Claims Under the Federal Tort Claims Act

AGENCY:

National Labor Relations Board.

ACTION:

Final rule.

SUMMARY:

The National Labor Relations Board (NLRB) is issuing a final rule amending its Rules and Regulations concerning administrative claims made pursuant to the Federal Tort Claims Act (FTCA). The rule reflects structural changes within the NLRB that impact the NLRB's processing of claims, the current address for submission of claims to the NLRB, the impact of a claimant's submission of an amended claim, and the effect on a claimant of the NLRB's payment of a claim.

DATES:

The effective date is June 6, 2016.

FOR FURTHER INFORMATION CONTACT:

Gary Shinners, Executive Secretary, 1015 Half Street SE., Washington, DC 20570. Telephone: (202) 273-1067.

SUPPLEMENTARY INFORMATION:

These amendments update the NLRB's regulations governing the submission and processing of administrative claims under the FTCA. Because of the scope of these amendments, the NLRB is replacing subpart D in its entirety.

The amendments include: (i) In paragraph (b), directing claims to be made to the Associate General Counsel for the Division of Legal Counsel, and directing that claims be submitted to the NLRB's current headquarters address available on its Web site; (ii) in paragraph (c), providing that a claim may be amended at any time prior to final action by the NLRB and that the NLRB shall have six months from the amendment to make a final disposition; (iii) in paragraph (d), providing that the Associate General Counsel for the Division of Legal Counsel has authority to determine submitted claims; (iv) in paragraph (e), omitting that legal review of certain claims is to be performed by the General Counsel or his or her designee; (v) in paragraph (f), providing that awards up to $2,500 will be paid by the Chief Financial Officer; and (vi) in paragraph (g), providing that acceptance of payment constitutes a release of claims against the United States, the NLRB, and any employee whose act or omission gave rise to the claim.

These amendments are being made primarily as a result of the NLRB's restructuring in 2013 to create a new Division of Legal Counsel (78 FR 44981 (July 25, 2013)). Claims previously were directed to and determined by the NLRB's Director of Administration, and as a matter of practice, claims filed in the regions were forwarded to headquarters for processing by Administration. As a result of the 2013 reorganization of NLRB functions, the Division of Legal Counsel now handles claims under the FTCA, including determining the claims, and the final rule reflects this change in paragraphs (b) and (d). Paragraph (b) also reflects that claims should be submitted to the NLRB's current headquarters address, available on its Web site; the address designated in the current regulations is outdated.

Similarly, financial functions, including payment of FTCA awards, were formerly conducted within the Division of Administration. In 2012, an Office of the Chief Financial Officer was created, with the Chief Financial Officer (CFO) jointly reporting to the General Counsel and the Chairman of the Board (77 FR 43127 (July 23, 2012)). Accordingly, the final rule reflects in paragraph (f) that payments on FTCA administrative claims under $2,500 are made by the CFO, rather than by the Division of Administration. Payments over that amount continue to be handled in accordance with 28 CFR 14.10.

Paragraph (c) is a new provision for the amendment of claims. It permits amendment at any time prior to the NLRB's determination of a claim, and it provides that an amendment restarts the six-month deadline for responding to the claim. It also provides that the six-month time period prior to which a claimant may not bring a lawsuit against an agency (28 U.S.C. 2675(a)) begins to run at the time of the amendment. While the NLRB has received amendments of claims, its regulations have not previously provided for their treatment.

The elimination of review by “the General Counsel or designee” for claims above $5,000 in paragraph (e) conforms the proposal with 28 CFR 14.5, which applies to FTCA administrative claims government-wide. That regulation provides that awards in excess of $5,000 may be made by the head of an agency or his designee “only after review by a legal officer of the agency.” Accordingly, this regulation does not require legal review specifically by the General Counsel or a designee. Consistent with the NLRB restructuring, the Division of Legal Counsel will provide the legal review.

Finally, paragraph (g) sets forth that acceptance of payment constitutes a release of claims against the United States, the NLRB, and any employee whose act or omission gave rise to the claim. This is consistent with 28 U.S.C. 2672 and is included as a new provision to make the consequences of accepting payment clear to any claimants submitting claims to the NLRB.

Accordingly, consistent with the foregoing, the NLRB is amending 29 CFR part 100, subpart D to revise its procedures governing the submission and processing of administrative claims under the FTCA.

This action relates solely to agency organization, management, or personnel matters and will not impose any additional paperwork, reporting, or other costs, burdens, or responsibilities on claimants under the FTCA. Accordingly, this action is not subject to the advance notice and comment provisions of the Administrative Procedure Act (5 U.S.C. 553) or the requirements of Executive Order 12866, the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801).

List of Subjects in 29 CFR Part 100

• Administrative regulations
• Claims under the Federal Tort Claims Act
• Cooperation in audits and investigations
• Employee personal property loss claims
• Employee responsibilities and conduct
• Government employees
• Nondiscrimination on the basis of handicap in NLRB programs

For the reasons set forth above, the NLRB amends 29 CFR part 100, subpart D as follows:

PART 100—ADMINISTRATIVE REGULATIONS

1. The authority citation for part 100 continues to read in part as follows:

Authority: Section 6, National Labor Relations Act, as amended (29 U.S.C. 141, 156).

Subpart D—Claims Under the Federal Tort Claims Act

2. Revise § 100.401 to read as follows: