mr. Randy Russell, Claims and Tort
                Litigation Division (Code 15), Office of the Judge Advocate General,
                1322 Patterson Avenue SE, Washington Navy Yard, DC 20374, telephone:
                202-685-4600.
                SUPPLEMENTARY INFORMATION:
                Purpose of the Proposed Rule
                 The revision clarifies the rule for public use and consolidates DON
                claims information into one part.
                Revisions Implemented by This Rule
                 This rule consolidates 32 CFR parts 751, 752, 755, 756, and 757 and
                their underlying subparts into 32 CFR part 750. Primary revisions are
                deletion of unnecessary information. Although there are no substantive
                changes, many of the sub-parts were clarified to allow a better
                understanding of the claims process.
                Legal Authority for This Program
                 The Military Personnel and Civilian Employees' Claims Act (PCA) is
                codified at 31 U.S.C. 3721. Claims for Redress of injuries to property
                by service members are codified at Article 139 of the Uniform Code of
                Military Justice, 10 U.S.C. 939. Additional claims statutes are
                codified as follows: The Federal Claims Collection Act (FCCA): 31
                U.S.C. 3711; Third Party Payers' Act (TPPA), 10 U.S.C. 1095; and
                Medical Care Recovery Act (MCRA), 42 U.S.C. 2651(a). DON's General
                Claims Regulations for implementing the Federal Tort Claims Act (FTCA):
                28 U.S.C. 1346(b), 2671-2672, and 2674-2680; Military Claims Act (MCA),
                10 U.S.C. 2733; and the Non-Scope Claims Act (NSCA), 10 U.S.C. 2737.
                Regulatory History
                 The DON last updated 32 CFR parts 750 and 751 on October 15, 2008;
                part 752 on October 3, 2007; and parts 756 and 757 on September 19,
                2007. The internal Navy document, JAG Instruction 5890.1A,
                ``Administrative Processing and Consideration of Claims on Behalf and
                Against the United States'' (available at https://www.jag.navy.mil/library/instructions/5890_1a.pdf), was originally promulgated on
                January 17, 1991, and updated in February 1992. The JAG Instruction was
                slightly revised in 2005 with changes to the rule in 2007.
                Regulatory Analyses
                Regulatory Planning and Review Executive Orders 12866, 13563, and 13771
                 Executive Order 12866 (Regulatory Planning and Review) and
                Executive Order 13563 (Improving Regulation and Regulatory Review)
                direct agencies to assess the 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, distributive
                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. Executive Order 13771
                (Reducing Regulation and Controlling Regulatory Costs) directs agencies
                to reduce regulation and control regulatory costs and provides that
                ``for every one new regulation
                [[Page 51375]]
                issued, at least two prior regulations be identified for elimination,
                and that the cost of planned regulations be prudently managed and
                controlled through a budgeting process.'' This rule is not significant
                under Executive Order (E.O.) 12866, ``Regulatory Planning and Review;''
                therefore, E.O. 13771, ``Reducing Regulation and Controlling Regulatory
                Costs'' does not apply.
                Congressional Review Act (5 U.S.C. 801, et seq.)
                 Under the Congressional Review Act, a major rule may not take
                effect until at least 60 days after submission to Congress of a report
                regarding the rule. A major rule is one that would have an annual
                effect on the economy of $100 million or more or have certain other
                impacts. This rule is not a major rule under the Congressional Review
                Act.
                Impact on Small Entities
                 The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
                amended, requires Federal agencies to consider the potential impact of
                regulations on small entities during rulemaking. The term ``small
                entities'' comprises small businesses, not-for-profit organizations
                that are independently owned and operated and are not dominant in their
                fields, and governmental jurisdictions with populations of less than
                50,000. This rule will not impose any impacts on any entities. This
                means that there will be no economic impacts on any entities.
                Therefore, the DoD under 5 U.S.C. 605 certifies that this rule will not
                have a significant economic impact on a substantial number of small
                entities.
                Unfunded Mandates Reform Act
                 Section 202 of the Unfunded Mandates Reform Act of 1995 requires
                that agencies assess anticipated costs and benefits before issuing any
                rule whose mandates require spending in any one year of $100M in 1995
                dollars, updated annually for inflation. That threshold level is
                currently approximately $140M. This rule will not mandate any
                requirements for State, local, or tribal governments or the private
                sector.
                Collection of Information
                 It has been determined this regulation does not impose reporting or
                recordkeeping requirements under the Paperwork Reduction Act of 1995.
                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 proposed rule does not have federalism implications
                that warrant the preparation of a federalism assessment in accordance
                with Executive Order 13132.
                List of Subjects in 32 CFR Part 750
                 Claims, Government employees, Health care, Military law, Military
                personnel, Vessels.
                 Accordingly, 32 CFR part 750 is proposed to be revised to read as
                follows:
                PART 750--GENERAL CLAIMS REGULATIONS
                Subpart A--General Provision for Claims
                Sec.
                750.1 Scope of subpart A.
                750.2 Statutory authority.
                750.3 Claims: In general.
                750.4 Claims: Proper claimants.
                750.5 Claims: Presentment.
                750.6 Claims: Responsibility.
                750.7 Claims: Settlement and release.
                750.8 Claims: Payment.
                750.9 Claims: Denial.
                750.10 Claims: Single service responsibility.
                Subpart B--Claims Under the Federal Tort Claims Act (FTCA)
                750.11 Scope of subpart B.
                750.12 Statutory authority.
                750.13 Exclusiveness of remedy.
                750.14 Definitions.
                750.15 Scope of liability.
                750.16 Statute of limitations.
                750.17 Delegations of adjudicating authority.
                750.18 The administrative claim.
                750.19 Information and supporting documents.
                750.20 Damages.
                750.21 Amendment of the claim.
                750.22 Settlement and payment.
                750.23 Denial of the claim.
                750.24 Reconsideration.
                750.25 Suits under the Federal Tort Claims Act.
                750.26 Attorney fees.
                Subpart C--Claims Under the Military Claims Act (MCA)
                750.27 Scope of subpart C.
                750.28 Statutory authority.
                750.29 Claims payable.
                750.30 Claims not payable.
                750.31 Statute of limitations.
                750.32 Filing the claim.
                750.33 Applicable law.
                750.34 Measure of damages for property claims.
                750.35 Measure of damages in injury or death cases.
                750.36 Delegations of adjudicating authority.
                750.37 Advance payments.
                750.38 Final disposition.
                750.39 Appeal.
                750.40 Cross-servicing.
                750.41 Payments related to certain medical or legal malpractice
                claims.
                750.42 Attorney fees.
                Subpart D--Claims Under the Foreign Claims Act (FCA)
                750.43 Scope of subpart D.
                750.44 Statutory authority.
                750.45 Scope of liability.
                750.46 Statute of limitations.
                750.47 Filing a claim.
                750.48 The administrative claim.
                750.49 Damages.
                750.50 Foreign Claims Commissions.
                750.51 Processing claims.
                750.52 Action on forwarded claims.
                750.53 Reconsideration, appeal, and suit.
                750.54 Payment.
                Subpart E--Claims Under the Nonscope Claims Act (NSCA)
                750.55 Scope of subpart E.
                750.56 Statutory authority.
                750.57 Definitions.
                750.58 Claim procedures.
                750.59 Statute of limitations.
                750.60 Officials with authority to settle.
                750.61 Scope of liability.
                750.62 Claims not payable.
                750.63 Measure of damages.
                Subpart F--Claims Under the Personnel Claims Act (PCA)
                750.64 Scope of subpart F.
                750.65 Statutory authority.
                750.66 Adjudication authority.
                750.67 Proper claimants.
                750.68 Claims payable.
                750.69 Claims not payable.
                750.70 Statute of limitations.
                750.71 Filing a claim.
                750.72 Computation of payment.
                750.73 Notice of decision.
                750.74 Reconsideration.
                750.74 Carrier recovery claims.
                Subpart G--Admiralty Tort Claims
                750.76 Scope of subpart G.
                750.77 Statutory authority.
                750.78 Organization.
                750.79 Claims against the Navy.
                750.80 Affirmative claims.
                750.81 Salvage.
                Subpart H--Claims for Property Damage Under Article 139, Uniform Code
                of Military Justice
                750.82 Scope of subpart H.
                750.83 Statutory authority.
                750.84 Claims not cognizable.
                750.85 Limitation on claims.
                750.86 Complaint by the injured party and investigation.
                750.87 Action where offenders are members of one command.
                750.88 Action where offenders are members of different commands.
                750.89 Reconsideration and appeal.
                Subpart I--Claims Involving Non-Appropriated Fund (NAFI) Activities and
                Their Employees
                750.90 Scope of subpart I.
                750.91 Statutory authority.
                750.92 Definitions.
                [[Page 51376]]
                750.93 Participation in insurance programs.
                750.94 Responsibility.
                750.95 Negotiation.
                750.96 Payment.
                750.97 Denial.
                750.98 Claims by employees.
                Subpart J--Affirmative Claims Regulations (Property Damage Claims)
                750.99 Scope of subpart J.
                750.100 Statutory authority.
                750.101 Claims that may be collected.
                750.102 Assertion of claims and collection procedures.
                750.103 Waiver, compromise, and referral of claims.
                Subpart K--Affirmative Claims Regulations (Medical Care Recovery Act
                and Claims Asserted Pursuant to the Third Party Payers Act)
                750.104 Scope of subpart K.
                750.105 Statutory authority.
                750.106 Responsibility.
                750.107 Claims asserted.
                750.108 Assertion of claims.
                 Authority: 5 U.S.C. 301; 5 U.S.C. 552; 10 U.S.C. 939, 5013,
                5148, and 7621-7623; 3 CFR, 1984 Comp., p. 201; Article 139, UCMJ;
                E.O. 11476; 3 CFR, 1969 Comp., p. 132.
                Subpart A--General Provisions for Claims
                Sec. 750.1 Scope of subpart A.
                 (a) General. (1) The Judge Advocate General of the Navy is
                responsible for the administration and supervision of the resolution of
                claims arising under the Federal Tort Claims Act (subpart B of this
                part), the Military Claims Act (subpart C of this part), the Foreign
                Claims Act and the International Agreements Claims Act pertaining to
                cost sharing of claims pursuant to international agreements (subpart D
                of this part), the Nonscope Claims Act (subpart E of this part), the
                Personnel Claims Act (subpart F of this part), Admiralty tort claims
                (subpart G of this part), the Federal Claims Collection Act (subpart J
                of this part), and the Medical Care Recovery Act and Claims asserted
                pursuant to the Third Party Payers Act (subpart K of this part).
                 (2) The Director, Claims and Tort Litigation is the manager of the
                Navy claims system established to evaluate, adjudicate, and provide
                litigation support for claims arising under the acts listed above
                (except admiralty claims) and is responsible to the Judge Advocate
                General for the management of that system. The claims system consists
                of the Claims and Tort Litigation Division of the Office of the Judge
                Advocate General (Code 15) and three subordinate units: The Tort Claims
                Unit (TCU), Norfolk, Virginia; the Personnel Claims Unit (PCU),
                Norfolk, Virginia; and three Medical Care Recovery Units (MCRUs) in
                Norfolk, Virginia; San Diego, California; and Pensacola, Florida.
                 (3) The Director, Admiralty and Maritime Law is the manager of the
                Navy claims system established to evaluate, adjudicate, and provide
                litigation support for claims arising in admiralty.
                 (b) This subpart delineates general investigative and claims-
                processing requirements to be followed in the handling of all incidents
                and claims within the provisions of this part. Where the general
                provisions of this subpart conflict with the specific provisions of any
                subsequent section, the specific provisions govern.
                 (c) Additional guidance on the processing and adjudication of
                claims can be found in JAG Instruction 5800.7 series (JAGMAN) and
                JAGINST 5890.1 series [which may be retrieved at the official website
                of the United States Navy Judge Advocate General's Corps at https://www.jag.navy.mil].
                Sec. 750.2 Statutory authority.
                 (a) Authority applicable to entire part: 5 U.S.C. 301, 5 U.S.C.
                552, 10 U.S.C. 5013, and 5148.
                 (b) History: 57 FR 4722, Feb. 7, 1992; 72 FR 53417, Sept. 19, 2007,
                as confirmed at 73 FR 60948, Oct. 15, 2008.
                Sec. 750.3 Claims: In general.
                 (a) Claims against the United States. Claims against the United
                States shall receive prompt and professional disposition. Every effort
                will be made to ensure an investigation is thoroughly and accurately
                completed, the claimant's allegations evaluated promptly, and where
                liability is established, payment issued as quickly as possible to
                prevent further harm to a meritorious claimant. Similarly, claims not
                payable will be processed promptly and the claimant advised of the
                reasons for the denial.
                 (b) Claims in favor of the United States. Potential claims in favor
                of the United States will be critically evaluated and, where
                appropriate, promptly asserted and aggressively pursued.
                 (c) Assistance to claimants. Claimants or potential claimants who
                inquire about their rights or the procedures to be followed in the
                resolution of their claims should be referred to the responsible claims
                unit. The unit will provide claims forms, advise where the forms should
                be filed, and inform the requester of the type of substantiating
                information required. Claims unit employees may provide advice on the
                claims process but shall not provide advice or opinions about the
                merits or the wisdom of filing a particular claim.
                Sec. 750.4 Claims: Proper claimants.
                 (a) Damage to property cases. A claim for damage to, or destruction
                or loss of, property shall be presented by the owner of the property or
                a duly authorized agent or legal representative. ``Owner'' includes a
                bailee, lessee, or mortgagor, but does not include a mortgagee,
                conditional vendor, or other person having title for security purposes
                only.
                 (b) Personal injury and death cases. A claim for personal injury
                shall be presented by the person injured or a duly authorized agent or
                legal representative, or, in the case of death, by the properly
                appointed legal representative of the deceased's estate or survivor
                where authorized by State law.
                 (c) Subrogation. A subrogor and a subrogee may file claims jointly
                or separately. A medical expense subrogee may pursue a claim when
                permitted under applicable state law.
                 (d) Limitation on transfers and assignment. All transfers and
                assignments made of any claim upon the United States, and all powers of
                attorney, orders, or other authorities for receiving payment of any
                such claim, are absolutely null and void unless they are made after the
                allowance of such a claim, the ascertainment of the amount due, and the
                issuing of a warrant for the payment thereof. 31 U.S.C. 203. This
                statutory provision does not apply to the assignment of a claim by
                operation of law, as in the case of a receiver or trustee in bankruptcy
                appointed for an individual, firm, or corporation, or the case of an
                administrator or executor of the estate of a person deceased, or an
                insurer subrogated to the rights of the insured.
                Sec. 750.5 Claims: Presentment.
                 (a) Written demand. A claim shall be submitted by presenting a
                written statement with the amount of the claim expressed in a sum
                certain, and, as far as possible, describing the detailed facts and
                circumstances surrounding the incident from which the claim arose. The
                Claim for Damage or Injury, Standard Form 95, shall be used whenever
                practical for claims based in tort. Personnel Claims Act claims for
                loss and damage that occurred during a DoD contracted move (Household
                goods) shall be submitted electronically utilizing the USTRANSCOM
                approved claims management system. All other Personnel Claims Act
                claims shall be submitted in writing on the DD Form 1842 and 1844 [both
                forms are available at the website of the United States Navy
                [[Page 51377]]
                Judge Advocate General's Corps at https://www.jag.navy.mil/organization/code_15.htm]. The claim and all other papers requiring the
                signature of the claimant shall be signed by the proper claimant
                personally or by a duly authorized agent. If signed by an agent or
                legal representative, the claim shall indicate the title or capacity of
                the person signing and be accompanied by evidence of appointment. When
                more than one person has a claim arising from the same incident, each
                person shall file a claim separately.
                 (b) Submission of claims. Claims should be submitted to the
                appropriate claims unit (see subparts for addresses), or to the Office
                of the Judge Advocate General, Claims and Tort Litigation Division,
                1322 Patterson Avenue SE, Suite 3000, Washington Navy Yard, Washington,
                DC 20374-5066.
                Sec. 750.6 Claims: Responsibility.
                 (a) Determining the sufficiency of the claim. Once received, each
                claim will be reviewed and a determination of its sufficiency made. A
                claim is deemed sufficient if it presents a written statement, signed
                by the claimant, stating the amount of the claim in a sum certain and
                describing the facts and circumstances in enough detail to allow the
                Navy to identify the incident so that an investigation can be
                commenced. If the claim is not sufficient as received, it shall be
                immediately returned to the party who submitted it along with an
                explanation of the insufficiency. This does not constitute denial of
                the claim. The claim shall not be considered ``presented'' until it is
                received in proper form.
                 (b) Adjudicating the claim. The responsible unit shall evaluate
                every claim promptly and, where liability is established or payment
                deemed appropriate, attempt to settle claims for amounts within its
                adjudicating authority. Negotiation at settlement figures above a
                unit's payment limits may be attempted if the claimant is informed that
                the final decision on the claim will be made at a higher level.
                Sec. 750.7 Claims: Settlement and release.
                 (a) Fully and partially approved claims. When a claim is approved
                for payment in the amount claimed, a settlement agreement may not be
                necessary. When a claim based in tort is approved for payment in a
                lesser amount than that claimed, the claimant must indicate in writing
                a willingness to accept the offered amount in full settlement and final
                satisfaction of the claim. No payment will be made until a signed
                settlement agreement has been received. PCA claims do not require a
                settlement agreement.
                 (b) Release. (1) Acceptance by the claimant of an award or
                settlement made by the Secretary of the Navy or designees, or the
                Attorney General or designees, is final upon acceptance by the
                claimant. Acceptance is a complete release by claimant of any claim
                against the United States by reason of the same subject manner.
                Claimant's acceptance of an advance payment does not have the same
                effect.
                 (2) In the case of claims based in tort, the claimant's acceptance
                of an award or settlement made under the provisions governing the
                administrative settlement of Federal tort claims or the civil action
                provisions of 28 U.S.C. 1346(b) also constitutes a complete release of
                any claim against any employee of the Government whose act or omission
                gave rise to the claim.
                Sec. 750.8 Claims: Payment.
                 Claims approved for payment shall be expeditiously forwarded to the
                appropriate payment authority for payment.
                Sec. 750.9 Claims: Denial.
                 The final denial of any claim within this chapter shall be in
                writing and sent to the claimant, his attorney, or legal
                representative. The denial notification shall include a statement
                notifying the claimant of the right to appeal or request
                reconsideration of the decision.
                Sec. 750.10 Claims: Single service responsibility.
                 (a) DoD Instruction (DoDI) 5515.08 (series), ``Assignment of Claims
                Responsibility'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/551508_2016.pdf) assigns ``single-service
                claims responsibility'' to individual military departments for
                processing claims in specified foreign countries. Claims arising in
                unassigned countries will be processed and adjudicated by the Service
                of the service member whose actions resulted in the claim.
                 (b) U.S. forces afloat cases under $2,500.00. Notwithstanding the
                single service assignments above, DON may settle claims under $2,500.00
                caused by personnel not acting within the scope of employment and
                arising in foreign ports visited by U.S. forces afloat and may, subject
                to the concurrence of the authorities of the receiving state concerned,
                process such claims.
                Subpart B--Claims Under the Federal Tort Claims Act (FTCA)
                Sec. 750.11 Scope of subpart B.
                 This subpart provides information regarding the administrative
                processing and consideration of claims against the United States under
                the FTCA. The FTCA is a limited waiver of sovereign immunity. Under the
                FTCA, an individual can seek money damages for personal injury, death,
                or property damage caused by the negligent or wrongful act or omission
                of a Federal employee acting within the scope of employment. The FTCA
                also provides for compensation for injuries caused by certain
                intentional, wrongful conduct. The liability of the United States is
                determined in accordance with the law of the State where the act or
                omission occurred.
                Sec. 750.12 Statutory authority.
                 The statutory provisions of the FTCA are at 28 U.S.C. 1346(b),
                2671-2672, and 2674-2680. The Attorney General of the United States has
                issued regulations on administrative claims filed under the FTCA at 28
                CFR part 14. If the provisions of this section and the Attorney
                General's regulations conflict, the Attorney General's regulations
                prevail.
                Sec. 750.13 Exclusiveness of remedy.
                 (a) The Federal Employees Liability Reform and Tort Compensation
                Act of 1988, Public Law 100-694 (amending 28 U.S.C. 2679(b) and
                2679(d)), provides that the exclusive remedy for damage or loss of
                property, or personal injury or death arising from the negligent or
                wrongful acts or omissions of all employees of the Government acting
                within the scope of their employment will be against the United States.
                This immunity from personal liability does not extend to allegations of
                constitutional torts nor to allegations of violations of statutes
                specifically authorizing suits against individuals.
                 (b) Other statutory provisions create immunity from personal
                liability for specific categories of Federal employees whose conduct
                within the scope of their employment gives rise to claims against the
                Government. Department of Defense (DoD) health care providers are
                specifically protected by 10 U.S.C. 1089, the Gonzalez Act. DoD
                attorneys are specifically protected by 10 U.S.C. 1054.
                Sec. 750.14 Definitions.
                 (a) Negligent conduct. Generally, negligence is the failure to
                exercise that degree of care, skill, or diligence a reasonable person
                would exercise under similar circumstances. Negligent
                [[Page 51378]]
                conduct can result from either an act or a failure to act. The law of
                the place where the conduct occurred will determine whether a cause of
                action lies against the Government.
                 (b) Intentional torts. Although any employee who commits an
                intentional tort is normally considered to be acting outside the scope
                of employment, the FTCA does allow claimants to seek compensation for
                injuries arising out of the intentional torts of assault, battery,
                false imprisonment, false arrest, abuse of process, and malicious
                prosecution, if committed by a Federal investigative or law enforcement
                officer. An ``investigative or law enforcement officer'' is any officer
                of the United States empowered by law to execute searches, to seize
                evidence, or to make arrests for violations of Federal law.
                 (c) Government employees. (1) ``Employee of the Government,''
                defined at 28 U.S.C. 2671, includes officers or employees of any
                Federal agency, members of the U.S. military or naval forces, and
                persons acting on behalf of a Federal agency in an official capacity.
                 (2) ``Government contractors'' (also referred to as independent
                contractors) are those individuals or businesses who enter into
                contracts with the United States to provide goods or services. Because
                the definition of ``Federal agency,'' found at 28 U.S.C. 2671,
                specifically excludes ``any contractor with the United States,'' the
                United States is generally not liable for the negligence of Government
                contractors. There are, however, three limited exceptions to the
                general rule, under which a cause of action against the United States
                has been found to exist in some jurisdictions.
                 They are:
                 (i) Where the thing or service contracted for is deemed to be an
                ``inherently dangerous activity'';
                 (ii) Where a nondelegable duty in the employer has been created by
                law; or
                 (iii) Where the employer retains control over certain aspects of
                the contract and fails to discharge that control in a reasonable
                manner.
                 (3) Employees of nonappropriated-fund activities. Nonappropriated-
                fund (NAF) activities are entities established and operated for the
                benefit of military members and their dependents, and have been
                judicially determined to be ``arms'' of the Federal government. These
                entities operate from self-generated funds, rather than from funds
                appropriated by Congress. Examples include Navy and Marine Corps
                Exchanges, officer or enlisted clubs, and recreational services
                activities. A claim arising out of the act or omission of an employee
                of a nonappropriated-fund activity not located in a foreign country
                acting within the scope of employment is an act or omission committed
                by a Federal employee and will be handled in accordance with the FTCA.
                 (d) Scope of employment. ``Scope of employment'' is defined by the
                law of respondeat superior (master and servant) of the place where the
                act or omission occurred. Although 28 U.S.C. 2671 states that acting
                within the scope of employment means acting in the line of duty, the
                converse is not always true. For administrative purposes, a Government
                employee may be found ``in the line of duty,'' yet not meet the
                criteria for a finding of ``within the scope of employment'' under the
                law of the place where the act or omission occurred.
                Sec. 750.15 Scope of liability.
                 (a) Territorial limitations. The FTCA does not apply to any claim
                arising in a foreign country.
                 (b) Exclusions from liability. Statutes and case law have
                established categories of exclusions from FTCA liability.
                 (1) Statutory exclusions. Title 28 U.S.C. 2680 lists claims not
                cognizable under the FTCA. They include:
                 (i) Claims based on the exercise or performance of, or the failure
                to exercise or perform, a discretionary Government function;
                 (ii) Admiralty claims under 46 U.S.C. 741-752 or 781-790. Claims
                under the Death on the High Seas Act (46 U.S.C. 761), however, are
                cognizable under the FTCA. All admiralty claims will be referred to the
                Judge Advocate General for adjudication. Admiralty claims against the
                Navy shall be processed under subpart F of this part;
                 (iii) Claims arising from certain intentional torts enumerated in
                28 U.S.C. 2680(h); and
                 (iv) Claims arising from the combat activities of the military or
                naval forces, or the Coast Guard, during time of war.
                 (2) Additional claims not payable. Although not expressly
                statutorily excepted, the following types of claims will not be paid
                under the FTCA:
                 (i) A claim for personal injury or death of a member of the armed
                forces of the United States incurred incident to military service or
                duty;
                 (ii) Any claim by military personnel or civilian employees of the
                Navy, paid from appropriated funds, for personal property damage
                occurring incident to service or Federal employment, cognizable under
                31 U.S.C. 3721 and the applicable Personnel Claims Regulations (subpart
                E of this part);
                 (iii) Any claim by employees of nonappropriated-fund activities for
                personal property damage occurring incident to Federal employment.
                These claims will be processed as indicated under subpart H of this
                part;
                 (iv) Any claim for personal injury or death covered by the Federal
                Employees' Compensation Act (5 U.S.C. 8116c);
                 (v) Any claim for personal injury or death covered by the Longshore
                and Harbor Workers' Compensation Act (33 U.S.C. 905 and 5 U.S.C. 8171);
                 (vi) That portion of any claim for personal injury or property
                damage caused by the negligence or fault of a Government contractor to
                the extent such contractor may have assumed liability under the terms
                of the contract;
                 (vii) Any claim against the DON by another Federal agency. Property
                belonging to the Government is not owned by any one department of the
                Government. The Government does not reimburse itself for the loss of
                its own property except where specifically provided for by law; and
                 (viii) Any claim for damage to a vehicle rented pursuant to travel
                orders.
                Sec. 750.16 Statute of limitations.
                 An administrative claim against the United States under the FTCA
                must be presented in writing within 2 years after the claim accrues.
                Federal law determines the date of accrual. A claim accrues when the
                claimant discovers or reasonably should have discovered the existence
                of the act giving rise to the claim. In computing the statutory time
                period, the day of the incident is excluded and the day the claim was
                presented included.
                Sec. 750.17 Delegations of adjudicating authority.
                 (a) Settlement authority. (1) The Judge Advocate General; the
                Deputy Judge Advocate General; the Assistant Judge Advocate General
                (Civil Law); the Director, Claims and Tort Litigation; and the Head,
                Tort Claims Branch, Claims and Tort Litigation, have delegated
                authority to settle FTCA claims up to $500,000. Any settlement,
                including aggregate settlements (i.e., all claims arising from a single
                incident) in excess of OJAG's settlement authority ($500,000) require
                approval and written authorization from the Department of Justice--
                Torts Branch.
                 (2) Individuals with settlement authority under paragraph (a)(1) of
                this section may delegate all or part of their settlement authority.
                Such delegation shall be in writing.
                 (b) Appeal authority. Adjudicating authorities have the same
                authority as delegated on paragraph (a) of this section to act on
                appeals.
                [[Page 51379]]
                Sec. 750.18 The administrative claim.
                 (a) Proper claimant. See Sec. 750.4 of this part.
                 (b) Claim presented by agent or legal representative. A claim filed
                by an agent or legal representative will be filed in the name of the
                claimant; be signed by the agent or legal representative; show the
                title or legal capacity of the person signing; and be accompanied by
                evidence of the individual's authority to file a claim on behalf of the
                claimant.
                 (c) Proper claim. A claim is a notice in writing to the appropriate
                Federal agency of an incident giving rise to Government liability under
                the FTCA. It must include a demand for money damages in a definite sum
                for property damage, personal injury, or death alleged to have occurred
                by reason of the incident. The Attorney General's regulations specify
                that the claim be filed on a Standard Form 95 or other written
                notification of the incident. If a letter or other written notification
                is used, it is essential that it set forth the same basic information
                required by Standard Form 95. Failure to do so may result in a
                determination that the administrative claim is incomplete.
                 (d) Presentment. A claim is deemed presented when received by the
                Navy in proper form. A claim against another agency, mistakenly
                addressed to or filed with the Navy shall be transferred to the
                appropriate agency, if ascertainable, or returned to the claimant. A
                claimant presenting identical claims with more than one agency should
                identify every agency to which the claim is submitted on every claim
                form presented. In such cases, a lead agency will be designated.
                Sec. 750.19 Information and supporting documents.
                 (a) Proper documentation. Depending on the type of claim, claimants
                may be required to submit information, as follows:
                 (1) Death. (i) An authenticated death certificate or other
                competent evidence showing cause of death, date of death, and age of
                the decedent;
                 (ii) Decedent's employment or occupation at time of death,
                including monthly or yearly earnings and the duration of last
                employment;
                 (iii) Full names, addresses, birth dates, relationship, and marital
                status of the decedent's survivors, including identification of
                survivors dependent for support upon decedent at the time of death;
                 (iv) Degree of support provided by decedent to each survivor at
                time of death;
                 (v) Decedent's general physical and mental condition before death;
                 (vi) Itemized bills for medical and burial expenses; and
                 (vii) If damages for pain and suffering are claimed, a physician's
                detailed statement specifying the injuries suffered, duration of pain
                and suffering, any drugs administered for pain, and the decedent's
                physical condition during the interval between injury and death.
                 (2) Personal injury. (i) A written report by attending physician or
                dentist on the nature and extent of the injury, nature and extent of
                treatment, any degree of temporary or permanent disability, the
                prognosis, period of hospitalization, and any diminished earning
                capacity. In addition, the claimant may be required to submit to a
                physical or mental examination by a physician employed by any Federal
                agency. Upon written request, a copy of the report of the examining
                physician shall be provided;
                 (ii) Itemized bills for medical, dental, and hospital expenses
                incurred, or itemized receipts of payments of such expenses;
                 (iii) A statement of expected expenses for future treatment;
                 (iv) If a claim is made for lost wages, a written statement from
                the employer itemizing actual time and wages lost; and
                 (v) If a claim is made for lost self-employed income, documentary
                evidence showing the amount of earnings actually lost.
                 (3) Property damage. (i) Proof of ownership;
                 (ii) A detailed statement of the amount claimed for each item of
                property;
                 (iii) An itemized receipt of payment for necessary repairs or
                itemized written estimates of the cost of repairs; and
                 (iv) A statement listing date of purchase, purchase price, and
                salvage value where repair is not economical.
                 (b) Failure to submit necessary documentation. If claimant fails to
                provide sufficient supporting documentation, claimant should be
                notified of the deficiency. If after a reasonable period of time the
                information is still not provided, the appropriate adjudicating
                authority should deny the claim.
                Sec. 750.20 Damages.
                 (a) Generally. The measure of damages is determined by the law of
                the place where the act or omission occurred. When there is a conflict
                between local and applicable Federal law, the latter governs.
                 (b) Limitations on liability. The United States is not liable for
                interest prior to judgment or for punitive damages. In a death case, if
                the place where the act or omission complained of occurred provides for
                only punitive damages, the United States will be liable in lieu
                thereof, for actual or compensatory damages.
                 (c) Setoff. The United States is not obligated to pay twice for the
                same injury. Claimants under the FTCA may have received Government
                benefits or services as the result of the alleged tort. The cost of
                these services or benefits shall be considered in arriving at any award
                of damages. For example, the cost of medical or hospital services
                furnished at Government expense, including TRICARE payments, shall be
                considered. Additionally, benefits or services received under the
                Veterans Act (38 U.S.C. 101-800) must be considered.
                 (d) Suit. Any damage award in a suit brought under the FTCA is
                limited to the amount claimed administratively unless based on newly
                discovered evidence. Plaintiff must prove the increased demand is based
                on facts not reasonably discoverable at the time of the presentment of
                the claim or on intervening facts relating to the amount of the claim.
                Sec. 750.21 Amendment of the claim.
                 Proper claim may be amended at any time prior to settlement,
                denial, or the filing of suit. An amendment must be submitted in
                writing and must be signed by the claimant or duly authorized agent or
                legal representative. No finally denied claim for which reconsideration
                has not been requested under Sec. 750.24 may be amended. Upon timely
                filing of an amendment to a pending claim, the DON shall have 6 months
                to make a final disposition of the claim as amended, and the claimant's
                option to file suit under 28 U.S.C. 2675(a) shall not accrue until 6
                months after the presentment of an amendment.
                Sec. 750.22 Settlement and payment.
                 (a) Settlement agreement. A settlement agreement, signed by the
                claimant, must be received prior to payment in every case in which the
                claim is either:
                 (1) Settled for less than the full amount claimed, or
                 (2) The claim was not presented on a Standard Form 95.
                 (b) Contents. Every settlement agreement must contain language
                indicating payment is in full and final settlement of the applicable
                claim. Each settlement agreement shall contain language indicating
                acceptance of the settlement amount by the claimant, or his agent or
                legal representative, shall be final and conclusive on the claimant, or
                [[Page 51380]]
                his agent or legal representative, and any other person on whose behalf
                or for whose benefit the claim has been presented, and shall constitute
                a complete release of any claim against the United States and against
                any employee of the Government whose conduct gave rise to the claim, by
                reason of the same subject matter. All settlement agreements shall
                contain a recitation of the applicable statutory limitation of attorney
                fees.
                 (c) Payment of the claim. Pursuant to 28 U.S.C. 2672 and in
                accordance with 28 CFR 14.6(a), the Secretary of the Navy or designee,
                acting on behalf of the United States may compromise or settle any
                claim filed against the Navy under the FTCA, provided any award,
                compromise, or settlement by the Navy in excess of $500,000.00 may be
                effected only with the prior written approval of the Attorney General
                or designee.
                Sec. 750.23 Denial of the claim.
                 Final denial of an administrative claim shall be in writing and
                shall be sent to the claimant, his duly authorized agent or legal
                representative by certified or registered mail, with return receipt
                requested. The notification of final denial may include the reasons for
                the denial. The notification shall include a statement informing the
                claimant of his right to file suit in the appropriate Federal district
                court not later than 6 months after the date of the mailing of the
                notification.
                Sec. 750.24 Reconsideration.
                 (a) Request. Prior to the commencement of suit and prior to the
                expiration of the 6-month period for filing suit, a claimant or his
                duly authorized agent or legal representative may present a request for
                reconsideration to the authority who denied the claim. The request
                shall be in writing and shall state the reasons for the requested
                reconsideration. A request for reconsideration is presented on the date
                it is received by the DON.
                 (b) Proper basis. A request for reconsideration shall set forth
                claimant's reasons for the request and shall include any supplemental
                supporting evidence or information. Any writing communicating a desire
                for reconsideration that reasonably appears to have been presented
                solely for the purpose of extending the statutory period for filing
                suit, shall not be treated as a request for reconsideration. Claimant
                or claimant's authorized representative shall be notified promptly that
                the writing is not considered a proper request for reconsideration.
                 (c) Effect of presentment of request. The presentment of a proper
                request for reconsideration starts a new 6-month period for the DON to
                act on the request to reconsider. The claimant may not file suit until
                the expiration of the new 6-month period, or until after the date of
                mailing of the final denial of the request. Final denial of a request
                for reconsideration shall be accomplished in the manner prescribed in
                Sec. 750.23.
                Sec. 750.25 Suits Under the Federal Tort Claims Act.
                 (a) Time limit for filing suit. A civil action is barred unless
                suit is filed against the United States not later than 6 months after
                the date of mailing of notice of final denial of the claim. The failure
                of DON to make final disposition of a claim within 6 months after it is
                presented shall, at the option of the claimant any time thereafter, be
                deemed a final denial of the claim.
                 (b) Venue. Venue is proper only in the judicial district where the
                plaintiff resides or where the act or omission complained of occurred.
                 (c) Jury trial. There is no right to trial by jury in suits brought
                under the FTCA.
                 (d) Settlement. The Attorney General of the United States, or
                designee, may arbitrate, compromise, or settle any action filed under
                the FTCA.
                Sec. 750.26 Attorney fees.
                 Attorney fees are limited to 20 percent of any compromise or
                settlement of an administrative claim, and are limited to 25 percent of
                any judgment rendered in favor of a plaintiff, or of any settlement
                accomplished after suit is filed. These amounts are to be paid out of
                the amount awarded and not in addition to the award.
                Subpart C--Claims Under the Military Claims Act (MCA)
                Sec. 750.27 Scope of subpart C.
                 (a) General. This section prescribes the substantive bases and
                special procedural requirements for the settlement of claims against
                the United States for death, personal injury, or damage, loss, or
                destruction of property under the MCA:
                 (1) Caused by military personnel or civilian employees of the DON
                (hereinafter DON personnel). For the purposes of this section, DON
                personnel include all military personnel of the Navy and Marine Corps,
                volunteer workers, and others serving as employees of the DON with or
                without compensation, and members of the National Oceanic and
                Atmospheric Administration or of the Public Health Service when serving
                with the DON. DON personnel does not include DON contractors or their
                employees; or
                 (2) Incident to noncombat activities of the DON. Claims for
                personal injury or death of a member of the Armed Forces or Coast
                Guard, or civilian officer or employee of the U.S. Government whose
                injury or death is incident to service, however, are not payable.
                 (b) Territorial limitation. There is no geographical limitation on
                the application of the MCA, but if a claim arising in a foreign country
                is cognizable under the Foreign Claims Act, the claim shall be
                processed under that statute.
                 (c) Suit. The MCA authorizes the administrative settlement and
                payment of certain claims. The United States has not consented to be
                sued.
                Sec. 750.28 Statutory authority.
                 10 U.S.C. 2733, as amended, commonly referred to as the MCA.
                Sec. 750.29 Claims payable.
                 (a) General. Unless otherwise prescribed, a claim for personal
                injury, death, or damage or loss of real or personal property is
                payable under this provision when:
                 (1) Caused by an act or omission determined to be negligent,
                wrongful, or otherwise involving fault of DON personnel acting within
                the scope of their employment; or
                 (2) Incident to noncombat activities of the DON. A claim may be
                settled under this provision if it arises from authorized activities
                essentially military in nature, having little parallel in civilian
                pursuits, and in which the U.S. Government has historically assumed a
                broad liability, even if not shown to have been caused by any
                particular act or omission by DON personnel while acting within the
                scope of their employment. Activities incident to combat, whether or
                not in time of war, and use of DON personnel during civil disturbances
                are excluded.
                 (b) Specific claims payable. Claims payable by the DON under the
                MCA shall include, but not be limited to:
                 (1) Registered or insured mail. Claims for damage to, loss, or
                destruction, even if by criminal acts, of registered or insured mail
                while in the possession of DON authorities are payable under the MCA.
                This provision is an exception to the general requirement that
                compensable damage, loss, or destruction of personal property be caused
                by DON personnel while acting within the scope of their employment or
                otherwise incident to noncombat activities of the DON. The maximum
                award to a claimant under this section is limited to that to which the
                claimant would be entitled from the Postal
                [[Page 51381]]
                Service under the registry or insurance fee paid. The award shall not
                exceed the cost of the item to the claimant regardless of the fees
                paid. Claimant may be reimbursed for the postage and registry or
                insurance fees;
                 (2) Property bailed to the DON. Claims for damage to or loss of
                personal property bailed to the DON under an express or implied
                agreement are payable under the MCA, even though legally enforceable
                against the U.S. Government as contract claims, unless by express
                agreement the bailor has assumed the risk of damage, loss, or
                destruction. Claims filed under this paragraph may, if in the best
                interest of the U.S. Government, be referred to and processed by the
                Office of the General Counsel, DON, as contract claims;
                 (3) Real property. Claims for damage to real property incident to
                the use and occupancy by the DON, whether under an express or implied
                lease or otherwise, are payable under the MCA even though legally
                enforceable against the DON as contract claims. Claims filed under this
                paragraph may, if in the best interest of the U.S. Government, be
                referred to and processed by the Office of the General Counsel, DON, as
                contract claims;
                 (4) Property of U.S. military personnel. Claims of U.S. military
                personnel for property lost, damaged, or destroyed under conditions in
                Sec. 750.29(a) (1) and (2), occurring incident to service, not payable
                under the Military Personnel and Civilian Employees' Claims Act, are
                payable under the MCA;
                 (5) Health care and Legal Assistance Providers. Claims arising from
                the personal liability of DON health care and legal assistance
                personnel for costs, settlements, or judgments for negligent acts or
                omissions while acting within the scope of assigned duties or
                employment are payable under the MCA. See Sec. 750.41.
                Sec. 750.30 Claims not payable.
                 (a) Any claim for damage, loss, destruction, injury, or death which
                was proximately caused, in whole or in part, by any negligence or
                wrongful act on the part of the claimant, or his agent or employee,
                unless the law of the place where the act or omission complained of
                occurred would permit recovery from a private individual under like
                circumstances, and then only to the extent permitted by the law.
                 (b) Any claim resulting from action by the enemy or resulting
                directly or indirectly from any act by armed forces engaged in combat.
                 (c) Any claim for reimbursement of medical, hospital, or burial
                expenses to the extent already paid by the U.S. Government.
                 (d) Any claim cognizable under:
                 (1) Military Personnel and Civilian Employees' Claims Act, as
                amended. 31 U.S.C. 3721.
                 (2) Foreign Claims Act. 10 U.S.C. 2734.
                 (3) 10 U.S.C. 7622, relating to admiralty claims. See subpart G of
                this part.
                 (4) Federal Tort Claims Act. 28 U.S.C. 2671, 2672, and 2674-2680.
                 (5) International Agreements Claims Act. 10 U.S.C. 2734a and 2734b.
                 (6) Federal Employees' Compensation Act. 5 U.S.C. 8101-8150.
                 (7) Longshore and Harbor Workers' Compensation Act. 33 U.S.C. 901-
                950.
                 (e) Any claim for damage to or loss or destruction of real or
                personal property founded in written contract [except as provided in
                Sec. 750.29(b)(1) and (2)].
                 (f) Any claim for rent of real or personal property [except as
                provided in Sec. 750.29(b) (1) and (2)].
                 (g) Any claim involving infringement of patents.
                 (h) Any claim for damage, loss, or destruction of mail prior to
                delivery by the Postal Service to authorized DON personnel or occurring
                due to the fault of, or while in the hands of, bonded personnel.
                 (i) Any claim by a national, or corporation controlled by a
                national, of a country in armed conflict with the United States, or an
                ally of such country, unless the claimant is determined to be friendly
                to the United States.
                 (j) Any claim for personal injury or death of a member of the Armed
                Forces or civilian employee incident to his service.
                 (k) Any claim for damage to or loss of bailed property when bailor
                specifically assumes such risk.
                 (l) Any claim for taking private real property by a continuing
                trespass or by technical trespass such as overflights of aircraft.
                 (m) Any claim based solely on compassionate grounds.
                 (n) Any claim to which the exceptions in 28 U.S.C. 2680 apply.
                Sec. 750.31 Statute of limitations.
                 Claims against DON under the MCA must be presented in writing
                within 2 years after they accrue. In computing the 2 year period, the
                day the claim accrues is excluded and the day the claim is presented is
                included. If the incident occurs in time of war or armed conflict,
                however, or if war or armed conflict intervenes within 2 years after
                its occurrence, an MCA claim, on good cause shown, may be presented
                within 2 years after the war or armed conflict is terminated. For the
                purposes of the MCA, the date of termination of the war or armed
                conflict is the date established by concurrent resolution of Congress
                or by the President.
                Sec. 750.32 Filing the claim.
                 (a) Who may file. Under the MCA, specifically, the following are
                proper claimants:
                 (1) U.S. citizens and inhabitants;
                 (2) U.S. military personnel and civilian employees, except not for
                personal injury or death incident to service;
                 (3) Persons in foreign countries who are not inhabitants;
                 (4) States and their political subdivisions (including agencies);
                 (5) Prisoners of war for personal property, but not personal
                injury; and
                 (6) Subrogees, to the extent they paid the claim.
                 (b) Who may not file. (1) Inhabitants of foreign nations for loss
                or injury occurring in the country they inhabit; and
                 (2) U.S. Government agencies and departments.
                 (c) Where to file. The claim should be submitted by the claimant to
                the Office of the Judge Advocate General of the Navy, Claims and Tort
                Litigation (Code 15), 1322 Patterson Avenue SE, Suite 3000, Washington
                Navy Yard, DC 20374-5066, or to Tort Claims Unit Norfolk, 9620 Maryland
                Avenue, Ste. 205, Norfolk, VA 23434. Alternatively, the claim may be
                submitted to the commanding officer of the naval activity involved, if
                it is known, or to the commanding officer of any naval activity,
                preferably the one within which, or nearest to which, the incident
                occurred.
                 (d) Claim form. A claim is correct in form if it constitutes
                written notification of an incident, signed by the claimant or a duly
                authorized agent or legal representative, with a claim for money
                damages in a sum certain and sufficient information so as to allow an
                investigation to commence. A Standard Form 95 is preferred. A claim
                should be substantiated as described in Sec. 750.19 of this part in
                order to be paid.
                 (e) Amendment of claim. A proper claim may be amended by the
                claimant at any time prior to final denial or payment of the claim. An
                amendment shall be submitted in writing and signed by the claimant or a
                duly authorized agent or legal representative.
                Sec. 750.33 Applicable law.
                 (a) Claims arising within the United States or its territories,
                commonwealth, or possessions. The law of the place
                [[Page 51382]]
                where the act or omission occurred will be applied in determining
                liability and the effect of contributory or comparative negligence on
                claimant's right of recovery.
                 (b) Claims arising within foreign countries. (1) Where the claim is
                for personal injury, death, or damage to or loss or destruction of real
                or personal property caused by an act or omission determined to be
                negligent, wrongful, or otherwise involving fault of DON personnel
                acting within the scope of their employment, liability of the United
                States will be assessed under general principles of tort law common to
                the majority of American jurisdictions.
                 (2) Apply the law of the foreign country governing the legal effect
                of contributory or comparative negligence by the claimant to determine
                the relative merits of the claim. If there is no foreign law on
                contributory or comparative negligence, apply traditional rules of
                contributory negligence. Apply foreign rules and regulations on
                operation of motor vehicles (rules of the road) to the extent those
                rules are not specifically superseded or preempted by U.S. Armed Forces
                traffic regulations.
                 (c) Principles applicable to all MCA claims. (1) ``Scope of
                employment'' is determined in accordance with Federal law. Reported
                FTCA cases provide guidance on this determination;
                 (2) Claims for emotional distress will be considered only from the
                injured person or members of the injured person's immediate family.
                Claims from the injured person's immediate family will be considered
                only if such family member was within the ``zone of danger'' (i.e.,
                immediate vicinity of the incident) and the claimant substantiates the
                claim with proof of the physical manifestation(s) of the emotional
                distress; and
                 (3) Claims under the MCA do not include the principles of absolute
                (strict) liability and punitive damages.
                Sec. 750.34 Measure of damages for property claims.
                 (a) Where the property damage arises in the United States or its
                territories, commonwealth, or possessions, determine the measure of
                damages under the law of the place where the incident occurred.
                 (b) Where the property damage arises overseas, determine the
                measure of damages under general principles of American tort law,
                stated as follows:
                 (1) If the property has been or can be economically repaired, the
                measure of damages shall be the actual or estimated net cost of the
                repairs necessary to substantially restore the property to the
                condition that existed immediately prior to the incident. Damages shall
                not exceed the value of the property immediately prior to the incident
                less the value thereof immediately after the incident. To determine the
                actual or estimated net cost of repairs, the value of any salvaged
                parts or materials and the amount of any net appreciation in value
                effected through the repair shall be deducted from the actual or
                estimated gross cost of repairs. The amount of any net depreciation in
                the value of the property shall be added to such gross cost of repairs
                if such adjustments are sufficiently substantial in amount to warrant
                consideration. Estimates of the cost of repairs shall be based upon the
                lower or lowest of two or more competitive bids, or upon statements or
                estimates by one or more competent and disinterested persons,
                preferably reputable dealers or officials familiar with the type of
                property damaged, lost, or destroyed.
                 (2) If the property cannot be economically repaired, the measure of
                damages shall be the value of the property immediately prior to the
                incident less the value immediately after the incident. Estimates of
                value shall be made, if possible, by one or more competent and
                disinterested persons, preferably reputable dealers or officials
                familiar with the type of property damaged, lost, or destroyed.
                 (3) Loss of use of damaged property which is economically
                repairable may, if claimed, be included as an additional element of
                damage to the extent of the reasonable expense actually incurred for
                appropriate substitute property, for such period reasonably necessary
                for repairs, as long as idle property of the claimant was not employed
                as a substitute. When substitute property is not obtainable, other
                competent evidence such as rental value, if not speculative or remote,
                may be considered. When substitute property is reasonably available but
                not obtained and used by the claimant, loss of use is normally not
                payable.
                Sec. 750.35 Measure of damages in injury or death cases.
                 (a) Injury or death arising in the United States. When the injury
                or death arises within the United States or its territories,
                commonwealth, or possessions, determine the measure of damages under
                the law of the location where the injury arises.
                 (b) Injury or death arising in a foreign country. When the injury
                or death arises in a foreign country and is otherwise cognizable and
                meritorious under this provision, damages will be determined in
                accordance with general principles of American tort law. The following
                is provided as guidance.
                 (1) Measure of damages for overseas personal injury claims.
                Allowable compensation includes reasonable medical and hospital
                expenses necessarily incurred, compensation for lost earnings and
                services, diminution of earning capacity, anticipated medical expenses,
                physical disfigurement, and pain and suffering.
                 (2) Wrongful death claims arising in foreign countries.
                 (i) Allowable compensation includes that in paragraph (b)(1) of
                this section, burial expenses, loss of support and services, loss of
                companionship, comfort, society, protection, and consortium, and loss
                of training, guidance, education, and nurturing, as applicable.
                 (ii) The claim may be presented by or on behalf of the decedent's
                spouse, parent, child, or dependent relative. Claims may be
                consolidated for joint presentation by a representative of some or all
                of the beneficiaries or may be filed by a proper beneficiary
                individually.
                Sec. 750.36 Delegations of adjudicating authority.
                 (a) Settlement authority. (1) The Secretary of the Navy may settle
                or deny claims in any amount. The Secretary may pay the first
                $100,000.00 and report the excess to the Comptroller General for
                payment under 31 U.S.C. 1304.
                 (2) The Judge Advocate General has delegated authority to settle
                claims for $100,000.00 or less.
                 (3) The Deputy Judge Advocate General, the Assistant Judge Advocate
                General (Civil Law), the Director, Claims and Tort Litigation, and
                Head, Tort Claims Branch, Claims and Tort Litigation, have delegated
                authority to settle claims for $25,000.00 or less, and have denial
                authority in any amount.
                 (4) Individuals with settlement authority under paragraph (a)(3) of
                this section may delegate all or part of their settlement authority.
                Such delegation must be in writing.
                 (b) Appellate authority. Adjudicating authorities have the same
                authority as delegated in paragraph (a) of this section to act upon
                appeals. No appellate authority below the Secretary of the Navy may
                deny an appeal of a claim it had previously denied.
                Sec. 750.37 Advance payments.
                 (a) Scope. This paragraph applies exclusively to the payment of
                amounts not to exceed $100,000.00 under 10 U.S.C. 2736 in advance of
                submission of a claim.
                 (b) Statutory authority. Title 10 U.S.C. 2736 authorizes the
                Secretary of the
                [[Page 51383]]
                Navy or designee to pay an amount not in excess of $100,000.00 in
                advance of the submission of a claim to or for any person, or the legal
                representative of any person, who was injured or killed, or whose
                property was damaged or lost, as the result of an accident for which
                allowance of a claim is authorized by law. Payment under this law is
                limited to that which would be payable under the MCA (10 U.S.C. 2733).
                Payment of an amount under this law is not an admission by the United
                States of liability for the accident concerned. Any amount so paid
                shall be deducted from any amount that may be allowed under any other
                provision of law to the person or his legal representative for injury,
                death, damage, or loss attributable to the accident concerned.
                 (c) Officials with authority to make advance payments. (1) The
                Secretary of the Navy has authority to make advance payments up to
                $100,000.00.
                 (2) The Judge Advocate General has delegated authority to make
                advance payments up to $100,000.00.
                 (3) The Director, Claims and Tort Litigation and the Head, Tort
                Claims Branch, Claims and Tort Litigation have delegated authority to
                make advance payments up to $25,000.00.
                 (d) Conditions for advance payments. Prior to making an advance
                payment under 10 U.S.C. 2736, the adjudicating authority shall
                ascertain that:
                 (1) The injury, death, damage, or loss would be payable under the
                MCA;
                 (2) The payee, insofar as can be determined, would be a proper
                claimant, or is the spouse or next of kin of a proper claimant who is
                incapacitated;
                 (3) The provable damages are estimated to exceed the amount to be
                paid;
                 (4) There exists an immediate need of the person who suffered the
                injury, damage, or loss, or of his family, or of the family of a person
                who was killed, for food, clothing, shelter, medical, or burial
                expenses, or other necessities, and other resources for such expenses
                are not reasonably available;
                 (5) The prospective payee has signed a statement that it is
                understood that payment is not an admission by the Navy or the United
                States of liability for the accident concerned, and that the amount
                paid is not a gratuity but shall constitute an advance against and
                shall be deducted from any amount that may be allowed under any other
                provision of law to the person or his legal representative for injury,
                death, damage, or loss attributable to the accident concerned; and
                 (6) No payment under 10 U.S.C. 2736 may be made if the accident
                occurred in a foreign country in which the NATO Status of Forces
                Agreement (4 U.S.C. 1792, TIAS 2846) or other similar agreement is in
                effect and the injury, death, damage, or loss:
                 (i) Was caused by a member or employee of the DON acting within the
                scope of employment; or
                 (ii) Occurred ``incident to noncombat activities'' of the DON as
                defined in Sec. 750.29(a)(2).
                Sec. 750.38 Final disposition.
                 (a) Claimant to be notified. The adjudicating authority shall
                notify the claimant, in writing, of the action taken on the claim.
                 (b) Payment. Claims approved for payment require a settlement
                agreement, signed by the claimant, in every case in which the MCA claim
                is settled for less than the full amount claimed or the claim was not
                presented on an SF95. The payment voucher will be forwarded to such
                disbursing officer as may be designated by the Comptroller of the Navy
                for payment from appropriations designated for that purpose. If the
                Secretary of the Navy considers that an MCA claim in excess of
                $100,000.00 is meritorious and would otherwise be covered by 10 U.S.C.
                2733 and Sec. 750.27 of this part, he may make a partial payment of
                $100,000.00 and refer the excess to the Comptroller General for payment
                from appropriations provided therefore.
                 (c) Final denial. A final denial, in whole or in part, of any MCA
                claim shall be in writing and sent to the claimant, or his attorney or
                legal representative, by certified or registered mail, return receipt
                requested. The notification of denial may include a statement of the
                reason or reasons for denial and that the claimant may appeal. The
                notification shall also inform the claimant:
                 (1) The title of the appellate authority who will act on the appeal
                and that the appeal will be addressed to the adjudicating authority who
                last acted on the claim.
                 (2) No form is prescribed for the appeal, but the grounds for
                appeal should be set forth fully.
                 (3) The appeal must be submitted within 30 days of receipt by the
                claimant of notice of action on the claim.
                Sec. 750.39 Appeal.
                 (a) A claim which is disapproved in whole or in part may be
                appealed by the claimant at any time within 30 days after receipt of
                notification of disapproval. An appeal shall be in writing and state
                the grounds relied upon. An appeal is not an adversary proceeding and a
                hearing is not authorized; however, the claimant may obtain and submit
                any additional evidence or written argument for consideration by the
                appellate authority.
                 (b) Upon receipt, the adjudicating authority examines the appeal,
                determines whether the appeal complies with this regulation, and
                reviews the claims investigative file to ensure it is complete. The
                claim, with the complete investigative file and a memorandum of law,
                will be forwarded to the appellate authority for action. If the
                evidence in the file, including information submitted by the claimant
                with the appeal, indicates the appeal should be approved, the
                adjudicating authority may treat the appeal as a request for
                reconsideration.
                 (c) Processing of the appeal may be delayed pending further efforts
                by the adjudicating authority to settle the claim. Where the
                adjudicating authority does not reach a final agreement on an appealed
                claim, it shall send the entire claim file to the next higher
                settlement authority, who is the appellate authority for that claim.
                 (d) The appellate authority shall notify the claimant in writing of
                the determination on appeal; that such determination constitutes the
                final administrative action on the claim; and there is no right to sue
                under the MCA.
                Sec. 750.40 Cross-servicing.
                 (a) Single service claims responsibility. See Sec. 750.10 for
                information about single-service claims responsibility under DoDI
                5515.08 of 11 Nov 2006.
                 (b) Claims settlement procedures. Where a single service has been
                assigned a country or area claims responsibility, that service will
                settle claims cognizable under the MCA under the regulations of that
                service. The forwarding command shall afford any assistance necessary
                to the appropriate service in the investigation and adjudication of
                such claims.
                Sec. 750.41 Payments related to certain medical or legal malpractice
                claims.
                 (a) General. Requests for reimbursement/indemnification of costs,
                settlements, and judgments cognizable under 10 U.S.C. 1089(f) [for
                personal injury or death caused by any physician, dentist, nurse,
                pharmacist, paramedic, or other supporting personnel (including medical
                and dental technicians, nurse assistants, and therapists)] or 10 U.S.C.
                1054(f) [for damages for injury or loss of property caused by any
                attorney, paralegal, or other member of a legal staff] while acting as
                DON personnel will be paid if:
                [[Page 51384]]
                 (1) The alleged negligent or wrongful actions or omissions arose in
                connection with either providing health care functions or legal
                services and within the scope of employment; and
                 (2) Such personnel furnish prompt notification and delivery of all
                process served or received, and other documents, information, and
                assistance as requested; and cooperate in defending the action on the
                merits.
                 (b) Requests for indemnification. All requests for indemnification
                for personal liability of DON personnel for acts or omissions arising
                out of assigned duties shall be forwarded to the Judge Advocate General
                for action.
                Sec. 750.42 Attorney fees.
                 Attorney fees not in excess of 20 percent of any settlement may be
                allowed. Attorney fees so determined are to be paid out of the amount
                awarded and not in addition to the award. These fee limitations shall
                be incorporated in any settlement agreement secured from a claimant.
                Subpart D--Claims Under the Foreign Claims Act (FCA)
                Sec. 750.43 Scope of subpart D.
                 This section provides information regarding the administrative
                processing of claims against the United States under the Foreign Claims
                Act (FCA). Foreign claims are demands for payment against the United
                States presented by inhabitants of foreign countries for property
                damage, personal injury, or death occurring outside the United States
                caused either by the negligent or wrongful act or omission of military
                members or civilian employees of the U.S. Armed Forces or by the
                noncombat activities of these forces in foreign countries. The
                statutory purpose of the FCA is to ``promote and maintain friendly
                relations through the prompt settlement of meritorious claims'' in
                foreign countries.
                Sec. 750.44 Statutory authority.
                 (a) The statutory provisions of the Foreign Claims Act (FCA) are at
                10 U.S.C. 2734. The FCA authorizes filing, investigating, processing,
                and settling foreign claims under such regulations as the service
                Secretary shall prescribe.
                 (b) The regulations implementing the FCA are separate and distinct
                from the procedures governing implementation of the International
                Agreement Claims Act (IACA), 10 U.S.C. 2734a and 2734b.
                Sec. 750.45 Scope of liability.
                 (a) General. The Foreign Claims Act and its implementing
                regulations should be broadly construed to carry out the statutory
                purpose. The United States generally accepts responsibility for damage,
                injury, or death to local inhabitants caused by either the negligent or
                wrongful act or omission of military members or civilian employees of
                the U.S. Armed Forces or by the noncombat activities of our armed
                forces in foreign countries. Meritorious claims should be settled
                fairly and promptly, without regard to whether the acts giving rise to
                them are mistaken, negligent, intentional, or even criminal.
                 (b) Claims Payable. For a claim to be payable under the FCA, both
                the claimant and the incident giving rise to the claim must be covered
                by the statute (10 U.S.C. 2734).
                 (1) Covered claimants. The FCA applies only to inhabitants of
                foreign countries who are defined as persons, corporations, or other
                Government or business entities, whose usual place of abode or activity
                is in a foreign country. The claimant need not be an inhabitant of the
                particular country in which the claim arose. Examples of covered
                claimants include foreign nationals residing in a foreign country;
                foreign nationals visiting or traveling in a foreign country where they
                do not reside; U.S. citizens residing in a foreign country if they are
                inhabitants of a foreign country and are not there as U.S. Service
                members or civilian employees (or their sponsored dependents) or as
                U.S. civilian contractors performing work pursuant to an agreement with
                the U.S. Government; a corporation or other organization doing business
                in a foreign country on a permanent basis, even if organized under U.S.
                law, provided that the corporation or organization is not providing
                work pursuant to a contract with the U.S. Government; and foreign
                governments and their political subdivisions, including the equivalents
                of State, county, and city governments, unless excluded by waiver
                provisions of an international agreement.
                 (2) Covered incidents. Unless otherwise prescribed, a claim for
                personal injury, death, or damage to or loss of real or personal
                property may be paid under these regulations if the incident occurred
                outside the U.S. and was caused by either the negligent or wrongful act
                or omission of military members or civilian employees of the U.S. Armed
                Forces or caused by the non-combat activities of these forces.
                 (3) Scope of Employment. As a general rule, scope of employment of
                the service member or civilian employee that allegedly caused the loss
                is immaterial. If, however, a claim arises from the act of a U.S.
                employee who is an indigenous person (local hire), prisoner of war, or
                interned enemy alien, scope of employment is a prerequisite to United
                States responsibility. Claims arising from the operation of a U.S.
                Armed Forces vehicle by a U.S. employee who is an indigenous person
                (local hire), prisoner of war, or interned enemy alien are cognizable
                and may be paid if local law imposes liability on the owner of the
                vehicle under the circumstances.
                 (c) Claims Not Payable. (1) Claims of insurers and other subrogees.
                 (2) Claims of sponsored dependents accompanying members and
                civilian employees of the U.S. Armed Forces, or U.S. national civilians
                employed by either the U.S. Government or a civilian contractor
                performing under an agreement or contract with the U.S. Government.
                 (3) Claims of foreign military personnel suffering injury or death
                incident to a joint military mission or exercise with U.S. Armed
                Forces, or as a result of the actions of a member or civilian employee
                of the U.S. Armed Forces, acting within the scope of employment, unless
                a treaty specifically provides for recovery.
                 (4) Claims of civilian employees of the U.S., including local
                inhabitants, injured incident to their employment. Compensation for
                such injuries is separately provided in Federal statutes and agreements
                with foreign governments.
                 (5) Claims of national governments or their political subdivisions
                engaging in combat with the United States or its allies.
                 (6) Claims of a national or a corporation controlled by a national
                of a country engaging in combat with the United States or its allies,
                unless it is determined that the claimant is friendly.
                 (7) Claims resulting from combat activities, except that claims
                arising from an accident or malfunction incident to aircraft
                operations, including airborne ordnance, occurring while preparing for,
                going to, or returning from a combat mission may be paid.
                 (8) Claims previously paid or denied.
                 (9) Claims purely contractual in nature.
                 (10) Claims involving private contractual and domestic obligations
                of individuals.
                 (11) Claims based solely on compassionate grounds.
                 (12) Claims for paternity or illegitimacy.
                 (13) Claims payable under other Federal statutes.
                 (14) Claims for damage caused by naval vessels, unless payment is
                specifically authorized by the Office of the Judge Advocate General of
                the Navy (Code 11) in accordance with JAGINST 5800.7F, Chapter XI.
                [[Page 51385]]
                Sec. 750.46 Statute of limitations.
                 An FCA claim must be presented in writing to the appropriate U.S.
                military authorities within 2 years of the date it accrues. A claim
                accrues when the claimant discovers or reasonably should have
                discovered the personal injury or property damage giving rise to the
                claim. To compute the statutory time period, exclude the day the claim
                accrued and include the day the claim was filed.
                Sec. 750.47 Filing a claim.
                 (a) Presentation of the Claim. An FCA claim may be presented to the
                Office of the Judge Advocate General, Tort Claims Unit (TCU) Norfolk,
                9620 Maryland Ave, Suite 205, Norfolk, VA 23511-2949. In the
                alternative, the claim may be presented to any U.S. authority or to
                foreign government authorities if authorized under a Status of Forces
                Agreement (SOFA) or other applicable treaty or agreement. Claims shall
                be promptly transferred to the appropriate authorities for processing
                (see paragraph (b) of this section).
                 (b) Appropriate Authorities--(1) General. The commanding officer of
                the organization or individual(s) whose activities gave rise to the
                claim has authority to process claims under these regulations, subject
                to the restrictions of any SOFA provisions or DODI 5515.18 (series)
                which assigns single-service claims responsibility. A commander who
                receives a claim that is not under his cognizance shall forward the
                claim promptly to the appropriate authority and shall provide
                assistance necessary to investigate and adjudicate the claim.
                 (2) RLSO EURAFSWA. The Commanding Officer RLSO EURAFSWA has
                authority to process all claims under the Foreign Claims Act arising in
                their Area of Responsibility. The Commanding Officer RLSO EURAFSWA is
                authorized to pay any claim regardless of the amount claimed when
                payment does not exceed $50,000.00 and has unlimited denial authority.
                 (3) International agreements. Article VIII of the NATO SOFA and
                similar provisions of SOFAs with individual foreign countries may
                restrict the use of the FCA by authorizing foreign government officials
                to process claims that would otherwise be cognizable under the FCA.
                Therefore, consult the pertinent directives of the area commander to
                ensure proper processing.
                 (4) Single-service claims responsibility. DoDI 5515.08 (series)
                assigns single-service claims responsibility to individual military
                departments for processing claims in specified foreign countries. It
                also authorizes the Navy to settle claims for less than $2,500 arising
                in foreign ports visited by U.S. forces afloat, including those arising
                in countries assigned to the Departments of the Army and the Air Force.
                If a claim arises in a country not specifically assigned by either of
                these references, the military service component of the employee who
                caused the damage/injury is responsible for adjudication. Claims
                arising out of DON activities in countries assigned to the Army and the
                Air Force must be forwarded promptly to the appropriate military
                department and may not be processed by DON entities.
                 (5) Claims under admiralty jurisdiction. Admiralty claims arising
                in foreign countries may be adjudicated under the FCA provided that the
                claim is not otherwise cognizable under applicable admiralty statutes
                and regulations. In particular, the reciprocity provisions of the
                Public Vessels Act (46 U.S.C. 781 and 785) must be met. Prior
                authorization by the Judge Advocate General (OJAG Code 11) is required.
                Sec. 750.48 The administrative claim.
                 A proper claim must be in writing and filed on a Standard Form 95
                or other written notification of the incident. If a letter or other
                written notification is used, it must set forth the same basic
                information required by Standard Form 95.
                 (a) Proper signature. The claim may be signed by either the injured
                party or an authorized agent. A claim signed by an agent or legal
                representative will be filed in the name of the claimant, show the
                title or legal capacity of the person signing, and be accompanied by
                evidence of their authority to sign the claim on behalf of the
                claimant.
                 (b) Sufficiently detailed. The claim must describe the incident in
                sufficient detail to give reasonable notice of the time, place,
                circumstances, and resulting harm so as to allow the DON to
                investigate.
                 (c) Sum certain. A proper claim must include a demand for a
                specific and definite sum of money damages for property damage,
                personal injury, or death alleged to have occurred as a result of the
                incident.
                 (d) Substantiation. See subpart B, Sec. 750.19 for a detailed
                discussion of the supporting documentation required to substantiate a
                tort claim presented against the United States under any of the claims
                statutes. Supporting documentation requirements will vary according to
                the type of claim presented (i.e., property damage, personal injury, or
                wrongful death).
                 (e) Amending the claim. A claim may be amended in writing at any
                time prior to final settlement or denial and must be signed by the
                claimant or an authorized agent.
                Sec. 750.49 Damages.
                 (a) General. The local laws, standards, and customs, of the country
                where the incident occurred control when computing damages for personal
                injury, death, or damage to property.
                 (b) Compensation. An appropriate award is generally limited to
                reasonable compensation for the injury, death, or property damage, or
                loss only and does not extend to payment of punitive damages,
                interests, costs, attorneys fees, or any other such charges, regardless
                of whether they are allowed by local laws, standards, or customs. In
                cases of personal injury or death, compensation may include medical
                expenses, pain and suffering, burial expenses, loss of society and
                companionship, and lost income. In cases of permanent disability,
                compensation may also include diminished earning capacity and costs of
                medical care in the future. In cases of property damage, compensation
                mayinclude cost of repair, cost of replacement or diminished value, and
                loss of use of the property.
                 (c) Comparative fault. A claimant's negligence or wrongful act
                contributing to the injury, death, or damage that is the basis of the
                claim may bar the claim entirely or diminish the claim proportionately.
                Sec. 750.50 Foreign Claims Commissions.
                 (a) Purpose. The purpose of a Foreign Claims Commission (FCC) is to
                settle meritorious claims fairly and promptly. An FCC shall deny or pay
                (in full or in part) all claims in accordance with its adjudicating
                authority or, when required under these regulations, forward
                adjudication recommendations to appropriate higher authorities.
                 (b) Authority to appoint. (1) All commanding officers of the Navy
                and Marine Corps have authority to appoint an FCC, unless restricted by
                a competent superior commander.
                 (2) For the purpose of the FCA and these regulations, the following
                officers are considered commanding officers: The Judge Advocate General
                of the Navy; Commanding Officer, RLSO EURAFSWA; Chiefs of Naval
                Missions (including Chiefs of the Naval Section of Military Missions);
                Chiefs of Military Assistance Advisory Groups (including chiefs of the
                naval section of such groups); and naval attach[eacute]s.
                 (c) Composition of the FCC. An FCC shall be composed of either one
                or three members. Members shall be commissioned officers of the Navy or
                [[Page 51386]]
                Marine Corps of sufficient grade and experience to carry out the
                purpose of the Commission. Whenever possible, at least one member of
                the Commission shall be a judge advocate. For detailed discussion of
                the composition of an FCC, the qualification of its members, and the
                various levels of adjudicating authority held by each type of
                Commission (ranging from $5,000 to $20,000 depending on the composition
                of the Commission), see JAGINST 5800.7F, Chapter VIII (paragraph 0815).
                Sec. 750.51 Processing claims.
                 (a) Action by the Appointing Authority. The cognizant commanding
                officer [see Sec. 750.47(b)(1)] is the appointing authority for the
                FCC that will adjudicate the claim. The staff judge advocate for the
                cognizant commanding officer is responsible for providing advice,
                guidance, and review to the commanding officer, the FCC, and claims
                investigating officer on the policies and procedures in these
                regulations. The appointing authority shall convene an appropriate
                investigation or obtain the report of investigation if one has already
                been conducted, refer the claim with the investigative report to the
                FCC for adjudication, and take action or forward it as appropriate.
                 (b) Action by the Claims Investigating Officer. There is no formal
                procedure for conducting an investigation of a foreign claim. A
                transcript of witness testimony is not required; a written summary of
                the substance of any statement is adequate. The formal rules of
                evidence do not apply, and any relevant evidence may be received to
                establish the essential facts of the incident. A written report of the
                investigation shall be submitted to the appointing authority as soon as
                practicable.
                 (c) Action by the FCC. The FCC will review the claim and the
                investigation. If appropriate, the FCC will negotiate with the claimant
                for settlement of the claim within the limits of the FCC's adjudicating
                authority. The FCC will deny or pay the claim, in full or in part,
                within the limits of the FCC's denial or payment authority ($20,000
                max). When an FCC recommends payment or denial of a claim in excess of
                its denial or payment authority, the original report and all related
                documents shall be forwarded to the appointing authority for retention
                with a copy forwarded by the appointing authority to OJAG Code 15 for
                further action.
                Sec. 750.52 Action on forwarded claims.
                 When the FCC recommends payment or denial of a claim in excess of
                the FCC's authority, the following officers may approve or disapprove
                the recommendation and pay the claim, in whole or in part, or return
                the claim with instructions to the appointing authority or the FCC:
                 (a) Claims up to $50,000.00. The Deputy Judge Advocate General of
                the Navy, the Assistant Judge Advocate General (Civil Law), the
                Division Director (Claims and Tort Litigation) and for claims arising
                in his area of responsibility, the Commanding Officer, RLSO EURAFSWA.
                These officials have unlimited denial authority.
                 (b) Claims from $50,000.00 to $100,000.00. The Judge Advocate
                General of the Navy.
                 (c) Claims in excess of $100,000.00. The Secretary of the Navy.
                Sec. 750.53 Reconsideration, appeal, and suit.
                 (a) Reconsideration. (1) A claim may be reconsidered when it
                appears that the original action was incorrect in law or fact based on
                the evidence of record at the time of the action or based on evidence
                subsequently received. The request for reconsideration must be received
                by the FCC within 60 days of the date of the denial letter unless good
                cause is shown.
                 (2) Claimant's request for reconsideration should indicate the
                legal or factual basis asserted as grounds for relief.
                 (3) The claim may be reconsidered by the original FCC, a successor
                FCC, or a newly appointed FCC upon written request from the claimant,
                upon the original FCC's initiative, or upon direction by a superior
                officer authorized to take action on the claim.
                 (4) If the FCC concludes that the original action was incorrect, it
                will modify the decision or forward a supplemental recommendation
                through the appointing authority for action. If the FCC concludes that
                the original action was correct, it will affirm the decision, and
                forward a memorandum for information through the appointing authority.
                 (5) When action on reconsideration has been completed and approved,
                the appointing authority shall notify the claimant that such action is
                final and conclusive by law.
                 (b) Appeal. There is no right of appeal under this statute.
                 (c) Suit. The United States has not consented to be sued under this
                statute.
                Sec. 750.54 Payment.
                 (a) Release. A settlement agreement and release shall be obtained
                from the claimant when payment of an award is accepted. The settlement
                amount shall be set forth in U.S. Dollars to be paid in local currency
                at the currency exchange rate in effect at the time of payment. If
                payment will be made by electronic wire transfer, the necessary banking
                and routing information should be included on the settlement agreement.
                 (b) Advance Payments. Advance payments may be paid under this
                section.
                 (c) Currency. Due to Federal currency restrictions, all payments
                under this chapter shall be made in the local currency of the country
                in which the claim arose or in the currency of the country where the
                claimant resides at the time of such payment.
                Subpart E--Claims Under the Nonscope Claims Act (NSCA)
                Sec. 750.55 Scope of subpart E.
                 This section provides information on payment of claims against the
                United States, not payable under any other statute, for damages caused
                by the act or omission, negligent, wrongful, or otherwise involving
                fault, of DON personnel acting outside the scope of their employment or
                by latent defects in certain Government equipment.
                Sec. 750.56 Statutory authority.
                 Title 10 U.S.C. 2737 provides authority for the administrative
                settlement in an amount not to exceed $1,000.00 of any claim against
                the United States not cognizable under any other provision of law for
                damage, loss, or destruction of property or for personal injury or
                death caused by military personnel or a civilian official or employee
                of a military department incident to the use of a vehicle of the United
                States at any place, or any other property of the United States on a
                Government installation. There is no right to sue. There are no
                territorial limitations and the Act has worldwide application.
                Sec. 750.57 Definitions.
                 (a) Civilian official or employee. Any civilian employee of the DON
                paid from appropriated funds at the time of the incident.
                 (b) Vehicle. Includes every description of carriage or other
                artificial contrivance used, or capable of being used, as a means of
                transportation on land.
                 (c) Government installation. Any Federal facility having fixed
                boundaries and owned or controlled by the U.S. Government. It includes
                both military bases and nonmilitary installations.
                Sec. 750.58 Claim procedures.
                 (a) The general provisions of subpart A of this part shall apply in
                determining what is a proper claim, who is a proper claimant, and how a
                claim is to be
                [[Page 51387]]
                processed under 10 U.S.C. 2737 and this section.
                 (b) A claim is presented when the DON receives from a claimant or
                the claimant's duly authorized agent, written notification of a
                nonscope claim incident accompanied by a demand for money damages in a
                sum certain.
                 (c) A claimant may amend a claim at any time prior to final action.
                Amendments will be submitted in writing and signed by the claimant or
                the claimant's duly authorized agent.
                 (d) Claims submitted under the provisions of the FTCA or MCA shall
                be considered automatically for an award under this section when
                payment would otherwise be barred because the DON personnel were not in
                the scope of their employment at the time of the incident. If a tender
                of payment under this section is not accepted by the claimant in full
                satisfaction of the claim, no award will be made, and the claim will be
                denied pursuant to the rules applicable to the statute under which it
                was submitted.
                 (e) Damages caused by latent defects of ordinary, commercial type,
                Government equipment that were not payable under the MCA, Foreign
                Claims Act, or FTCA are payable under this section.
                 (f) Nonscope claims for damages caused by local national DON
                employees overseas are also payable under this section if the injury
                was caused by the use of Government equipment.
                 (g) Payment may not be made on a nonscope claim unless the claimant
                accepts the amount offered in full satisfaction of the claim and signs
                a settlement agreement.
                 (h) Payment for nonscope claims adjudicated by field commands will
                be affected through their local disbursing office by use of funds
                obtained from the Judge Advocate General.
                 (i) If a nonscope claim is denied, the claimant shall be informed
                of reasons in writing and advised he may appeal in writing to the
                Secretary of the Navy (Judge Advocate General) provided the appeal is
                received within 30 days of the notice of denial. The provisions of
                Sec. 750.38(c) of subpart C also apply to denials of nonscope claims.
                Sec. 750.59 Statute of limitations.
                 (a) A claim must be presented in writing within 2 years after it
                accrues. It accrues at the time the claimant discovers, or in the
                exercise of reasonable care should have discovered, the existence of
                the act or omission for which the claim is filed.
                 (b) In computing time to determine whether the period of limitation
                has expired, exclude the incident date and include the date the claim
                was presented.
                Sec. 750.60 Officials with authority to settle.
                 The Judge Advocate General; Deputy Judge Advocate General;
                Assistant Judge Advocate General, Civil Law; Director, Claims and Tort
                Litigation; and Head, Tort Claims Branch, Claims and Tort Litigation
                may settle a nonscope claim.
                Sec. 750.61 Scope of liability.
                 (a) Subject to the exceptions in Sec. 750.50 of specific claims
                not payable, the United States shall not pay more than $1,000.00 for a
                claim against the United States, not cognizable under any other
                provision of law, except Article 139, UCMJ.
                 (b) Article 139, UCMJ, 10 U.S.C. 939, is not preemptive. The
                prohibition in 10 U.S.C. 2737 on paying claims ``not cognizable under
                any other provisions of law'' applies only to law authorizing claims
                against the United States. Article 139 authorizes claims against
                service members. See subpart H of this part.
                Sec. 750.62 Claims not payable.
                 (a) A claim for damage, loss, or destruction of property or the
                personal injury or death caused wholly or partly by a negligent or
                wrongful act of the claimant or his agent or employee.
                 (b) A claim, or any part thereof, that is legally recoverable by
                the claimant under an indemnifying law or indemnity contract.
                 (c) A subrogated claim.
                Sec. 750.63 Measure of damages.
                 Generally, the measure-of-damage provisions under the MCA are used
                to determine the extent of recovery for nonscope claims. Compensation
                is computed in accordance with Sec. Sec. 750.34 and 750.35 of subpart
                C, except damages for personal injury or death under this section shall
                not be for more than the cost of reasonable medical, hospital, and
                burial expenses actually incurred and not otherwise furnished or paid
                for by the United States.
                Subpart F--Claims Under the Personnel Claims Act (PCA)
                Sec. 750.64 Scope of subpart F.
                 (a) This subpart describes the procedures and substantive bases for
                administrative settlement of claims submitted by Department of the Navy
                (DON) personnel and civilian employees under the Military Personnel and
                Civilian Employees' Claims Act (PCA), 31 U.S.C. 3721, and for the
                administrative pursuit by DON of recovery from carriers, contractors,
                or insurers responsible for loss, damage or destruction of such
                personal property.
                 (b) The PCA is a gratuitous payment statute that Congress intended
                to help lessen the hardships of military life by providing limited
                compensation for certain types of property losses. The PCA authorizes
                payment of claims for the fair market value (FMV) of personal property
                lost, damaged or destroyed incident to service. This limited
                compensation is not a substitute for private insurance. Intangible
                property and consequential and incidental damages are not considered
                personal property and are not payable under the statute. ``Fair market
                value'' is the price that an item would sell for from a retailer who
                routinely sells the product minus the depreciation based upon its age
                or, if the item cannot be purchased, what it cost to replace on the
                open market, given its age and condition.
                 (c) The PCA and the provisions of this enclosure preempt payment
                under any other claims statute. Claims not cognizable under the PCA
                may, however, be cognizable under another claims statute.
                Sec. 750.65 Statutory authority.
                 (a) 31 U.S.C. 3721, The Military Personnel and Civilian Employees'
                Claims Act (PCA).
                 (b) 10 U.S.C. 2636a (Full Replacement Value).
                 (c) 10 U.S.C. 2740 (Gap Legislation).
                 (d) 31 U.S.C. 3711--3720e, The Federal Claims Collection Act.
                 (e) 49 U.S.C. 14706, The Carmack Amendment to the Interstate
                Commerce Act.
                Sec. 750.66 Adjudicating authority.
                 (a) Responsibility for adjudicating claims under the PCA and
                asserting and settling claims against carriers, contractors, or
                insurers rests with the Personnel Claims Unit (PCU) located in Norfolk,
                Virginia.
                 (b) The Judge Advocate General, the Deputy Judge Advocate General,
                the Assistant Judge Advocate General (Civil Law), the Director, Claims
                and Tort Litigation (OJAG Code 15), and the Head, Affirmative and
                Personnel Claims Branch (OJAG Code 15) have been delegated authority to
                adjudicate claims against the DON for $100,000.00 or less and denial
                authority in any amount. Any individual who has been personally
                designated by the Director, Claims and Tort Litigation, may adjudicate
                claims up to $40,000.00 and may deny claims in any amount.
                Sec. 750.67 Proper claimants.
                 The definition of a proper claimant is based on a claimant's status
                at the time the claim accrued, even if the member or employee has
                separated from Federal
                [[Page 51388]]
                service at the time the claim is filed. The following are proper
                claimants:
                 (a) Navy and Marine Corps active duty members and reservists on
                active duty or active duty for training at the time the claim accrued;
                 (b) Civilian employees of the Navy and Marines who are paid from
                appropriated funds;
                 (c) Non-appropriated Fund Instrumentality (NAFI) employees whose
                salaries are paid from non-appropriated funds;
                 (d) Department of Defense (DoD) Education Activity (DoDEA)
                teachers; and
                 (e) Authorized agents or legal representatives of the claimant, who
                provide a Power of Attorney and certain relatives of a deceased
                claimant.
                Sec. 750.68 Claims payable.
                 (a) Claims for loss of property are compensable if the loss was
                incident to service and possession of the property was reasonable and
                useful under the circumstances.
                 (1) Claims may be payable for loss of property at assigned quarters
                or other authorized places, i.e., non-household goods (non-HHG) claims,
                if caused by theft, vandalism, fire, flood, or other unusual
                occurrence.
                 (2) Claims may also be payable for the loss of property incurred
                during transportation or storage under orders and at Government
                expense, i.e., household goods (HHG) claims.
                Sec. 750.69 Claims not payable.
                 (a) Any part of the loss that was caused in any part by the
                negligence or wrongful act of the claimant.
                 (b) Any part of the loss that is payable by any available
                insurance, except for the loss of HHG shipped or stored at Government
                expense pursuant to the Full Replacement Act. In this case, the
                claimant would first file a claim with the Transportation Service
                Provider (TSP) in accordance with the contract requirements. In cases
                where a catastrophic event occurs during transit, and the loss exceeds
                the TSP's maximum liability, the member must then pursue through any
                available insurance before filing a PCA claim.
                 (c) Any claim presented more than two years from the date of
                accrual.
                Sec. 750.70 Statute of limitations.
                 A claim must be filed within two years from the date it accrues
                unless it accrues during armed conflict and good cause is shown, in
                which case the time limitation may be extended until the armed conflict
                is terminated. A claim accrues on the day the claimant knows or should
                know of the loss--either the day of the incident or in the case of HHG
                claims, the date of delivery.
                Sec. 750.71 Filing a claim.
                 (a) Non-HHG claims as well as HHG claims not electronically filed
                in the USTRANSCOM-managed claims filing system should be submitted on
                DD Form 1842 (Claim for Loss of or Damage to Personal Property Incident
                to Service) accompanied by DD Form 1844 (Schedule of Property).
                However, any writing will be accepted and considered as long as it
                substantially describes the facts necessary to support a claim
                cognizable under these regulations. The claim must be signed by a
                proper claimant or by a person with appropriate power of attorney (POA)
                from a proper claimant. The claim must be submitted to the PCU at the
                address, email, or facsimile number indicated at the U.S. Navy Judge
                Advocate General's Corps website at https://www.jag.navy.mil/organization/code_15.htm.
                 (b) HHG Claims electronically filed in a USTRANSCOM-managed claims
                filing system can be transferred to the PCU electronically by selecting
                the ``transfer to MCO option available in the system.
                 (c) If a HHG claim is received by a PCU within nine months after
                the date of delivery, and the member has not first filed with the TSP,
                the PCU will transmit the claim to the TSP in order to ensure the
                member meets the requirements to qualify for FRV, unless the claimant
                directs otherwise.
                Sec. 750.72 Computation of payment.
                 The military services publish an Allowance List-Depreciation Guide
                (ALDG) that specifies rates of depreciation and maximum payments
                applicable to categories of property that governs all PCU payments. For
                HHG, the value of a loss is first determined consistent with the ALDG
                and then adjusted to reflect payments, repairs, or replacement by TSPs
                or insurance companies, or lost potential recoveries except in very
                limited cases involving HHG shipments where the PCU may pay Full
                Replacement Value (FRV).
                Sec. 750.73 Notice of decision.
                 Upon adjudication, the claimant will be notified in writing of the
                amount authorized and of the right to request reconsideration of the
                decision.
                Sec. 750.74 Reconsideration.
                 A request for reconsideration must be submitted to the original
                adjudicating authority within six months from the date the claimant
                received the initial claim adjudication.
                Sec. 750.75 Carrier recovery claims.
                 For Naval and Marine Corps personnel whose PCA claims for HHGs lost
                or damaged during shipment were adjudicated and compensated by the PCU,
                assertion of a claim against the carrier to recover the amount paid is
                the responsibility of the PCU unless the shipment was arranged by the
                Department of State (DOS). In those moves, recovery is the
                responsibility of DOS. Recovery efforts will be in accordance with the
                Defense Personal Property Program Claims and Liability Business Rules.
                Subpart G--Admiralty Tort Claims
                Sec. 750.76 Scope of subpart G.
                 This part applies to admiralty tort claims. These include claims
                against the United States for damage caused by a vessel in the naval
                service or by other property under the jurisdiction of the Navy, or
                damage caused by a maritime tort committed by an agent or employee of
                the Navy for which the Navy has assumed an obligation to respond for
                damage. Affirmative claims by the United States for damage caused by a
                vessel or floating object to Navy property are covered under this part.
                Sec. 750.77 Statutory authority.
                 28 U.S.C. 1333; 46 U.S.C. 740; 10 U.S.C. 7621-7623; 32 CFR 700.105
                and 700.331.
                Sec. 750.78 Organization.
                 (a) Administrative authority of the Secretary of the Navy. The
                Secretary of the Navy has administrative authority for settlement and
                direct payment where the amount paid does not exceed $ 15,000,000 and
                where the matter is not in litigation, of claims for damage caused by
                naval vessels or by other property under the jurisdiction of the Navy,
                or damage caused by a maritime tort committed by an agent or employee
                of the Navy, and for towage or salvage services rendered to naval
                vessels (10 U.S.C. 7622). The Secretary also has authority to settle
                affirmative admiralty claims for damage caused by a vessel or floating
                object to property under the jurisdiction of the Navy (10 U.S.C. 7623).
                 (b) Admiralty and Maritime Law Division of the Office of the Judge
                Advocate General. The Navy's admiralty tort claims are processed and
                adjudicated in the Admiralty and Maritime Law Division of the Office of
                the Judge Advocate General. All correspondence with the Admiralty and
                Maritime Law Division should be addressed to the Office of the Judge
                Advocate General (Code 11), 1322
                [[Page 51389]]
                Patterson Avenue SE, Suite 3000, Washington Navy Yard, DC 20374-5066.
                 (c) Mission and policy. The primary mission of the Admiralty and
                Maritime Law Division is to effect prompt and equitable settlements of
                admiralty claims, both against and in favor of the United States. The
                settlement procedure has evolved to eliminate the expenses and delays
                arising out of litigation and to obtain results advantageous to the
                financial interests of the United States. Where settlements cannot be
                made, litigation ensues in the Federal Courts. The final test of
                whether a settlement is justified is the probable result of litigation.
                Settlements are therefore considered and determined by the probable
                results of litigation. The policy of the Navy is to effect fair and
                prompt settlements of admiralty claims wherever legal liability exists.
                 (d) Admiralty tort claims. As indicated in paragraphs (a) through
                (c) of this section, the Admiralty and Maritime Law Division primarily
                handles admiralty tort claims. These are claims for damage caused by
                vessels in the naval service or by other property under the
                jurisdiction of the Navy, or damage caused by a maritime tort committed
                by an agent or employee of the Navy, and claims for damage caused by a
                privately owned vessel to a vessel or property of the Navy (affirmative
                claims). The Admiralty and Maritime Law Division also handles claims
                for towage and salvage services rendered to a vessel in the naval
                service.
                 (e) Admiralty contract claims. Admiralty contract claims arising
                out of the operations of the Military Sealift Command (MSC) are handled
                by its Office of Counsel. MSC is responsible for the procurement of
                vessels and space for the commercial ocean transportation of DoD cargo,
                mail, and personnel. It is also responsible for the maintenance,
                repair, and alteration of Government-owned vessels assigned to it. The
                Office of Counsel, MSC, deals with the various claims of a contract
                nature which arise out of these operations. These include claims for
                cargo damage, charter hire, redelivery, general average, and claims
                arising under MSC ship-repair contracts.
                 (f) Damage caused by Navy contract stevedores. Office of Counsel,
                Naval Supply Systems Command, has cognizance of admiralty claims for
                damage caused by Navy contract stevedores. Under these stevedore
                contracts, the stevedoring companies are responsible for negligent acts
                of their employees which result in vessel damage. It is important that
                the extent of any such damage be accurately determined and promptly
                reported to the contracting officer having cognizance of the particular
                stevedore contract involved.
                 (g) Resolving conflicts. Admiralty tort claims, such as collision,
                personal injury, and death claims, are dealt with by the Admiralty and
                Maritime Law Division, irrespective of whether an MSC vessel or other
                naval vessel is involved. Whether any particular claim is to be handled
                by JAG or by MSC, therefore, is determined by the nature of the claim.
                Cases may arise which could be handled by either office. If doubt
                exists, such matters should be reported both to JAG and to MSC. An
                agreement will then be reached between the Admiralty and Maritime Law
                Division and the Office of Counsel, MSC, as to how the incident should
                be handled.
                Sec. 750.79 Claims against the Navy.
                 (a) Settlement authority. 10 U.S.C. 8822 provides settlement
                authority for damage caused by a vessel in the naval service or by
                other property under the jurisdiction of the DON; compensation for
                towage or salvage service, including contract salvage, rendered to a
                vessel in the naval service or to other property of the Navy; or damage
                caused by a maritime tort committed by any agent or employee of the DON
                or by property under the jurisdiction of the DON. The limit on the
                Secretary's settlement authority is payment of $15,000,000. A claim
                which is settled for an amount over $15,000,000 is certified to
                Congress for payment. Section 8822 provides that the Secretary may
                delegate his settlement authority in matters where the amount to be
                paid is not over $1,000,000. Under the Secretary's delegation,
                settlements not exceeding $300,000 may be effected by the Judge
                Advocate General. Under the Secretary's delegation, settlements not
                exceeding $250,000 may be effected by the Deputy Assistant Judge
                Advocate General (Admiralty and Maritime Law).
                 (b) Settlement is final. The legislation specifically authorizes
                the Secretary to settle, compromise, and pay claims. The settlement,
                upon acceptance of payment by the claimant, is final and conclusive for
                all purposes.
                 (c) Settlement procedures. Where the amount paid is over $300,000,
                after agreement is reached with counsel or claimants, the procedure is
                to prepare a settlement recommendation for the approval of the
                Secretary of the Navy. When settlement has been approved, the voucher
                required for effecting payment is prepared. The settlement check is
                then exchanged, in keeping with the commercial practice, for an
                executed release. In some situations, where the exchange of documents
                is impracticable, a claimant is requested to forward the executed
                release by mail, on the understanding that the release does not become
                effective until the check is received in payment. Claims settled under
                10 U.S.C. 8822 are paid out of annual DoD appropriations.
                 (d) Limitation period. The Secretary's settlement authorization is
                subject to a two-year limitation. This limitation is not extended by
                the filing of claim nor by negotiations or correspondence. A settlement
                agreement must be reached before the end of the two-year period. If
                settlement is not accomplished, then the claimant must file suit under
                the appropriate statute to avoid the limitation bar. The agreement
                reached in negotiations must receive the approval of the Secretary of
                the Navy or his designee, depending on the amount involved, prior to
                the expiration of the two-year period.
                 (e) Matters in litigation. When suit is filed, the matter comes
                within the cognizance of the Department of Justice, and the Secretary
                of the Navy is no longer able to entertain a claim or to make
                administrative settlement.
                Sec. 750.80 Affirmative claims.
                 (a) Settlement authority. The Navy has the same authority to settle
                affirmative admiralty claims as it does claims against the Navy. The
                statute conferring this authorization is codified in 10 U.S.C. 8823,
                and is the reciprocal of 10 U.S.C. 8822 referred to in Sec. 750.79.
