Editorial Note on Part 842
Editorial Note: Nomenclature changes to part 842 appear at 81 FR 83688, Nov. 22, 2016.

§ 842.40 Claims not payable. ( a ) Claims covered by the Federal Tort Claims Act (FTCA), Foreign Claims Act (FCA), International Agreements Claims Act (IACA), 10 U.S.C. 2734a and 2734b, Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 9801-9804, 9806, National Guard Claims Act (NGCA), 32 U.S.C. 715, or covered under the Military Personnel and Civilian Employees' Claims Act (MPCECA), 31 U.S.C. 3701, 3721. ( 1 ) MCA claims arising from noncombat activities in the U.S. are not covered by the FTCA because more elements are needed to state an FTCA claim than are needed to state a claim under the MCA for noncombat activities. All FTCA claims are based on elements of traditional tort liability (*i.e.,* duty, breach, causation, and damages); that is, they are fault based. Noncombat activity claims under the MCA are based solely on causation and damages. Because MCA claims for noncombat activities are not fault based, they are not covered by the FTCA.
( 2 ) Claims for incident-to-service damage to vehicles caused by the negligence of a member or employee of the armed forces acting in the scope of employment are paid under the MCA, instead of the Military Personnel and Civilian Employees' Claims Act.
( b ) Arises with respect to the assessment or collection of any customs duty, or the detention of any goods or merchandise by any U.S. officer of customs or excise, or any other U.S. law enforcement officer. Note: This includes loss or damage to property detained by members of the Security Forces or Office of Special Investigation (OSI).
( c ) Is cognizable under U.S. admiralty and maritime law, to include: ( 1 ) The Suits in Admiralty Act, 46 U.S.C. 30901 and following.
( 2 ) The Death on the High Seas Act, 46 U.S.C. 30301 and following.
( 3 ) The Public Vessels Act, 46 U.S.C. 31101 and following.
( 4 ) Exception: Claims arising from noncombat activities may be paid under the MCA, even if they are also cognizable under paragraphs (c)(1) through (3) of this section.
( d ) Arises out of assault, battery, false imprisonment, false arrest, malicious prosecution, or abuse of process. Exception: Unless such actions were committed by an investigative or law enforcement officer of the U.S. who is empowered by law to conduct searches, seize evidence, or make arrests for violations of federal law.
( e ) Arises out of libel, slander, misrepresentation, or deceit.
( f ) Arises out of an interference with contract rights.
( g ) Arises out of the combat activities of U.S. military forces.
( h ) Is for the personal injury or death of a member of the Armed Forces of the U.S. incident to the member's service.
( i ) Is for the personal injury or death of any person for workplace injuries covered by the Federal Employees' Compensation Act, 5 U.S.C. 8101, and following.
( j ) Is for the personal injury or death of any employee of the US, including nonappropriated fund employees, for workplace injuries covered by the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901, and following.
( k ) Is for a taking of property, *e.g.,* by technical trespass or over flight of aircraft.
( l ) Is for patent or copyright infringement.
( m ) Results wholly from the negligent or wrongful act of the claimant.
( n ) Is for the reimbursement of medical, hospital, or burial expenses furnished at the expense of the US, either directly or through contractual payments.
( o ) Arises from contractual transactions, express or implied (including rental agreements, sales agreements, leases, and easements), that: ( 1 ) Are payable or enforceable under oral or written contracts; or
( 2 ) Arise out of an irregular procurement or implied contract.
( p ) Is for the personal injury or death of military or civilian personnel of a foreign government incident to their service.
( q ) Is based on an act or omission of an employee of the government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid. Do not deny claims solely on this exception without the prior approval of USAF/JACC. Claims under the noncombat activities provision of this subpart may be paid even if this paragraph (q) applies. Is based on the exercise or performance of, or the failure to exercise or perform, a discretionary function or duty on the part of a federal agency or a Federal Government employee, whether or not the discretion involved is abused. Do not deny claims solely on this exception without the prior approval of USAF/JACC. Exception: Claims under the noncombat activities provision may be paid even if this paragraph (q) applies.
( r ) Is not in the best interests of the US, is contrary to public policy, or is otherwise contrary to the basic intent of the MCA. Examples include, but are not limited to, when a claimant's criminal conduct or failure to comply with a nonpunitive regulation is a proximate cause of the loss. Prior approval must be obtained from USAF/JACC before denying claims solely on this exception.
( s ) Arises out of an act or omission of any employee of the government in administering the provisions of the Trading With the Enemy Act, 50 U.S.C. app. 1-44.
( t ) Is for damages caused by the imposition or establishment of a quarantine by the U.S.
( u ) Arises from the fiscal operations of the Department of the Treasury or from the regulation of the monetary system.
( v ) Arises from the activities of the Tennessee Valley Authority.
( w ) Arises from the activities of a federal land bank, a federal intermediate credit bank, or a bank for cooperatives.
( x ) Is for the personal injury or death of any government contractor employee for whom benefits are available under any worker's compensation law, or under any contract or agreement providing employee benefits through insurance, local law, or custom when the U.S. pays insurance either directly or as part of the consideration under the contract. Only USAF/JACC may act on these claims.
( y ) Is for damage, injury or death from or by flood or flood waters at any place.
( z ) Is for damage to property or other losses of a state, commonwealth, territory, or the District of Columbia caused by Air National Guard personnel engaged in training or duty under 32 U.S.C. 316, 502, 503, 504, or 505 who are assigned to a unit maintained by that state, commonwealth, territory, or the District of Columbia.
( aa ) Is for damage to property or for any death or personal injury arising out of activities of any federal agency or employee of the government in carrying out the provisions of the Disaster Relief Act of 1974 (42 U.S.C. 5121, *et seq.*), as amended.
( bb ) Arises from activities that present a political question.
( cc ) Arises from private, as distinguished from government, transactions.
( dd ) Is based solely on compassionate grounds.
( ee ) Is for rent, damage, or other expenses or payments involving the regular acquisition, use, possession, or disposition of real property or interests therein by and for the U.S.
( ff ) Is presented by a national, or a corporation controlled by a national, of a country at war or engaged in armed conflict with the U.S., or any country allied with such enemy country unless the appropriate settlement authority determines that the claimant is, and at the time of the incident was, friendly to the U.S. A prisoner of war or an interned enemy alien is not excluded as to a claim for damage, loss, or destruction of personal property in the custody of the U.S. otherwise payable. Forward claims considered not payable under this paragraph (ff), with recommendations for disposition, to USAF/JACC.
( gg ) Arises out of the loss, miscarriage, or negligent transmission of letters or postal matter by the U.S. Postal Service or its agents or employees.
( hh ) Is for damage to or loss of bailed property when the bailor specifically assumes such risk.
( ii ) Is for property damage, personal injury, or death occurring in a foreign country to an inhabitant of a foreign country.
( jj ) Is for interest incurred prior to the payment of a claim.
( kk ) Arises out of matters which are in litigation against the U.S.
( ll ) Is for attorney fees or costs in connection with pursuing an administrative or judicial remedy against the U.S. or any of its agencies.
( mm ) Is for bail, interest or inconvenience expenses incurred in connection with the preparation and presentation of the claim.
( nn ) Is for a failure to use a duty of care to keep premises owned or under the control of the U.S. safe for use for any recreational purpose, or for a failure by the U.S. to give any warning of hazardous conditions on such premises to persons entering for a recreational purpose unless there is a willful or malicious failure to guard or warn against a dangerous condition, or unless consideration was paid to the U.S. (including a nonappropriated fund instrumentality) to use the premises.
[81 FR 83691, Nov. 22, 2016]