[Federal Register Volume 77, Number 210 (Tuesday, October 30, 2012)]
[Rules and Regulations]
[Pages 65631-65639]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25786]


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DEPARTMENT OF TRANSPORTATION

Maritime Administration

46 CFR Part 327

[Docket No. MARAD 2012-0005]
RIN 2133-AB79


Retrospective Review Under E.O. 13563: Seamen's Claims; Admiralty 
Extension Act Claims; and Admiralty Claims

AGENCY: Maritime Administration, Department of Transportation.

ACTION: Final rule.

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SUMMARY: In accordance with Executive Order 13563, ``Improving 
Regulation and Regulatory Review,'' the Maritime Administration (MarAd) 
solicited public comment concerning clarification of its regulations 
pertaining to seamen's claims, administrative action taken against 
MarAd, and litigation pertaining to such matters. No comments were 
received as a result of the agency's solicitation. By this rulemaking, 
MarAd is updating and modernizing the existing regulations and adopting 
a procedural process to more effectively address claims arising under 
the Suits in Admiralty Act, the Admiralty Extension Act and the 
Clarification Act. The existing regulations implement the Clarification 
Act. The newly added regulations implement a process to resolve 
administrative claims arising under the Admiralty Extension Act, and 
both the Suits in Admiralty Act and the Public Vessels Act, 
respectively.

DATES: This rule is effective November 29, 2012.

FOR FURTHER INFORMATION CONTACT: You may contact Jay Gordon, Assistant 
Chief Counsel for Litigation and General Law, at (202) 366-5173. You 
may send mail to Mr. Gordon at Office of Chief Counsel, MAR-221, 
Maritime Administration, 1200 New Jersey Avenue SE., Washington, DC 
20590-0001. You may send electronic mail to jay.gordon@dot.gov.

SUPPLEMENTARY INFORMATION:

Background

    On January 18, 2011, President Obama issued Executive Order 13563, 
which outlined a plan to improve regulation and regulatory review (76 
FR 3821, January 21, 2011). Executive Order 13563 reaffirms and builds 
upon governing principles of contemporary regulatory review, including 
Executive Order 12866, ``Regulatory Planning and Review,'' (58 FR 
51735, October 4, 1993), by requiring Federal agencies to design cost-
effective, evidence-based

[[Page 65632]]

regulations that are compatible with economic growth, job creation, and 
competitiveness. The President's plan recognizes that these principles 
should not only guide the Federal government's approach to new 
regulations, but to existing ones as well. To that end, Executive Order 
13563 requires agencies to review existing significant rules to 
determine if they are outmoded, ineffective, insufficient, or 
excessively burdensome.
    Accordingly, the Maritime Administration identified its 
administrative claims regulations governing seaman's administrative 
actions and claim litigation for improvement consistent with the 
President's order. 46 CFR Part 327 prescribes rules and regulations 
pertaining to the filing of admiralty claims and the administrative 
allowance or disallowance (actual or presumed) of such claims, in whole 
or in part. The existing Part 327 addresses only Seamen's Claims. The 
proposed rule was published February 2, 2012 (77 FR 5217). This Final 
Rule divides Part 327 into three subparts, all of which are related to 
admiralty claims. Subpart A addresses Seamen's Claims governed by the 
Clarification Act, 50 U.S.C. 1291(a). Subpart B addresses claims filed 
under the Admiralty Extension Act, 46 U.S.C. 30101, a statutory 
provision which extends the admiralty and maritime jurisdiction of the 
United States to cases of injury or damage to a person or property 
caused by a vessel on navigable waters, even though the injury or 
damage is done or consummated on land. Subpart C establishes a 
procedure for filing administrative claims for all admiralty claims not 
covered by Subparts A or B, or the Contracts Disputes Act (41 U.S.C. 
601 et seq.).
    The filing of proper administrative claims under Subparts A and B 
must take place before filing suit against the United States. For 
example, under the Clarification Act, before suit can be filed against 
the United States, there must be a denial of an administrative claim 
filed by officers and members of crews injured aboard MarAd vessels. 
Before suit can be filed against the United States under the Admiralty 
Extension Act, there must be an administrative denial of a claim filed 
under that Act or 6 months must have passed after the claim is 
presented in writing to the agency. The new Subpart C establishes an 
optional procedure whereby anyone having an admiralty claim not covered 
by either Subparts A, B or under the Contracts Disputes Act can file an 
administrative claim with MarAd.
    Subpart A of Part 327 has also been updated to include technical 
changes such as MarAd's new address at 1200 New Jersey Avenue and to 
include corrections to statutory references, some of which were made 
obsolete as the result of the codification of the Appendix to title 46 
of the United States Code. In addition to these technical changes, 
MarAd modernizes the regulation by allowing the use of pictures and 
video recordings as evidence in administrative actions and litigation. 
The current regulations do not provide for the use of such evidence. 
The new regulation also requires that the seamen filing claims sign the 
claims and verify that they are correct.
    Subpart B sets out specific details concerning compliance with the 
administrative claim requirement of the Admiralty Extension Act, 46 
U.S.C. 30301(c)(2), with respect to filing suit against the United 
States. Under this provision, no civil suit can be filed against the 
United States ``until the expiration of the 6-month period after the 
claim has been presented in writing to the agency owning or operating 
the vessel causing the injury or damage.''
    Subpart C provides a means whereby an administrative claim can be 
filed with respect to any other admiralty matters not addressed in 
Subparts A and C or in the Contracts Disputes Act (41 U.S.C. 601 et. 
seq.). This will provide a means to address administratively admiralty 
claims made by other persons or legal entities such as longshoremen and 
harbor workers, contractors, invitees injured aboard vessels, and the 
owners of damaged vessels filing claims governed by the Suits in 
Admiralty Act (46 U.S.C. 30901 et seq.) and the Public Vessels Act (46 
U.S.C.A. 31101 et seq.).

Rulemaking Analysis and Notices

Executive Orders 12866 (Regulatory Planning and Review), 13563 
(Improving Regulation and Regulatory Review) and DOT Regulatory 
Policies and Procedures

    Under E.O. 12866 (58 FR 51735, October 4, 1993), supplemented by 
E.O.13563 (76 FR 3821, January 18, 2011) and DOT policies and 
procedures, MarAd must determine whether a regulatory action is 
``significant,'' and therefore subject to OMB review and the 
requirements of the E.O. The Order defines ``significant regulatory 
action'' as one likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal government or communities. (2) Create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another Agency. (3) Materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof. (4) Raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the E.O.
    MarAd has determined that this final rule is not considered a 
significant regulatory action under section 3(f) of Executive Order 
12866 and, therefore, it was not reviewed by the Office of Management 
and Budget. This final rule will not result in an annual effect on the 
economy of $100 million or more. It also is not considered a major rule 
for purposes of Congressional review under Public Law 104-121. The rule 
is also not significant under the Regulatory Policies and Procedures of 
the Department of Transportation (44 FR 11034, February 26, 1979). The 
costs and overall economic impact of this rulemaking do not require 
further analysis.

Executive Order 13132 (Federalism)

    We analyzed this rulemaking in accordance with the principles and 
criteria contained in Executive Order 13132 (``Federalism'') and have 
determined that it does not have sufficient Federalism implications to 
warrant the preparation of a Federalism summary impact statement. This 
rule has no substantial effect on the States, or on the current 
Federal-State relationship, or on the current distribution of power and 
responsibilities among the various local officials. Nothing in this 
document preempts any State law or regulation. Therefore, MarAd did not 
consult with State and local officials because it was not necessary.

Executive Order 13175 (Consultation and Coordination With Indian Tribal 
Governments)

    MarAd does not believe that this final rule will significantly or 
uniquely affect the communities of Indian tribal governments when 
analyzed under the principles and criteria contained in Executive Order 
13175 (Consultation and Coordination With Indian Tribal Governments). 
Therefore, the funding and consultation requirements of this Executive 
Order do not apply.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on

[[Page 65633]]

Federal programs and activities do not apply to this rule.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 requires MarAd to assess 
whether this rule would have a significant economic impact on a 
substantial number of small entities and to minimize any adverse 
impact. MarAd certifies that this rule will not have a significant 
economic impact on a substantial number of small entities.

Environmental Assessment

    We have analyzed this final rule for purposes of compliance with 
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) 
and have concluded that under the categorical exclusions provision in 
section 4.05 of Maritime Administrative Order (MAO) 600-1, ``Procedures 
for Considering Environmental Impacts,'' 50 FR 11606 (March 22, 1985), 
neither the preparation of an Environmental Assessment, an 
Environmental Impact Statement, nor a Finding of No Significant Impact 
for this rulemaking is required. This rulemaking has no environmental 
impact.

Executive Order 13211 (Energy Supply, Distribution, or Use)

    MarAd has determined that the rule would not significantly affect 
energy supply, distribution, or use. Therefore, no Statement of Energy 
Effects is required.

Executive Order 13045 (Protection of Children)

    Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks, requires agencies issuing ``economically 
significant'' rules that involve an environmental health or safety risk 
that may disproportionately affect children, to include an evaluation 
of the regulation's environmental health and safety effects on 
children. As discussed previously, this rule is not economically 
significant, and it would cause no environmental or health risk that 
disproportionately affects children.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminates 
ambiguity, and reduce burden.

Executive Order 12630 (Taking of Private Property)

    This rule would not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act (15 U.S.C. 272 
note) requires Federal agencies adopting Government technical standards 
to consider whether voluntary consensus standards are available. If the 
Agency chooses to adopt its own standards in place of existing 
voluntary consensus standards, it must explain its decision in a 
separate statement to OMB. MarAd determined that there are no voluntary 
national consensus standards related to the filing of the seamen's 
claims, administrative actions and Admiralty Extension Act claims 
addressed by this regulation.

International Trade Impact Assessment

    This rule is not expected to contain standards-related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States.

Privacy Impact Assessment

    Section 522(a)(5) of the Transportation, Treasury, Independent 
Agencies, and General Government Appropriations Act, 2005 (Pub. L. 108-
447, div. H, 118 Stat. 2809 at 3268) requires the Department of 
Transportation and certain other Federal agencies to conduct a privacy 
impact assessment of each rule that will affect the privacy of 
individuals. Claims submitted under this rule will be treated the same 
as all legal claims received by MarAd. The processing and treatment of 
any claim within the scope of this rulemaking by MarAd shall comply 
with all legal, regulatory and policy requirements regarding privacy.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et 
seq.), Federal agencies must obtain approval from OMB for each 
collection of information they conduct, sponsor, or require through 
regulations. This rule provides regulatory clarification to seamen's 
claims, administrative action procedures and Admiralty Extension Claim 
procedures. This rulemaking contains no new or amended information 
collection or recordkeeping requirements that have been approved or 
require approval by the Office of Management and Budget.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 requires Agencies to 
evaluate whether an Agency action would result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $141.3 million or more (as adjusted for inflation) 
in any 1 year, and if so, to take steps to minimize these unfunded 
mandates. This rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$141.3 million or more to either State, local, or tribal governments, 
in the aggregate, or to the private sector, and is the least burdensome 
alternative that achieves the objectives of the rule.

Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN number contained in the heading 
of this document can be used to cross-reference this action with the 
Unified Agenda.

List of Subjects in 46 CFR Part 327

    Administrative practice and procedures, Claims, Seaman.


