Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules and Regulations 2401

receive and evaluate these statements,

and provide advice and counsel

regarding matters relating to the Ethics

in Government Act of 1978 and its

implementing regulations. The duties

and responsibilities of the Designated

Agency Ethics Official and Alternates

are set forth in more detail in 5 CFR

2638.203, which is promulgated and

amended by the Office of Government

Ethics.

Dated: January 19, 1996.

Philip Lader,

Administrator.

[FR Doc. 96–1161 Filed 1–25–96; 8:45 am]

BILLING CODE 8025–01–P

13 CFR Part 114

Policies of General Application

AGENCY: Small Business Administration.

ACTION: Final rule.

SUMMARY: In response to President

Clinton’s regulatory review directive,

the Small Business Administration has

completed a page-by-page and line-byline review of its regulations. As a

result, SBA is clarifying and

streamlining its regulations, revising or

eliminating any duplicative, outdated,

inconsistent or confusing provisions.

This final rule reorganizes the entire

Part 114 covering administrative claims

under the Federal Tort Claims Act to

make it clearer and easier to use. It also

amends the Part to streamline the

review and adjustment of claims and

provide for the use of nonbinding

alternative dispute resolution in

appropriate cases.

EFFECTIVE DATE: This rule is effective

February 26, 1996.

FOR FURTHER INFORMATION CONTACT: Jeff

Lane, Office of General Counsel, at (202)

205–6879.

SUPPLEMENTARY INFORMATION: Part 114 of

chapter I, 13 CFR contains policies

governing the presentment, review and

handling of administrative claims

brought against the Federal Government

for money damages for injuries or death

arising from the negligent or wrongful

act or omission of any employee of the

Small Business Administration. The

rule reorganizes the entire Part 114 to

make it clearer and easier to use and

amends it to create a more efficient

administrative process. It eliminates

from the process the various boards of

survey that now investigate and review

claims, and gives District Counsel

authority to review and deny claims of

$5,000 or less and use nonbinding

alternative dispute resolution in

appropriate cases. (Boards of Survey

would retain all other existing

responsibilities.)

The proposed rule was published on

November 3, 1995, at 60 FR 55808. The

SBA received four comments on the

proposed rule during the thirty-day

comment period. Two comments

questioned generally the need for

revisions in the existing rule. As

indicated, SBA has revised and

reorganized the rule to streamline its

operation and make it more

understandable to employees and others

who may be affected by it. One of those

two comments supported the proposal

to eliminate the boards of survey from

the review process, but stated that

employees should not enjoy the benefits

of the attorney-client privilege. With

regard to this latter point, this final rule

makes no substantive change in the

longstanding SBA policy applying the

attorney-client privilege in cases where

Government legal representation is

authorized for employees. Finally, two

commenters suggested changes in

section 114.105 that are adopted in the

final rule. Section 114.105(b) now

makes clear that any alternative dispute

resolution mechanisms must be

nonbinding, and § 114.105(c) is clarified

to state that District Counsel have

authority to deny claims under $5,000,

but may only recommend their

approval. In addition to this

clarification in proposed section

114.105(c) in response to comments,

SBA includes in the final rule an

administrative change: the

recommendation for approval will be

made by District Counsel to the General

Counsel or designee, not to the Senior

Area Counsel.

Compliance With Executive Orders

12612, 12778, and 12866, the

Regulatory Flexibility Act (5 U.S.C. 601,

et seq.), and the Paperwork Reduction

Act (44 U.S.C. Ch. 35)

SBA certifies that this rule involves

internal administrative procedures and

is not a significant rule within the

meaning of Executive Order 12866 and

will not have a significant economic

impact on a substantial number of small

entities within the meaning of the

Regulatory Flexibility Act, 5 U.S.C. 601,

et seq. It is not likely to have an annual

economic effect of $100 million or more,

result in a major increase in costs or

prices, or have a significant adverse

effect on competition or the United

States economy.

For purposes of the Paperwork

Reduction Act, 44 U.S.C. Ch. 35, SBA

certifies that this rule contains no new

reporting or recordkeeping

requirements.

For purposes of Executive Order

12612, SBA certifies that this rule does

not have any federalism implications

warranting the preparation of a

Federalism Assessment.

For purposes of Executive Order

12778, SBA certifies that this rule is

drafted, to the extent practicable, in

accordance with the standards set forth

in Section 2 of that Order.