                 (b) Scope. 10 U.S.C. 8823 is a tort claims-settlement statute. It
                is not limited to affirmative claims arising out of collision, but
                embraces all instances of damage caused by a vessel or floating object
                to property of the United States under the jurisdiction of the DON or
                for which the DON has assumed an obligation to respond. Perhaps the
                most frequent instance is where a privately owned vessel damages a Navy
                pier or shore structure. To eliminate any issue of whether the damaging
                instrumentality was a vessel, the words ``or floating object'' were
                included.
                 (c) Statute of limitation. The United States is subject to a three-
                year statute of limitation when it asserts an affirmative claim for
                money damages grounded in tort. This limitation is subject to the usual
                exclusions, such as inability to prosecute due to war, unavailability
                of the ``res'' or defendant, and certain exemptions from legal process
                (28 U.S.C. 2415, 2416).
                 (d) Litigation. 10 U.S.C. 8823 does not apply to any claim where
                suit is filed. If the Admiralty and Maritime Law Division is unable to
                effect settlement, the matter is referred to the Department of Justice
                for the filing of a complaint
                [[Page 51390]]
                against the offending party. Thereafter, as in the case of adverse
                litigated claims, the Navy has no further authority to effect
                settlement.
                Sec. 750.81 Salvage.
                 (a) Scope. This section relates to salvage claims against or by the
                Navy for compensation for towage and salvage services, including
                contract salvage, rendered to a vessel in the naval service or to other
                property under the jurisdiction of the DON, or for salvage services
                rendered by the DON. Suits for salvage may be maintained under the
                Public Vessels Act, and salvage claims are within the Secretary of the
                Navy's administrative-settlement authority under 10 U.S.C. 8822.
                Salvage claims against the Navy are reported to and processed by the
                Judge Advocate General (Admiralty and Maritime Law Division). Both
                claims and suits for salvage against the United States are subject to
                the two-year limitation of the Public Vessels Act and the Navy's
                settlement authority.
                 (b) Affirmative claims. Authorization for the settlement of
                affirmative salvage claims is contained in 10 U.S.C. 8703. Assertion of
                such claims is handled in the first instance by the Assistant
                Supervisor of Salvage (Admiralty), USN, Naval Sea Systems Command,
                SUPSALV--00CL, 1333 Isaac Hull Ave. SE, Stop 1070, Washington Navy
                Yard, DC 20376-1070. Salvage claims are referred to the Admiralty
                Division only if the Assistant Supervisor of Salvage (Admiralty) is
                unsuccessful in making collection. Any money received in settlement of
                affirmative salvage claims is credited to appropriations for
                maintaining salvage facilities by the Navy, pursuant to 10 U.S.C. 8704.
                Subpart H--Claims for Property Damage Under Article 139, Uniform
                Code of Military Justice
                Sec. 750.82 Scope of subpart G.
                 This chapter provides for assessments against the pay of members of
                the naval service in satisfaction of claims for property damage caused
                under certain circumstances. Claims for damage, loss, or destruction of
                privately owned property caused by a person or persons in the naval
                service, are payable under Article 139, UCMJ, only if such damage,
                loss, or destruction is caused by riotous conduct, willful conduct, or
                acts showing such reckless or wanton disregard of the property rights
                of others that willful damage or destruction is implied. Acts of the
                type punishable under Article 109, UCMJ, are cognizable under Article
                139, UCMJ. Charges against pay under these regulations shall be made
                only against the pay of persons shown to have been principal offenders
                or accessories.
                Sec. 750.83 Statutory authority.
                 10 U.S.C. 939, commonly referred to as Uniform Code of Military
                Justice, Article 139: Redress of injuries to property.
                Sec. 750.84 Claims not cognizable.
                 The following claims are not cognizable under this subpart:
                 (a) Claims resulting from simple negligence;
                 (b) Claims of subrogees;
                 (c) Claims for personal injury or death;
                 (d) Claims arising from acts or omissions within the scope of
                employment of the offender; and
                 (e) Claims for reimbursement for damage, loss, or destruction of
                Government property.
                Sec. 750.85 Limitation on claims.
                 (a) Time limitations. A claim must be submitted within 90 days of
                the incident giving rise to it.
                 (b) Acts of property owner. When the acts or omissions of the
                property owner, his lessee, or agent were a proximate contributing
                factor to the loss or damage of the property, assessments will not be
                made against members of the naval service in excess of the amount for
                which they are found to be directly responsible, i.e., comparative
                responsibility for the loss will be the standard for determining
                financial responsibility.
                 (c) Only direct damages considered. Assessment will be made only
                for direct physical damages to the property. Indirect, remote, or
                inconsequential damage will not be considered.
                Sec. 750.86 Complaint by the injured party and investigation.
                 (a) A claim shall contain a statement setting forth the amount of
                the claim, the facts and circumstances surrounding the claim, and any
                other information that will assist in the investigation and resolution
                of the matter. When there is more than one complaint resulting from a
                single incident, each claimant must file a claim separately and
                individually. The claim shall be personally signed by the claimant or
                his duly authorized representative or agent.
                 (b) Where a complaint is received by a commanding officer to whose
                command the alleged offenders do not report, he shall forward the claim
                and other pertinent information about the matter to the member's
                commanding officer. Where the command of the alleged offenders cannot
                be determined, the claim and supporting materials shall be forwarded to
                the Chief of Naval Personnel or the Commandant of the Marine Corps, as
                appropriate, for action.
                 (c) Once a complaint is received, the responsible commanding
                officer will convene an investigation into the circumstances
                surrounding the claim, gather all relevant information about the matter
                (answering the who, what, where, when, why, and how questions), and
                make findings and opinions, as appropriate, about the validity of the
                claim under Article 139, UCMJ, and these regulations. The investigation
                shall determine the amount of damage suffered by the property owner.
                 (d) The investigation shall make recommendations about the amount
                to be assessed against the pay of the responsible parties. If more than
                one person is found responsible, recommendations shall be made about
                the assessments against all individuals.
                Sec. 750.87 Action where offenders are members of one command.
                 (a) Action by commanding officer. The commanding officer shall
                ensure the alleged offenders are shown the investigative report and are
                advised they have 20 days within which to submit a statement or
                additional information on the incident. If the member declines to
                submit information, he shall so state in writing within the 20-day
                period. The commanding officer shall review the investigation and
                determine whether the claim is properly within the provisions of
                Article 139, UCMJ, and these regulations, and whether the facts
                indicate responsibility for the damage on members of the command. If
                the commanding officer finds the claim payable under these regulations,
                he shall fix the amount to be assessed against the offenders.
                 (b) Review. If the commanding officer has authority to convene a
                general court-martial, no further review of the investigation is
                required as to the redress of injuries to property. If the commanding
                officer does not have general court-martial convening authority, the
                investigation and the commanding officer's action thereon shall be
                forwarded to the officer exercising general court-martial jurisdiction
                (OEGCMJ) over the command for review and action on the claim. That
                officer's action on the claim shall be communicated to the commanding
                officer who will take action consistent with the determination.
                 (c) Charge against pay. Where the amount does not exceed $5,000.00,
                the amount ordered by the commanding officer shall, as provided in the
                Navy Comptroller Manual, be charged against
                [[Page 51391]]
                the pay of the offenders and the amounts so collected will be paid to
                the claimant. Where the amount exceeds $5,000.00, the claim, the
                investigation, and the commanding officer's recommendation shall be
                forwarded for review prior to checkage to Headquarters, U.S. Marine
                Corps (JCA) or the Judge Advocate General, as appropriate. The amount
                charged in any single month against the pay of offenders shall not
                exceed one-half of basic pay, as defined in paragraph 126h(2), Manual
                for Courts-Martial. The action of the commanding officer in ordering
                the assessment shall be conclusive on any disbursing officer for
                payment to the claimant of the damages assessed, approved, charged, and
                collected.
                Sec. 750.88 Action where offenders are members of different commands.
                 (a) Action by common superior. The investigative report shall be
                forwarded to the common superior exercising general court-martial
                jurisdiction over the commands to which the alleged offenders are
                assigned. That officer shall ensure the alleged offenders are shown the
                investigative report and permitted to comment on it, should they
                desire, before action is taken on the claim. That officer shall review
                the investigation and determine whether the claim is properly within
                the provisions of Article 139, UCMJ, and these regulations, and whether
                the facts indicate responsibility for the damage on members of his
                command. If the claim is found payable under these regulations, he
                shall fix the amount to be assessed against the offenders and direct
                the appropriate commanding officers to take action accordingly.
                 (b) Forwarding to the Secretary of the Navy (JAG). Where it is not
                practical or possible to carry out the procedure set forth in subpart
                A, the investigation or investigations shall be forwarded to the
                Secretary of the Navy (Judge Advocate General) who will take action in
                the matter. Commanding officers, in such a situation, are not to make
                charges against the pay of their members until directed by the
                Secretary of the Navy (Judge Advocate General).
                Sec. 750.89 Reconsideration and appeal.
                 (a) Reconsideration. The OEGCMJ may, upon a receipt of a request
                for reconsideration by either the claimant or a member who has been
                assessed pecuniary liability, reopen the investigation or take any
                other action he believes is necessary in the interests of justice. If
                the OEGCMJ contemplates acting favorably on the request, he will
                provide all individuals interested in the claim with notice and an
                opportunity to respond. The basis for any change will be noted in the
                OEGCMJ's decision.
                 (b) Appeal. In claims involving $5,000.00 or less, a claimant or
                member who has been assessed pecuniary liability may appeal the
                decision to the OEGCMJ. An appeal must be submitted within 5 days of
                the receipt of the OEGCMJ's decision. Appeals will be forwarded, via
                the OEGCMJ, to the Judge Advocate General or Headquarters, U.S. Marine
                Corps (JCA), as appropriate, for review and final action. In the event
                of an appeal, the imposition of the OEGCMJ's decision will be held in
                abeyance pending final action by the Judge Advocate General or
                Headquarters, U.S. Marine Corps (JCA). If it appears that good cause
                exists that would make it impracticable for an appeal to be submitted
                within 5 days, the OEGCMJ may, in his discretion, grant an extension of
                time, as appropriate. His decision on extensions is final and non-
                appealable.
                Subpart I--Claims Involving Non-Appropriated Fund (NAFI) Activities
                and Their Employees
                Sec. 750.90 Scope of subpart I.
                 This part explains how to process claims for and against the United
                States for property damage, personal injury, or death arising out of
                the operation of non-appropriated fund activities (NAFI). A NAFI is a
                Federal agency within the meaning of the FTCA if the NAFI is charged
                with an essential function of the DON and if the degree of control and
                supervision by the Navy is more than casual or perfunctory.
                Sec. 750.91 Statutory authority.
                 To the extent sovereign immunity is waived by the FTCA, 28 U.S.C.
                1346(b), 2671-2672, 2674-2680, the United States remains ultimately
                liable for payment of NAFI claims under the FTCA. DoD Directive 5515.6,
                ``Processing Claims Arising out of Operations of Nonappropriated Fund
                Activities'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/551506p.pdf) establishes policy governing
                the administrative processing of claims arising out of the operation of
                non-appropriated fund activities.
                Sec. 750.92 Definitions.
                 (a) Non-appropriated-fund instrumentality (NAFI). An
                instrumentality of the Federal Government established to generate and
                administer non-appropriated funds for programs and services
                contributing to the mental and physical well-being of DoD personnel and
                their dependents. A NAFI is not incorporated under the laws of any
                State and enjoys the privileges and immunities of the Federal
                Government.
                 (b) Non-appropriated funds. Funds generated through the use and
                patronage of NAFI's, not including funds appropriated by Congress.
                 (c) Employees of NAFIs. Personnel employed by NAFIs whose salaries
                are paid from non-appropriated funds.
                Sec. 750.93 Participation in insurance programs.
                 (a) Unlike all other tort claims against the Government (which are
                paid by the United States Treasury using appropriated funds), NAFI
                claims are paid by the NAFI whose employee caused the damage.
                Accordingly, some NAFI's, such as flying clubs, carry private
                commercial insurance to protect them from claims for property damage
                and personal injury attributable to their operations. The Commandant of
                the Marine Corps, the Chief of Naval Personnel, and the Commander,
                Naval Supply Systems Command determine whether NAFI's within their
                cognizance shall carry liability insurance or become self-insurers, in
                whole or in part.
                 (b) The Marine Corps requires mandatory participation in the
                Morale, Welfare and Recreation (MWR) Composite Insurance Program by the
                following operations: MWR operations and retail services, food and
                hospitality, recreation; and special NAFI activities including flying
                clubs, rod and gun clubs, Inter-service Rifle Fund, Marine Corps
                Marathon and Dependent Cafeteria Fund. The following organizations may
                also participate in the MWR Composite Insurance Program, if desired:
                Child welfare centers, billeting funds, chapel funds, and civilian
                welfare funds.
                 (c) When the operations of a NAFI result in property damage or
                personal injury, the NAFI's insurance carrier, if any, should be given
                immediate written notification. Notification should not be postponed
                until a claim is filed. When the activity is self-insured, the self-
                insurance fund shall be notified of the potential liability by the
                activity.
                Sec. 750.94 Responsibility.
                 TCU Norfolk has cognizance over all DON claims. Accordingly, TCU
                Norfolk has primary responsibility for the negotiation and settlement
                of NAFI claims. Those NAFI's which carry third party insurance or are
                self-insured [e.g., Navy Exchange Service Command (NEXCOM) and Marine
                Corps Community Services (MCCS)] are authorized to settle and pay their
                own
                [[Page 51392]]
                claims. All other NAFI claims are adjudicated by TCU Norfolk and
                forwarded to the cognizant NAFI's headquarters for payment. Only TCU
                Norfolk has the authority to deny a NAFI claim.
                Sec. 750.95 Negotiation.
                 (a) General. Claims from NAFIs should be processed primarily
                through procedures, regulations, and statutes applicable to similar
                appropriated fund activity claims.
                 (b) When the NAFI is insured. When a NAFI is insured, the insurer
                or the contracted third-party claims administrator (TPA) will normally
                conduct negotiations with claimants. The TCU Norfolk shall monitor the
                negotiations conducted by the insurer or TPA. Monitoring is normally
                limited to ascertaining that someone has been assigned to negotiate, to
                obtain periodic status reports, and to close files on settled claims.
                Any dissatisfaction with the insurer's or TPA's handling of the
                negotiations should be referred directly to the Judge Advocate General
                (Claims and Tort Litigation) for appropriate action. If requested by
                the insurer or TPA, the TCU Norfolk may conduct negotiations. If TCU
                Norfolk negotiates a final settlement, however, request for payment
                will be forwarded to the insurer or TPA for payment. Concurrence by the
                insurer or TPA in the amount of the settlement is not necessary.
                 (c) When the NAFI is not insured. When there is no private
                commercial insurer and the NAFI has made no independent arrangements
                for negotiations, the TCU Norfolk is responsible for conducting
                negotiations. When an appropriate settlement is negotiated by the Navy,
                the recommended award will be forwarded to the NAFI for payment from
                non-appropriated funds.
                Sec. 750.96 Payment.
                 (a) Claims that can be settled for less than $1,500.00. A claim not
                covered by insurance (or not paid by the insurer) that can be settled
                for $1,500.00 or less, may be adjudicated by the TCU Norfolk or single-
                service authority and forwarded to the commanding officer of the
                activity concerned or designee for payment out of funds available to
                the commanding officer. The TCU Norfolk or single-service authority
                will obtain the required release from the claimant.
                 (b) Claims that cannot be settled for less than $1,500.00. A claim
                negotiated by the Navy, not covered by insurance, that is for more than
                $1,500.00 will be forwarded to the cognizant non-appropriated fund
                (NAF) headquarters command for payment from its non-appropriated funds.
                 (c) When payment is possible under another statute. In some cases,
                neither the NAFI nor its insurer may be legally responsible. In those
                instances when there is no negligence, and payment is authorized under
                some other statute, such as the Foreign Claims Act, 10 U.S.C. 2734-
                2736, the claim may be considered for payment from appropriated funds
                or may be referred to the TCU Norfolk for appropriate action.
                 (d) Other claims. A NAFI's private insurance policy is usually not
                available to cover losses that result from some act or omission of a
                mere participant in a non-appropriated fund activity. In the event the
                NAFI declines to pay the claim, the file shall be forwarded to the TCU
                Norfolk for determination.
                Sec. 750.97 Denial.
                 Denial of a NAFI claim will begin the six-month limitation on
                filing suit against the United States for claims filed under the FTCA.
                If a claim is denied, it will be in writing and in accordance with
                subparts A and B of part 750 of this chapter, as appropriate. TCU
                Norfolk should not deny claims that have initially been processed and
                negotiated by a non-appropriated fund activity, its insurer, or TPA,
                until the activity or its insurer has clearly stated in writing that it
                does not intend to pay the claim and has elected to defend the claim in
                court.
                Sec. 750.98 Claims by employees.
                 (a) Property. Claims by employees of NAFIs for loss, damage, or
                destruction of personal property incident to their employment shall be
                processed and adjudicated in accordance with subparts A or B of this
                part, as appropriate. The claims will then be forwarded to the
                appropriate NAFI for payment from non-appropriated funds.
                 (b) Personal injury or death--(1) Personal injury or death of
                citizens or permanent residents of the United States employed anywhere,
                or foreign nationals employed within the United States. Compensation is
                provided by the Longshore and Harbor Workers' Compensation Act (33
                U.S.C. 901-950) for employees of NAFIs who have suffered injury or
                death arising out of, and in the course of, their employment (5 U.S.C.
                8171). That Act is the exclusive basis for Government liability for
                such injuries or deaths that are covered (5 U.S.C. 8173). A claim
                should first be made under that Act if there is a substantial
                possibility the injury or death is covered under the Act's provisions.
                 (2) Personal injury or death of foreign nationals employed outside
                of the continental United States. Employees who are not citizens or
                permanent residents, and who are employed outside the continental
                United States, may be protected by private insurance of the NAFI or by
                other arrangements. When a non-appropriated fund activity has elected
                not to obtain insurance coverage or to make other arrangements,
                compensation is separately provided by Federal statute, military
                regulations, and agreements with foreign countries. See 5 U.S.C. 8172,
                DoD 1401.1-M, Personnel Policy Manual for Non-appropriated Fund
                Instrumentalities and BUPERSINST 5300.10A, NAF Personnel Manual.
                Subpart J--Affirmative Claims Regulations (Property Damage Claims)
                Sec. 750.99 Scope of subpart J.
                 This subpart describes how to assert, administer, and collect
                claims for damage to or loss or destruction of Government property
                through negligence or wrongful acts.
                 The regulations published in 31 CFR chapter IX control the
                collection and settlement of affirmative claims. This section
                supplements the material contained in those regulations. Where this
                section conflicts with the materials and procedure published in 31 CFR
                chapter IX, the latter controls.
                Sec. 750.100 Statutory authority.
                 (a) General. All affirmative claims for damage to or loss of
                Government property in favor of the United States are processed in
                accordance with the Federal Collections Claims Act (31 U.S.C. 3711), as
                amended by the Debt Collection Act of 1982, Public Law 97-365, 96 Stat.
                1749 (25 October 1982), Public Law 101-552, 104 Stat. 2736 (15 November
                1990) and the Debt Collection Improvement Act of 1996, Public Law 104-
                134, 110 Stat. 1321, 1358 (26 April 1996).
                 (b) Statute of limitations. Subject to specific provisions in other
                statutes, there is a general 3-year statute of limitations on
                affirmative Government tort claims pursuant to 28 U.S.C. 2415(b).
                Sec. 750.101 Claims that may be collected.
                 (a) Against responsible third parties for damage to Government
                property, or the property of non-appropriated fund activities.
                Generally, the Government does not seek payment from service members
                and Government employees for damages caused by their simple negligence
                while acting within the scope of their employment. Exceptions to this
                general policy will be made when the incident involves aggravating
                circumstances.
                [[Page 51393]]
                 (b) For money paid or reimbursed by the government for damage to a
                rental car in accordance with the Joint Travel Regulations (1 Mar
                2018), Chapter 2, para. 020209. Collection action shall be taken
                against third parties liable in tort. Collection action shall not be
                taken against Government personnel who rented the vehicle.
                 (c) Other claims. Any other claim for money or property in favor of
                the United States cognizable under the Federal Claims Collections Act
                not specifically listed in this section.
                Sec. 750.102 Assertion of claims and collection procedures.
                 (a) General. The controlling procedures for administrative
                collection of claims are established in 31 CFR part 901.
                 (b) Officials authorized to pursue claims. The Judge Advocate
                General; the Deputy Judge Advocate General; any Assistant Judge
                Advocate General; and the Director, Claims and Tort Litigation are
                authorized to pursue and collect all affirmative claims in favor of the
                United States, except in countries where another service has single
                service responsibility in accordance with DoDI 5515.08 (series).
                 (c) Dollar limitations. All of the officers listed in paragraph (b)
                of this section are authorized to compromise and terminate collection
                action on affirmative claims of $100,000.00 or less.
                 (d) Determining liability. Liability must be determined in
                accordance with the law of the place in which the damage occurred,
                including the applicable traffic laws, elements of tort, and possible
                defenses.
                 (e) Assertion of a claim. Assertion of the claim is accomplished in
                accordance with 31 CFR part 901 by mailing to the tortfeasor a ``Notice
                of Claim.'' The notice is to be mailed certified mail, return receipt
                requested, and should include the following information:
                 (1) Reference to the statutory right to collect;
                 (2) A demand for payment or restoration;
                 (3) A description of damage and estimate of repair;
                 (4) A description of the incident, including date and place; and
                 (5) The name, phone number, and office address of the claims
                personnel to contact.
                 (f) Full payment. When a responsible party or insurer tenders full
                payment or a compromise settlement on a claim, the payment should be in
                the form of a check or money order made payable to ``United States
                Treasury.'' The check or money order shall then be forwarded to the
                disbursing officer serving the collecting activity for deposit in
                accordance with the provisions of the Navy Comptroller Manual. For
                collections for damages to real property, the collection is credited to
                the account available for the repair or replacement of the real
                property at the time of recovery. For damages to personal property, the
                money is returned to the general treasury.
                 (g) Installment payments. In general, if the debtor is financially
                unable to pay the debt in one lump sum, an installment payment plan may
                be arranged. Installment payments will be required on a monthly basis
                and the size of payment must bear a reasonable relation to the size of
                the debt and the debtor's ability to pay. The installment agreements
                should specify payments of such size and frequency to liquidate the
                Government's claim in not more than 3 years. Installment payments of
                less than $50.00 per month should be accepted only if justified on the
                grounds of financial hardship or for some other reasonable cause. In
                all installment arrangements, a confession of judgment note setting out
                a repayment schedule should be executed. See 31 CFR 901.8 for specific
                procedures.
                 (h) Damage to nonappropriated-fund instrumentality (NAFI) property.
                Any amount collected for loss or damage to property of a NAFI shall be
                forwarded to the headquarters of the nonappropriated-fund activity for
                deposit with that activity. In those situations where the recovery
                involves damage to both NAFI-owned property and other Government
                property (e.g., destruction of an exchange building resulting in damage
                to both the building and the exchange-owned property inside), recovery
                for the exchange-owned property shall be forwarded to the NAFI.
                Recovery for building damage shall be deposited in accordance with
                Sec. 750.102(f).
                 (i) Damage to industrial-commercial property. When a loss or cost
                of repair has been borne by an industrial-commercial activity, payment
                shall be deposited in the Navy Industrial Fund of the activity in
                accordance with the provisions of the Navy Comptroller Manual.
                 (j) Replacement in kind or repair. The responsible party, or
                insurer, may want to repair or replace in kind damaged property. The
                commanding officer or officer in charge of the activity sustaining the
                loss is authorized to accept repair or replacement if, in his
                discretion, it is considered to be in the best interests of the United
                States.
                 (k) Release. A release of the claim shall be executed when all
                repairs have been completed to the Government's satisfaction, and/or
                when all repair bills have been paid. If repair or replacement is made,
                a notation shall be made in any investigation or claims file.
                Sec. 750.103 Waiver, compromise, and referral of claims.
                 (a) Officials authorized to compromise claims. The officers
                identified in Sec. 750.89(b) may collect the full amount on all
                claims, and may compromise, execute releases or terminate collection
                action on all claims of $20,000.00 or less. Collection action may be
                terminated for the convenience of the Government if the tortfeasor
                cannot be located, is found to be judgment-proof, has denied liability,
                or has refused to respond to repeated correspondence concerning legal
                liability involving a small claim. A termination for the convenience of
                the Government is made after it is determined that the case does not
                warrant litigation or that it is not cost-effective to pursue recovery
                efforts.
                 (b) Claims over $100,000.00. Claims in excess of $100,000.00 may
                not be compromised for less than the full amount or collection action
                terminated without approval from the DOJ.
                Subpart K--Affirmative Claims Regulations (Medical Care Recovery
                Act and Claims Asserted Pursuant to the Third Party Payers Act)
                Sec. 750.104 Scope of subpart K.
                 (a) This part describes the assertion and collection of claims for
                medical care against third parties who are legally liable for the
                injury or disease, as well as collection through insurance companies.
                 (b) The DON is entitled to recover the costs of medical care
                furnished to Navy and Marine Corps active duty personnel, retirees or
                their dependents, or any other person when appropriate, and third-party
                tort or contract liability exists for payment for medical expenses
                resulting from the injury or disease. Claims are asserted for treatment
                provided at a military treatment facility (MTF) or paid for by the DON
                at a facility that does not belong to the Federal Government.
                Sec. 750.105 Statutory authority.
                 (a) The Medical Care Recovery Act (MCRA), 42 U.S.C. 2651-2653, as
                amended by the National Defense Authorization Act for Fiscal Year 1997,
                Public Law 104-201, 10 U.S.C. 1075, 110 Stat. 2422, authorizes the
                Government to recover the reasonable value of treatment provided to an
                eligible beneficiary from any third party who is legally liable for the
                injury or disease.
                [[Page 51394]]
                 (b) The Third Party Payers Act (TPPA), 10 U.S.C. 1095 and 10 U.S.C.
                1095b, allows for the collection of the costs of medical care to
                eligible beneficiaries from a third party, such as an insurance
                company.
                 (c) 10 U.S.C. 1079a (CHAMPUS: Treatment of refunds and other
                amounts collected) authorizes the recovery of medical care costs
                expended to eligible beneficiaries.
                Sec. 750.106 Responsibility.
                 Responsibility for investigating, asserting, and collecting DON
                MCRA/TPPA claims or, if required, properly forwarding claims to other
                Federal departments or agencies rests with Claims and Tort Litigation
                Division's Medical Care Recovery Units (MCRUs) located in Norfolk, VA;
                San Diego, CA; and Pensacola, FL, and Regional Legal Service Office
                Europe, Africa, and Southwest Asia (RLSO EURAFSWA) for MCRA/TPPA claims
                arising in their area of responsibility. All other claims arising
                overseas and outside the RLSO EURAFSWA will be asserted by either MCRU
                Norfolk or MCRU San Diego depending upon the country of origin.
                Sec. 750.107 Claims asserted.
                 (a) The MCRA creates an independent cause of action for the United
                States and the Government can administratively assert and litigate MCRA
                claims in its own name and for its own benefit. Procedural defenses,
                such as a failure of the injured party (IP) to properly file and/or
                serve a complaint on the third party, that may prevent the IP from
                recovering damages, do not prevent the United States from pursuing its
                own action to recover the value of medical treatment provided to the
                IP. In creating an independent right for the Government, the MCRA
                prevents a release given by the IP to a third party from affecting the
                Government's claim.
                 (b) When recovery under the MCRA is not possible because no third-
                party tort liability exists, the TPPA provides the Government an
                alternate means for recovery. Under the TPPA, claims are asserted by
                the United States as a third party beneficiary of an insurance contract
                of the IP. This includes but is not limited to:
                 (1) Medical Payments Coverage in an automobile or homeowner's
                policy;
                 (2) Uninsured/Underinsured Coverage in an automobile policy;
                 (3) No-fault coverage in an automobile policy; and
                 (4) On-the-job injury compensable under a worker's employment
                contract at the job.
                 (c) Determination of Amount Asserted.
                 (1) MTF costs. The costs of care provided by the MTF are based on
                Diagnostic Related Group (DRG) rates or a Relative Value Unit (RVU).
                Rates are established by the Office of Management and Budget (OMB) and/
                or the DOD and published annually in the Federal Register. The MCRU
                must ensure all MTF bills include only expenses related to the injury
                and include all charges for care provided by or paid for by the MTF.
                 (2) Defense Health Agency (DHA) costs. The costs of care provided
                by DHA are the actual amount that DHA paid even if this amount exceeds
                the amount that the civilian hospital billed DHA.
                 (d) The DON will not assert claims against the following:
                 (1) Any department, agency or instrumentality of the United States,
                including self-insured NAF activities but not private associations
                (e.g., flying clubs or equestrian clubs);
                 (2) Against a service member, a dependent family member of a
                service member, or an employee of the United States who is injured as a
                result of his/her own willful or negligent acts or the willful or
                negligent acts of others (the United States does assert claims,
                however, against insurance policies that cover the IP);
                 (3) The employer of a merchant seaman who receives medical care in
                a Federal facility pursuant to 42 U.S.C. 249; and
                 (4) For care provided to a veteran by the VA when the care is for a
                service-connected disability. The United States will, however, claim
                for the reasonable value of care provided a member before transfer to a
                VA hospital or in those instances where TRICARE pays a VA hospital
                directly.
                Sec. 750.108 Assertion of claims.
                 (a) The MCRUs will promptly assert claims by mailing a notice of
                claim or demand for payment to identified third-party tortfeasors and/
                or their insurers or to the insurer for any third party beneficiary
                coverage. The notice of claim or demand will outline the facts and cite
                the applicable Federal statutes.
                 (b) The MCRU will attempt to coordinate collection of the claim
                with any action brought by the IP.
                 (1) When the IP is represented by counsel, the MCRU will request to
                have the IP's attorney agree in writing to protect the Government's
                interests.
                 (2) 5 U.S.C. 3106 prohibits the payment of a fee for assertion or
                collection of the Government's claim. As such, attorney's fees and
                costs will not be paid by the Government or computed on the basis of
                the Government's portion of recovery.
                 (3) If the IP is not pursuing a claim or has expressly refused to
                include the Government's claim, the MCRU will pursue independent
                collection.
                 (c) Waiver or compromise of the claim may be appropriate when the
                IP, his attorney, or a lien resolution group files a written request
                and it is determined that collection of the full amount of the claim
                would result in undue hardship to the IP.
                 (1) In assessing undue hardship, the following factors shall be
                considered: Permanent disability or disfigurement; lost earning
                capacity; out-of-pocket expenses; financial status; amount of
                settlement or award from a third-party tortfeasor or contract insurer;
                and any other factors that objectively indicate that fairness requires
                waiver.
                 (2) Only the Department of Justice may authorize the compromise or
                waiver of a MCRA/TPPA claim in excess of $300,000.00. The Director and
                the Head, Affirmative and Personnel Claims Branch, Claims and Tort
                Litigation (OJAG Code 15) may authorize the compromise or waiver of a
                MCRA/TPPA claim up to $300,000.00. The Director and the Head,
                Affirmative and Personnel Claims Branch, may further delegate authority
                to personnel in the MCRUs.
                D.J. Antenucci,
                Commander, Judge Advocate General's Corps, U.S. Navy, Federal Register
                Liaison Officer.
                [FR Doc. 2020-15408 Filed 8-19-20; 8:45 am]
                BILLING CODE 3810-FF-P
                

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