0
Accordingly, the Maritime Administration revises part 327 of 46 CFR, to 
read as follows:

PART 327--SEAMEN'S CLAIMS; ADMINISTRATIVE ACTION AND LITIGATION

Subpart A--Clarification Act Claims: Seamen's Claims; Administrative 
Action and Litigation
Sec.
327.1 Purpose.
327.2 Statutory provisions.
327.3 Required claims submission.
327.4 Claim requirements.
327.5 Filing claims.
327.6 Notice of allowance or disallowance.
327.7 Administrative disallowance presumption.
327.8 Court action.
Subpart B--Admiralty Extension Act Claims; Administrative Action and 
Litigation
327.20 Admiralty Jurisdiction Extension Claims: Required claims.
327.21 Definitions.
327.22 Who may present claims.
327.23 Insurance and other subrogated claims.
327.24 Actions by claimant.
327.25 Contents of a claim.
327.26 Evidence supporting a claim.
327.27 Proof of amount claimed for personal injury.
327. 28 Proof of amount claimed for loss of, or damage to, property.
327.29 Effect of other payments to claimant.

[[Page 65634]]

327.30 Statute of limitations for AEA and claim requirements.
327.31 Statute of limitations not tolled by administrative 
consideration of claims.
327.32 Notice of claim acceptance or denial.
327.33 Claim denial presumption.
327.34 Court action.
Subpart C--Other Admiralty Claims
327.40 Other Admiralty claims.
327.41 Definitions.
327.42 Who may present claims.
327.43 Insurance and other subrogated claims.
327.44 Actions by claimant.
327.45 Contents of a claim.
327.46 Evidence supporting a claim.
327.47 Proof of amount claimed for personal injury.
327. 48 Proof of amount claimed for loss of, or damage to, property.
327.49 Effect of other payments to claimant.
327.50 Statute of limitations for other admiralty claims and claim 
requirements.
327.51 Statute of limitations not tolled by administrative 
consideration of claims.
327.52 Notice of claim acceptance or denial.

    Authority: 46 U.S.C. Chapters 301-309.

Subpart A--Clarification Act Claims: Seamen's Claims; 
Administrative Action and Litigation.


Sec.  327.1  Purpose.

    This part prescribes rules and regulations pertaining to the filing 
of claims designated in Sec.  327.3 and the administrative allowance, 
or disallowance (actual and presumed), of such claims, in whole or in 
part, filed by officers and members of crews (hereafter referred to as 
``seamen'') employed on vessels as employees of the United States 
through the National Shipping Authority (NSA), Maritime Administration 
(MarAd), or successor.


Sec.  327.2  Statutory provisions.

    These regulations are enacted to implement the administrative 
claims procedures set forth in 50 U.S.C. App. 1291(a).


Sec.  327.3  Required claims submission.

    All claims specified in 50 U.S.C. App. 1291(a) shall be submitted 
for administrative consideration, as provided in Sec. Sec.  327.4 and 
327.5, prior to institution of court action thereon.


Sec.  327.4  Claim requirements.

    (a) Form. The claim may be in any form and shall be
    (1) In writing,
    (2) Designated as a claim,
    (3) Disclose that the object sought is the administrative allowance 
of the claim,
    (4) Comply with the requirements of this part, and
    (5) Filed as provided in Sec.  327.5.
    (6) The claim must be signed or attested to by the claimant. The 
statements made in the claim should be made to the best of the 
knowledge of the claimant and are subject to the provision of 18 U.S.C. 
287 and 1001 and all other penalty provisions for making false, 
fictitious, or fraudulent claims, statements or entries, or falsifying, 
concealing, or covering up a material fact in any matter within the 
jurisdiction of any department or agency of the United States. Any 
lawsuits filed contrary to the provisions of section 5 of the Suits in 
Admiralty Act, as amended by Public Law 877, 81st Congress (64 Stat. 
1112; 46 U.S.C. 30901 et seq.), shall not be in compliance with the 
requirements of this part.
    (b) Contents. Each claim shall include the following information:
    (1) With respect to the seaman:
    (i) Name;
    (ii) Mailing address;
    (iii) Date of birth;
    (iv) Legal residence address;
    (v) Place of birth; and
    (vi) Merchant mariner license or document number and social 
security number.
    (2) With respect to the basis for the claim:
    (i) Name of vessel on which the seaman was serving when the 
incident occurred that is the basis for the claim;
    (ii) Place where the incident occurred;
    (iii) Time of incident--year, month and day, and the precise time 
of day, to the minute, where possible;
    (iv) Narrative of the facts and circumstances surrounding the 
incident, including a statement explaining why the United States is 
liable for this claim;
    (v) Pictures, video recordings and other physical evidence related 
to the case and
    (vi) The names, addresses, and telephone numbers, if available, of 
others who can supply factual information about the incident and its 
consequences.
    (3) A sum certain dollar amount of claim, which includes a total 
for all amounts sought. The claim shall explain the amounts sought for:
    (i) Past loss of earnings or earning capacity;
    (ii) Future loss of earnings or earning capacity;
    (iii) Medical expenses paid out of pocket;
    (iv) Pain and suffering; and
    (v) Any other loss arising out of the incident (describe).
    (4) All medical and clinical records of physicians and hospitals 
related to a seaman's claim for injury, illness, or death shall be 
attached. If the claimant does not have a copy of each record, the 
claimant shall identify every physician and hospital having records 
relating to the seaman and shall provide written authorization for 
MarAd to obtain all such records. The claim shall also include the 
number of days the seaman worked as a merchant mariner and the earnings 
received for the current calendar year, as well as for the two 
preceding calendar years.
    (5) If the claim does not involve a seaman's death, the following 
information shall be submitted with the claim:
    (i) Date the seaman signed a reemployment register as a merchant 
mariner;
    (ii) Copy of the medical fit-for-duty certificate issued to the 
seaman;
    (iii) Date and details of next employment as a seaman; and
    (iv) Date and details of next employment as other than a seaman.
    (6) If the claim is for other than personal injury, illness or 
death, the claim shall provide all supporting information concerning 
the nature and dollar amount of the loss.