List of Subjects in 13 CFR Part 114

Claims.

Accordingly, pursuant to the

authority set forth in sections 5(b)(1)

and (b)(6) of the Small Business Act, 15

U.S.C. 634(b)(1) and (b)(6), 28 U.S.C.

2672, and 28 CFR 14.11 (31 FR 16616),

SBA revises part 114 of Title 13, Code

of Federal Regulations (CFR), to read as

follows:

PART 114—ADMINISTRATIVE CLAIMS

UNDER THE FEDERAL TORT CLAIMS

ACT AND REPRESENTATION AND

INDEMNIFICATION OF SBA

EMPLOYEES

Subpart A—Administrative Tort Claims

Sec.

114.100 Definitions.

114.101 What do these regulations cover?

114.102 When and where do I present a

claim?

114.103 Who may file a claim?

114.104 What evidence and information

may SBA require relating to my claim?

114.105 Who investigates and considers my

claim?

114.106 What if my claim exceeds $5,000?

114.107 What if my claim exceeds $25,000

or has other special features?

114.108 What if my claim is approved?

114.109 What if my claim is denied?

Subpart B—Representation and

Indemnification of SBA Employees

114.110 What is SBA’s policy with respect

to indemnifying and providing legal

representation to SBA employees?

114.111 Does the attorney-client privilege

apply when SBA employees are

represented by the Government?

Authority: 15 U.S.C. 634 (b)(1), (b)(6); 28

U.S.C. 2672; 28 CFR 14.11.

Subpart A—Administrative Tort Claims

§ 114.100 Definitions.

As used throughout this Part 114, date

of accrual means the date you know or

reasonably should have known of your

injury. The date of accrual will depend

on the facts of each case. Site means the

geographic location where the incident

giving rise to your claim occurred.

§ 114.101 What do these regulations

cover?

This part applies only to monetary

claims you assert under the Federal Tort

Claims Act, 28 U.S.C. 2671 et seq., for
2402 Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules and Regulations

injury to or loss of property, personal

injury, or death arising from the

negligent or wrongful act or omission of

any SBA employee acting within the

scope of his or her employment.

§ 114.102 When and where do I present a

claim?

You must present your claim within

two years of the date of accrual at the

SBA District Office nearest to the site

and within the same state as the site.

You must use an official form obtained

from SBA or give other written notice of

your claim, stating the specific amount

of your alleged damages and providing

enough information to enable SBA to

investigate your claim. Your claim will

be considered presented when SBA

receives this information.

§ 114.103 Who may file a claim?

(a) If a claim is based on factors listed

in the first column, then it may be

presented by persons listed in the

second column.

Claim factors Claim presenters

Injury to or loss of

property.

The owner of the

property, his or her

duly authorized

agent, or legal representative.

Personal injury .......... The injured person,

his or her duly authorized agent, or

legal representative.

Death ......................... The executor, administrator, or legal

representative of

the decedent’s estate, or any other

person entitled to

assert the claim

under applicable

state law.

Loss wholly compensated by an insurer with rights as

a subrogee.

The parties individually, as their interests appear, or

jointly.

(b) An agent or legal representative

may present your claim in your name,

but must sign the claim, state his or her

title or legal capacity, and include

documentation of authority to present

the claim on your behalf.

§ 114.104 What evidence and information

may SBA require relating to my claim?

(a) For a claim based on injury to or

loss of property:

(1) Proof you own the property.

(2) A specific statement of the damage

you claim with respect to each item of

property.

(3) Itemized receipts for payment for

necessary repairs or itemized written

estimates of the cost of such repairs.

(4) A statement listing date of

purchase, purchase price and salvage

value, where repair is not economical.

(5) Full information about potential

insurance coverage and any insurance

claims or payments relating to your

claim.

(6) Any other information that may be

relevant to the government’s alleged

liability or the damages you claim.

(b) For a claim based on personal

injury, including pain and suffering:

(1) A written report from your health

care provider stating the nature and

extent of your injury and treatment, the

degree of your temporary or permanent

disability, your prognosis, period of

hospitalization, and any diminished

earning capacity.

(2) A written report following a

physical, dental or mental examination

of you by a physician employed by SBA

or another Federal Agency. If you want

a copy of this report, you must request

it in writing, furnish SBA with the

written report of your health care

provider, if SBA requests it, and make

or agree to make available to SBA any

other medical reports relevant to your

claim.

(3) Itemized bills for medical, dental

and hospital expenses you have

incurred, or itemized receipts of

payment for these expenses.

(4) Your health care provider’s written

statement of the expected expenses

related to any necessary future

treatment.

(5) A statement from your employer

showing actual time lost from

employment, whether you are a full or

part-time employee, and the wages or

salary you actually lost.

(6) Documentary evidence showing

the amount of earnings you actually lost

if you are self-employed.

(7) Information about the existence of

insurance coverage and any insurance

claims or payments relating to the claim

in question.

(8) Any other information that may be

relevant to the government’s alleged

liability or the damages you claim.

(c) For a claim based on death:

(1) An authenticated death certificate

or other competent evidence showing

cause of death, date of death, and age of

the decedent.

(2) Evidence of decedent’s

employment or occupation at the time

of death, including monthly or yearly

salary or earnings, and the duration of

such employment or occupation.

(3) Full names, addresses, birth dates,

kinship, and marital status of the

decedent’s survivors, including

identification of those survivors who

were dependent upon the decedent for

support at the time of his or her death.

(4) Evidence of the support provided

by the decedent to each dependent

survivor at the time of his or her death.

(5) A summary of the decedent’s

general physical and mental condition

before death.

(6) Itemized bills or receipts for

payments for medical and burial

expenses.

(7) For pain and suffering damage

claims, a physician’s detailed statement

specifying the injuries suffered, the

duration of pain and suffering, any

drugs administered for pain, and the

decedent’s physical condition in the

interval between injury and death.

(8) Any other information that may be

relevant to the government’s alleged

liability or the damages claimed.

§ 114.105 Who investigates and considers

my claim?

(a) SBA may investigate, or ask

another Federal agency to investigate,

your claim. SBA also may request any

Federal agency to conduct a physical

examination of you and provide a report

to SBA. SBA will reimburse the Federal

agency for the costs of that examination

when authorized or required by statute

or regulation.

(b) In those cases in which SBA

investigates your claim, the SBA District

Counsel with jurisdiction over the site

will conduct an investigation and make

recommendations or a determination

with respect to your claim. The District

Counsel may negotiate with you and is

authorized to use alternative dispute

resolution mechanisms (nonbinding on

SBA) when they may promote the

prompt, fair and efficient resolution of

your claim.

(c) If your claim is for $5,000 or less,

the District Counsel may deny the

claim, or may recommend approval,

compromise, or settlement of the claim

to the General Counsel or designee, who

may take final action. The District

Counsel first must refer the claim to

SBA’s General Counsel or designee for

review if SBA should consult with the

Department of Justice before approving

the claim, as required under § 114.107.

§ 114.106 What if my claim exceeds

$5,000?

The District Counsel must review and

investigate your claim and forward it

with a report and recommendation to

the General Counsel or designee, who

may approve or deny an award,

compromise, or settlement of claims in

excess of $5,000, but not exceeding

$25,000. The General Counsel or

designee will handle claims in excess of

$25,000 as required by § 114.107.
Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules and Regulations 2403

§ 114.107 What if my claim exceeds

$25,000 or has other special features?

(a) The U.S. Attorney General or

designee must approve in writing any

award, compromise, or settlement of a

claim in excess of $25,000. For this

purpose, a principal claim and any

derivative or subrogated claim are

considered a single claim.

(b) SBA must consult with the

Department of Justice before adjusting,

determining, compromising, or settling

a claim whenever the General Counsel

or designee determines:

(1) The claim involves a new

precedent or a new point of law; or

(2) The claim involves or may involve

a question of policy; or

(3) The United States is or may be

entitled to indemnity or contribution

from a third party and SBA is unable to

adjust the third party claim; or

(4) Approval of a claim, as a practical

matter, will or may control the

disposition of a related claim in which

the amount to be paid may exceed

$25,000.

(c) SBA must consult with the

Department of Justice before adjusting,

determining, compromising, or settling

a claim whenever SBA learns that the

United States, or any of its employees,

agents, or cost-plus contractors, is

involved in litigation based on a claim

arising out of the same incident or

transaction.

(d) SBA, acting through its General

Counsel or designee, must make any

referrals to the Department of Justice for

approval or consultation by transmitting

them in writing to the Assistant

Attorney General, Civil Division.

(1) The referral must contain a short

and concise statement of the facts and

the reason for the request or referral,

copies of the relevant portions of the

claim file, and SBA’s views and

recommendations.

(2) SBA may make this referral at any

time after a claim is presented.

§ 114.108 What if my claim is approved?

SBA will notify you in writing if it

approves your claim. The District

Counsel will forward to you or your

agent or legal representative the forms

necessary to indicate satisfaction of your

claim and your acceptance of the

payment. Acceptance by you, your agent

or your legal representative, of any

award, compromise or settlement of

your claim is final and conclusive under

the Federal Tort Claims Act. It binds

you, your agent or your legal

representative, and any other person on

whose behalf or for whose benefit the

claim was presented. It also constitutes

a complete release of your claim against

the United States and its employees. If

you are represented by counsel, SBA

will designate you and your counsel as

joint payees and will deliver the check

to your counsel. Payment is contingent

upon the waiver of your claim and is

subject to the availability of

appropriated funds.

§ 114.109 What if my claim is denied?

SBA will notify you or your agent or

legal representative in writing by

certified or registered mail if it denies

your claim. You have a right to file suit

in an appropriate U.S. District Court not

later than six months after the date the

notification was mailed.

Subpart B—Representation and

Indemnification of SBA Employees

§ 114.110 What is SBA’s policy with

respect to indemnifying and providing legal

representation to SBA employees?

(a) If an SBA employee engages in

conduct, within the scope of his or her

employment, which gives rise to a

claim, and the SBA Administrator or

designee determines that any of the

following actions relating to the claim

are in SBA’s interest, SBA may:

(1) Indemnify the employee after a

verdict, judgment, or other monetary

award is rendered personally against the

employee in any civil suit in state or

federal court or any arbitration

proceeding;

(2) Settle or compromise the claim;

and/or

(3) Pay for, or request that the

Department of Justice provide, legal

representation to the employee once

personally named in such a suit.

(b) If you are an SBA employee, you

may ask SBA to settle or compromise

your claim, provide you with legal

representation, or provide you with

indemnification for a verdict, judgment

or award entered against you in a suit.

To do so, you must submit a timely,

written request to the General Counsel,

with appropriate documentation,

including copies of any pleadings,

verdict, judgment, award, or settlement

proposal. The General Counsel will

decide all requests for representation or

settlement, and will forward to the

Administrator, with the accompanying

documentation and a recommendation,

any requests for indemnification.

(c) Any payments by SBA under this

section will be contingent upon the

availability of appropriated funds.

§ 114.111 Does the attorney-client

privilege apply when SBA employees are

represented by the Government?

When attorneys employed by SBA

participate in any process in which SBA

seeks to determine whether SBA should

request the Department of Justice to

provide representation to an SBA

employee sued, subpoenaed, or charged

in his or her individual capacity, or

whether attorneys employed by SBA

should provide representational

assistance for such an employee, those

attorneys undertake a full and

traditional attorney-client relationship

with the employee with respect to the

attorney-client privilege. If

representation is authorized, SBA

attorneys who assist in the

representation of an SBA employee also

undertake a full and traditional

attorney-client relationship with the

employee with respect to the attorneyclient privilege. Unless authorized by

the employee, the attorney must not

disclose to anyone other than attorneys

also responsible for the employee’s

representation information

communicated to the attorney by the

client-employee during the course of the

attorney-client relationship. The

attorney-client privilege will continue

with respect to that information whether

or not representation is provided, and

even if the employee’s representation is

denied or discontinued.

Dated: January 19, 1996.

Philip Lader,

Administrator.

[FR Doc. 96–1160 Filed 1–25–96; 8:45 am]

BILLING CODE 8025–01–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 95–NM–16–AD; Amendment

39–9481; AD 96–01–05]

Airworthiness Directives; McDonnell

Douglas Model DC–9–10, –20, –30, –40,

and –50 Series Airplanes and C–9

(Military) Series Airplanes

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Final rule.

SUMMARY: This amendment adopts a

new airworthiness directive (AD),

applicable to all McDonnell Douglas

Model DC–9 and C–9 (military) series

airplanes, that requires replacement,

inspection, and modification of the

attach fittings of the main landing gear

(MLG). This amendment is prompted by

reports of severe structural damage and

rupture of the integral fuel tank due to

overload of the MLG caused by adverse

landing conditions. The actions

specified by this AD are intended to

minimize the possibility of primary

structural damage and rupture of the