Sec.  327.5  Filing claims.

    (a) Claims may be filed by or on behalf of seamen or their 
surviving dependents or beneficiaries, or by their legal 
representatives. Claims shall be filed either by personal delivery or 
by registered mail.
    (b) The claimant shall send the claim directly to the Chief, 
Division of Marine Insurance, Maritime Administration, Department of 
Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590. A copy 
of each claim shall be filed with the Ship Manager or General Agent of 
the vessel with respect to which such claim arose.


Sec.  327.6  Notice of allowance or disallowance.

    MarAd shall give prompt notice in writing of the allowance or 
disallowance of each claim, in whole or in part, by mail to the last 
known address of, or by personal delivery to, the claimant or the 
claimant's legal representative. In the case of administrative 
disallowance, in whole or in part, such notice shall contain a brief 
statement of the reason for such disallowance.


Sec.  327.7  Administrative disallowance presumption.

    If MarAd fails to give written notice of allowance or disallowance 
of a claim in accordance with Sec.  327.6 within sixty (60) calendar 
days following the date of the receipt of such claim by the proper 
person designated in Sec.  327.5, such claim

[[Page 65635]]

shall be presumed to have been ``administratively disallowed,'' within 
the meaning in section 1(a) of 50 U.S.C. App. 1291(a).


Sec.  327.8  Court action.

    (a) No seamen, having a claim specified in subsections (2) and (3) 
of section 1(a) of 50 U.S.C. App. 1291(a), their surviving dependents 
and beneficiaries, or their legal representatives shall institute a 
court action for the enforcement of such claim unless such claim shall 
have been prepared and filed in accordance with Sec. Sec.  327.4 and 
327.5 and shall have been administratively disallowed in accordance 
with Sec.  327.6 or 327.7.
    (b) This part prescribes rules and regulations pertaining to the 
filing of claims designated in Sec.  327.3 and the administrative 
allowance, or disallowance (actual and presumed), of such claims, in 
whole or in part, filed by officers and members of crews (hereafter 
referred to as ``seamen'') employed on vessels through the National 
Shipping Authority (NSA), Maritime Administration (MarAd), or successor 
organization.

Subpart B--Admiralty Extension Act Claims; Administrative Action 
and Litigation


Sec.  327.20  Admiralty Jurisdiction Extension Claims: Required claims.

    (a) Pursuant to 46 U.S.C. 30101(c) of the Admiralty Extension Act 
(AEA), administrative claims involving the extension of admiralty 
jurisdiction to cases of damage or injury on land caused by a Maritime 
Administration vessel on navigable waters must be presented in writing 
to the Maritime Administration in accordance with Sec. Sec.  327.20 
through 327.34 prior to institution of a court action thereon.
    (b) A civil action against the United States for injury or damage 
done or consummated on land by a vessel on navigable waters may not be 
brought until the earlier occurrence of either the denial of the claim 
by the Maritime Administration or the presumptive denial of the claim 
which arises 6 months after the claim has been presented in writing to 
the Maritime Administration. 46 U.S.C. 30101(c)(2). Note that the 6 
month period of review will not begin until a valid claim is filed 
pursuant to Sec.  327.25.
    (c) Proceedings against the United States pursuant to the 
requirements of the AEA and these regulations is the exclusive remedy 
available against the United States of America, acting by and through 
the Maritime Administration, with respect to such injuries and damages.


Sec.  327.21  Definitions.

    The following definitions apply to this subpart:
    (a) Accrual date. The day on which the alleged wrongful act or 
omission results in injury or damage for which a claim is made.
    (b) Claim. A written notification of an incident, signed by the 
claimant, describing the incident and explaining why the United States 
is liable. The claim shall be accompanied by a demand for the payment 
of a sum certain of money, with a statement as to how that sum certain 
was calculated and all documents supporting the amount claimed. Where 
damages for medical injuries are made, the doctor's statement relating 
the injuries to the accident should be attached as well as medical 
release forms for each treating physician, hospital, and medical care 
provider.


Sec.  327.22  Who may present claims.

    (a) General rules. (1) A claim for property loss or damage may be 
presented by anyone having an interest in the property, including an 
insurer or other subrogee.
    (2) A claim for personal injury may be presented by the person 
injured.
    (3) A claim based on death may be presented by the executor or 
administrator of the decedent's estate, or any other person legally 
entitled to assert such a claim under local law. The claimant's status 
must be stated in the claim.
    (4) A claim for medical, hospital, or burial expenses may be 
presented by any person who by reason of family relationship has, in 
fact, incurred the expenses.
    (b) A joint claim must be presented in the names of and signed by, 
the joint claimants, and the settlement will be made payable to the 
joint claimants.
    (c) A claim may be presented by a duly authorized agent, legal 
representative or survivor, if it is presented in the name of the 
claimant. If the claim is not signed by the claimant, the agent, legal 
representative, or survivor shall indicate their title or legal 
capacity and provide evidence of their authority to present the claim.
    (d) Where the same claimant has a claim for damage to or loss of 
property and a claim for personal injury or a claim based on death 
arising out of the same incident, they must be combined in one claim.


Sec.  327.23  Insurance and other subrogated claims.

    (a) The claims of an insured (subrogor) and an insurer (subrogee) 
for damages arising out of the same incident constitute a single claim.
    (b) An insured (subrogor) and an insurer (subrogee) may file a 
claim jointly or separately. If the insurer has fully reimbursed the 
insured, payment will only be made to the insurer. If separate claims 
are filed, the settlement will be made payable to each claimant to the 
extent of that claimant's undisputed interest. If joint claims are 
filed, the settlement will be sent to the insurer.
    (c) Each claimant shall include with a claim, a written disclosure 
concerning insurance coverage including:
    (1) The names and addresses of all insurers;
    (2) The kind and amount of insurance;
    (3) The policy number;
    (4) Whether a claim has been or will be presented to an insurer, 
and, if so, the amount of that claim; and whether the insurer has paid 
the claim in whole or in part, or has indicated payment will be made.
    (d) Each subrogee shall substantiate an interest or right to file a 
claim by appropriate documentary evidence and shall support the claim 
as to liability and measure of damages in the same manner as required 
of any other claimant. Documentary evidence of payment to a subrogor 
does not constitute evidence of liability of the United States or 
conclusive evidence of the amount of damages. The Maritime 
Administration makes an independent determination on the issues of fact 
and law based upon the evidence of record.


Sec.  327.24  Actions by claimant.

    (a) Form of claim. The claim must meet the requirements of this 
section.
    (b) Presentation. The claim must be presented in writing to the 
Office of Chief Counsel, Attn. Chief Counsel, Maritime Administration, 
Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC 
20590-0001.


Sec.  327.25  Contents of a claim.

    (a) A valid claim will contain the following:
    (1) Identification of the Maritime Administration as the agency 
whose act or omission gave rise to the claim;
    (2) The full name and mailing address of the claimant. If this 
mailing address is not claimant's residence, the claimant shall also 
include residence address;
    (3) The date, time, and place of the incident giving rise to the 
claim;
    (4) The amount claimed, in a sum certain, supported by independent

[[Page 65636]]

evidence of property damage or loss, personal injury, or death, as 
applicable together with supporting medical records and a HIPPA 
compliant medical waiver for each treating physician or hospital;
    (5) A detailed description of the incident giving rise to the claim 
and the factual basis upon which it is claimed the Maritime 
Administration is liable for the claim;
    (6) A description of any property damage or loss, including the 
identity of the owner, if other than the claimant, as applicable;
    (7) The nature and extent of the injury, as applicable;
    (8) The full name, title, if any, and address of any witness to the 
incident and a brief statement of the witness' knowledge of the 
incident;
    (9) A description of any insurance carried by the claimant or owner 
of the property and the status of any insurance claim arising from the 
incident; and
    (10) An agreement by the claimant to accept the total amount 
claimed in full satisfaction and final settlement of the claim, lien or 
subrogation claim on the claimed amount, or any assignment of the 
claim.
    (b) A claimant or duly authorized agent or legal representative 
must sign in ink a claim and any amendment to that claim. The claim 
shall include a statement that the information provided is true and 
correct to the best of the claimant's knowledge, information, and 
belief. If the person's signature does not include the first name, 
middle initial, if any, and surname, that information must be included 
in the claim. A married woman must sign her claim in her given name, 
e.g., ``Mary A. Doe,'' rather than ``Mrs. John Doe.''


Sec.  327.26  Evidence supporting a claim.

    (a) The claimant shall present any evidence in the claimant's 
possession that supports the claim. This evidence shall include, if 
available, statements of witnesses, accident or casualty reports, 
photographs and drawings.
    (b) Notwithstanding anything in the regulations in this subpart, 
the claimant shall provide such additional reasonable documents and 
evidence as requested by the Maritime Administration with respect to 
the claim. Failure to respond to reasonable requests for additional 
information and documentation can result in a determination that a 
valid claim has not been submitted.


Sec.  327.27  Proof of amount claimed for personal injury.

    The following evidence must be presented when appropriate in 
claims:
    (a) Itemized medical, hospital, and burial bills.
    (b) A written report by the attending physician including:
    (1) The nature and extent of the injury and the treatment;
    (2) The necessity and reasonableness of the various medical 
expenses incurred;
    (3) Duration of time injuries prevented or limited employment;
    (4) Past, present, and future limitations on employment;
    (5) Duration and extent of pain and suffering and of any disability 
or physical disfigurement;
    (6) A current prognosis;
    (7) Any anticipated medical expenses;
    (8) Any past medical history of the claimant relevant to the 
particular injury alleged; and
    (9) If required by the Maritime Administration, an examination by 
an independent medical facility or physician to provide independent 
medical evidence against which to evaluate the written report of the 
claimant's physician. The Maritime Administration determines the need 
for this examination, makes mutually convenient arrangements for such 
an examination, and bears the costs thereof.
    (c) All hospital records or other medical documents from either 
this injury or any relevant past injury.
    (d) If the claimant is employed, a written statement by the 
claimant's employer certifying the claimant's:
    (1) Age;
    (2) Occupation;
    (3) Hours of employment;
    (4) Hourly rate of pay or weekly salary;
    (5) Time lost from work as a result of the incident; and
    (6) Claimant's actual period of employment, full-time or part-time, 
and any effect of the injury upon such employment to support claims for 
lost earnings.
    (e) If the claimant is self-employed, written statements, or other 
evidence showing:
    (1) The amount of earnings actually lost; and
    (2) The Federal tax return if filed for the three previous years.
    (f) If the claim arises out of injuries to a person providing 
services to the claimant, statement of the cost necessarily incurred to 
replace the services to which claimant is entitled under law.


Sec.  327.28  Proof of amount claimed for loss of, or damage to, 
property.

    The following evidence must be presented when appropriate:
    (a) For each particular lost item, evidence of its value such as a 
bill of sale and a written appraisal, or two written appraisals, from 
separate disinterested dealers or brokers, market quotations, 
commercial catalogs, or other evidence of the price at which like 
property can be obtained in the community. The Maritime Administration 
may waive these requirements when circumstances warrant. The reasonable 
cost of any appraisal may be included as an element of damage if not 
deductible from any bill submitted to claimant.
    (b) For each particular damaged item which can be economically 
repaired, evidence of cost of repairs such as a receipted bill and one 
estimate, or two estimates, from separate disinterested repairmen. The 
Maritime Administration may waive these requirements when circumstances 
warrant. The reasonable cost of any estimate may be included as an 
element of damage if not deductible from any repair bill submitted to 
claimant.
    (c) For any claim for property damage which may result in payment 
in excess of $20,000.00, a survey or appraisal shall be performed as 
soon as practicable after the damage accrues, and, unless waived in 
writing, shall be performed jointly with a government representative.
    (d) If the item is so severely damaged that it cannot be 
economically repaired or used, it shall be treated as a lost item.
    (e) If a claim includes loss of earnings or use during repairs to 
the damaged property, the following must also be furnished and 
supported by competent evidence:
    (1) The date the property was damaged;
    (2) The name and location of the repair facility;
    (3) The beginning and ending dates of repairs and an explanation of 
any delay between the date of damage and the beginning date;
    (4) A complete description of all repairs performed, segregating 
any work performed for the owner's account and not attributable to the 
incident involved, and the costs thereof;
    (5) The date and place the property was returned to service after 
completion of repairs, and an explanation, if applicable, of any delay;
    (6) Whether or not a substitute for the damaged property was 
available. If a substitute was used by the claimant during the time of 
repair, an explanation of the necessity of using the substitute, how it 
was used, and for how long, and the costs involved. Any costs incurred 
that would have been similarly incurred by the claimant in using the 
damaged property must be identified;

[[Page 65637]]

    (7) Whether or not during the course of undergoing repairs the 
property would have been used, and an explanation submitted showing the 
identity of the person who offered that use, the terms of the offer, 
time of prospective service, and rate of compensation; and
    (8) If at the time of damage the property was under charter or 
hire, or was otherwise employed, or would have been employed, the 
claimant shall submit a statement of operating expenses that were, or 
would have been, incurred. This statement shall include wages and all 
bonuses which would have been paid, the value of fuel and the value of 
consumable stores, separately stated, which would have been consumed, 
and all other costs of operation which would have been incurred 
including, but not limited to, license and parking fees, personnel 
expenses, harbor fees, wharfage, dockage, shedding, stevedoring, 
towage, pilotage, inspection, tolls, lockage, anchorage and moorage, 
grain elevation, storage, and customs fees.
    (f) For each item which is lost, actual or constructive, proof of 
ownership.


Sec.  327.29  Effect of other payments to claimant.

    The total amount to which the claimant may be entitled is normally 
computed as follows:
    (a) The total amount of the loss, damage, or personal injury 
suffered for which the United States is liable, less any payment the 
claimant has received from the following sources:
    (1) The military member or civilian employee who caused the 
incident;
    (2) The military member's or civilian employee's insurer; and
    (3) Any joint tort-feasor or insurer.
    (b) No deduction is generally made for any payment the claimant has 
received by way of voluntary contributions, such as donations of 
charitable organizations.


Sec.  327.30  Statute of limitations for AEA and claim requirements.

    A civil suit must be filed within two years of the Accrual Date. No 
civil suit may be brought until the earlier occurrence of either the 
denial of a claim or the presumptive denial of the claim after 6 months 
from the date the claim was properly presented in writing to the 
Maritime Administration.


Sec.  327.31  Statute of limitations not tolled by administrative 
consideration of claims.

    The statute of limitations for filing a civil action under 46 
U.S.C. 30101(b) is not tolled by MarAd's administrative consideration 
of a claim.


Sec.  327.32  Notice of claim acceptance or denial.

    The Maritime Administration shall give prompt notice in writing of 
the acceptance or denial of each claim in whole or in part, by mail to 
the last known address of, or by personal delivery to, the claimant or 
the claimant's legal representative. In the case of denial, such notice 
shall contain a brief statement of the reason for such a denial.


Sec.  327.33  Claim denial presumption.

    If the Maritime Administration fails to give written notice of 
acceptance or denial of a claim in accordance with Sec.  327.30 within 
6 months following the date of receipt of such a claim by the proper 
person designated in Sec.  327.24(b), such claim shall be presumed to 
have been denied by the Maritime Administration.


Sec.  327.34  Court action.

    No person, surviving dependent or beneficiary, or legal 
representative, having a claim specified under 46 U.S.C. 30101(a) 
against the Maritime Administration, shall institute a court action 
against the Maritime Administration unless an administrative claim has 
previously been properly presented and filed in accordance with Sec.  
327.22, Sec.  327.23, and Sec.  327.24, and such administrative claim 
has been subsequently denied in accordance with Sec.  327.32 or Sec.  
327.33.

Subpart C--Other Admiralty Claims


Sec.  327.40  Other Admiralty claims.

    (a) Admiralty claims caused by United States owned and operated 
vessels on navigable waters or otherwise that are not covered under the 
Clarification Act (50 U.S.C. app. 1291(a)), the Admiralty Extension Act 
(46 U.S.C. 30101) or the Contracts Disputes Act (41 U.S.C. 601 et. 
seq.) may be filed with the Maritime Administration in accordance with 
Sec. Sec.  327.40 through 327.52.
    (b) A civil action against the United States for admiralty claims 
caused by United States owned and operated vessels on navigable waters 
or otherwise that are not covered under the Clarification Act (50 
U.S.C. App. 1291(a)), the Admiralty Extension Act (46 U.S.C. 30101) or 
the Contracts Disputes Act (41 U.S.C. 601 et. seq.) may be brought 
without the filing of an administrative claim. This Part III sets forth 
the optional procedure for filing such claims with the Maritime 
Administration in advance of litigation. Once litigation is filed, the 
authority to handle such claims is vested with the Justice Department, 
not the agency.
    (c) Proceeding against the United States pursuant to the 
requirements this Part III is not a requirement for filing suit against 
the United States of America, acting by and through the Maritime 
Administration, with respect to such admiralty claims.


Sec.  327.41  Definitions.

    The following definitions apply to this subpart:
    (a) Accrual date. The day on which the alleged wrongful act or 
omission results in injury or damage for which a claim is made.
    (b) Claim. A written notification of an incident, signed by the 
claimant, describing the incident and explaining why the United States 
is liable. The claim shall be accompanied by a demand for the payment 
of a sum certain of money, with a statement as to how that sum certain 
was calculated and all documents supporting the amount claimed. Where 
damages for medical injuries are made, the doctor's statement relating 
the injuries to the accident should be attached as well as medical 
release forms for each treating physician, hospital, and medical care 
provider.


Sec.  327.42  Who may present claims.

    (a) General rules. (1) A claim for property loss or damage may be 
presented by anyone having an interest in the property, including an 
insurer or other subrogee.
    (2) A claim for personal injury may be presented by the person 
injured.
    (3) A claim based on death may be presented by the executor or 
administrator of the decedent's estate, or any other person legally 
entitled to assert such a claim under local law. The claimant's status 
must be stated in the claim.
    (4) A claim for medical, hospital, or burial expenses may be 
presented by any person who by reason of family relationship has, in 
fact, incurred the expenses.
    (5) A joint claim must be presented in the names of and signed by, 
the joint claimants, and the settlement must be made payable to the 
joint claimants.
    (b) A claim may be presented by a duly authorized agent, legal 
representative or survivor, if it is presented in the name of the 
claimant. If the claim is not signed by the claimant, the agent, legal 
representative, or survivor shall indicate their title or legal 
capacity and provide evidence of their authority to present the claim.
    (c) Where the same claimant has a claim for damage to or loss of 
property and a claim for personal injury or a claim based on death 
arising out of the

[[Page 65638]]

same incident, they must be combined in one claim.


Sec.  327.43  Insurance and other subrogated claims.

    (a) The claims of an insured (subrogor) and an insurer (subrogee) 
for damages arising out of the same incident constitute a single claim.
    (b) An insured (subrogor) and an insurer (subrogee) may file a 
claim jointly or separately. If the insurer has fully reimbursed the 
insured, payment will only be made to the insurer. If separate claims 
are filed, the settlement will be made payable to each claimant to the 
extent of that claimant's undisputed interest. If joint claims are 
filed, the settlement will be sent to the insurer.
    (c) Each claimant shall include with a claim, a written disclosure 
concerning insurance coverage including:
    (1) The names and addresses of all insurers;
    (2) The kind and amount of insurance;
    (3) The policy number; and
    (4) Whether a claim has been or will be presented to an insurer, 
and, if so, the amount of that claim; and whether the insurer has paid 
the claim in whole or in part, or has indicated payment will be made.
    (d) Each subrogee shall substantiate an interest or right to file a 
claim by appropriate documentary evidence and shall support the claim 
as to liability and measure of damages in the same manner as required 
of any other claimant. Documentary evidence of payment to a subrogor 
does not constitute evidence of liability of the United States or 
conclusive evidence of the amount of damages. The Maritime 
Administration makes an independent determination on the issues of fact 
and law based upon the evidence of record.


Sec.  327.44  Actions by claimant.

    (a) Form of claim. The claim should meet the requirements of Sec.  
327.44.
    (b) Presentation. The claim must be presented in writing to the 
Office of Chief Counsel, Attn: Chief Counsel, Maritime Administration, 
Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC 
20590-0001.


Sec.  327.45  Contents of a claim.

    (a) A properly filed claim shall include the following, however, 
any of the following requirements may be waived by the Maritime 
Administration:
    (1) Identification of the Maritime Administration as the agency 
whose act or omission gave rise to the claim;
    (2) The full name and mailing address of the claimant. If this 
mailing address is not claimant's residence, the claimant shall also 
include residence address;
    (3) The date, time, and place of the incident giving rise to the 
claim;
    (4) The amount claimed, in a sum certain, supported by independent 
evidence of property damage or loss, personal injury, or death, as 
applicable together with supporting medical records and a HIPPA 
compliant medical waiver for each treating physician, hospital, or 
medical provider;
    (5) A detailed description of the incident giving rise to the claim 
and the factual basis upon which it is claimed the United States is 
liable for the claim;
    (6) A description of any property damage or loss, including the 
identity of the owner, if other than the claimant, as applicable;
    (7) The nature and extent of the injury, as applicable;
    (8) The full name, title, if any, and address of any witness to the 
incident and a brief statement of the witness' knowledge of the 
incident;
    (9) A description of any insurance carried by the claimant or owner 
of the property and the status of any insurance claim arising from the 
incident; and
    (10) An agreement by the claimant to accept the total amount 
claimed in full satisfaction and final settlement of the claim, lien, 
or subrogation claim on the claimed amount, or any assignment of the 
claim.
    (b) A claimant or duly authorized agent or legal representative 
must sign in ink a claim and any amendment to that claim. The claim 
shall include a statement that the information provided is true and 
correct to the best of the claimant's knowledge, information, and 
belief. If the person's signature does not include the first name, 
middle initial, if any, and surname, that information must be included 
in the claim. A married woman must sign her claim in her given name, 
e.g., ``Mary A. Doe,'' rather than ``Mrs. John Doe.''


Sec.  327.46  Evidence supporting a claim.

    (a) The claimant should present any evidence in the claimant's 
possession that supports the claim. This evidence shall include, if 
available, statements of witnesses, accident or casualty reports, 
photographs and drawings.
    (b) Notwithstanding anything in the regulations in this subpart, 
the claimant shall provide such additional documents and evidence as 
requested by the Maritime Administration with respect to the claim. 
Failure to respond to reasonable requests for additional information 
and documentation can result in a determination that a proper claim has 
not been submitted.


Sec.  327.47  Proof of amount claimed for personal injury.

    The following evidence must be presented when appropriate in 
claims:
    (a) Itemized medical, hospital, and burial bills.
    (b) A written report by the attending physician including:
    (1) The nature and extent of the injury and the treatment;
    (2) The necessity and reasonableness of the various medical 
expenses incurred;
    (3) Duration of time injuries prevented or limited employment;
    (4) Past, present, and future limitations on employment;
    (5) Duration and extent of pain and suffering and of any disability 
or physical disfigurement;
    (6) A current prognosis;
    (7) Any anticipated medical expenses;
    (8) Any past medical history of the claimant relevant to the 
particular injury alleged; and
    (9) At the request of the Maritime Administration, an examination 
by an independent medical facility or physician may be required to 
provide independent medical evidence against which to evaluate the 
written report of the claimant's physician. The Maritime Administration 
determines the need for this examination, makes mutually convenient 
arrangements for such an examination, and bears the costs thereof.
    (c) All hospital records or other medical documents from either 
this injury or any relevant past injury.
    (d) If the claimant is employed, a written statement by the 
claimant's employer certifying the claimant's:
    (1) Age;
    (2) Occupation;
    (3) Hours of employment;
    (4) Hourly rate of pay or weekly salary;
    (5) Time lost from work as a result of the incident; and
    (6) Claimant's actual period of employment, full-time or part-time, 
and any effect of the injury upon such employment to support claims for 
lost earnings.
    (e) If the claimant is self-employed, written statements, or other 
evidence showing:
    (1) The amount of earnings actually lost, and
    (2) The Federal tax return, if filed, for the three previous years.
    (f) If the claim arises out of injuries to a person providing 
services to the claimant, statement of the cost necessarily incurred to 
replace the services to which claimant is entitled under law.

[[Page 65639]]

Sec.  327.48  Proof of amount claimed for loss of, or damage to, 
property.

    The following evidence should be presented when appropriate:
    (a) For each particular lost item, evidence of its value such as a 
bill of sale and a written appraisal, or two written appraisals, from 
separate disinterested dealers or brokers, market quotations, 
commercial catalogs, or other evidence of the price at which like 
property can be obtained in the community. The Maritime Administration 
may waive these requirements when circumstances warrant. The reasonable 
cost of any appraisal may be included as an element of damage if not 
deductible from any bill submitted to claimant.
    (b) For each particular damaged item which can be economically 
repaired, evidence of cost of repairs such as a receipted bill and one 
estimate, or two estimates, from separate disinterested repairmen. The 
Maritime Administration may waive these requirements when circumstances 
warrant. The reasonable cost of any estimate may be included as an 
element of damage if not deductible from any repair bill submitted to 
claimant.
    (c) For any claim which may result in payment in excess of 
$20,000.00, a survey or appraisal shall be performed as soon as 
practicable after the damage accrues, and, unless waived in writing, 
shall be performed jointly with a government representative.
    (d) If the item is so severely damaged that it cannot be 
economically repaired or used, it shall be treated as a lost item.
    (e) If a claim includes loss of earnings or use during repairs to 
the damaged property, the following must also be furnished and 
supported by competent evidence:
    (1) The date the property was damaged;
    (2) The name and location of the repair facility;
    (3) The beginning and ending dates of repairs and an explanation of 
any delay between the date of damage and the beginning date;
    (4) A complete description of all repairs performed, segregating 
any work performed for the owner's account and not attributable to the 
incident involved, and the costs thereof;
    (5) The date and place the property was returned to service after 
completion of repairs, and an explanation, if applicable, of any delay;
    (6) Whether or not a substitute for the damaged property was 
available. If a substitute was used by the claimant during the time of 
repair, an explanation of the necessity of using the substitute, how it 
was used, and for how long, and the costs involved. Any costs incurred 
that would have been similarly incurred by the claimant in using the 
damaged property must be identified;
    (7) Whether or not during the course of undergoing repairs the 
property would have been used, and an explanation submitted showing the 
identity of the person who offered that use, the terms of the offer, 
time of prospective service, and rate of compensation; and
    (8) If at the time of damage the property was under charter or 
hire, or was otherwise employed, or would have been employed, the 
claimant shall submit a statement of operating expenses that were, or 
would have been, incurred. This statement shall include wages and all 
bonuses which would have been paid, the value of fuel and the value of 
consumable stores, separately stated, which would have been consumed, 
and all other costs of operation which would have been incurred 
including, but not limited to, license and parking fees, personnel 
expenses, harbor fees, wharfage, dockage, shedding, stevedoring, 
towage, pilotage, inspection, tolls, lockage, anchorage and moorage, 
grain elevation, storage, and customs fees.
    (f) For each item which is lost, actual or constructive, proof of 
ownership.


Sec.  327.49  Effect of other payments to claimant.

    The total amount to which the claimant may be entitled is normally 
computed as follows:
    (a) The total amount of the loss, damage, or personal injury 
suffered for which the United States is liable, less any payment the 
claimant has received from the following sources:
    (1) The military member or civilian employee who caused the 
incident;
    (2) The military member's or civilian employee's insurer; and
    (3) Any joint tort-feasor or insurer.
    (b) No deduction is generally made for any payment the claimant has 
received by way of voluntary contributions, such as donations of 
charitable organizations.


Sec.  327.50  Statute of limitations for other admiralty claims and 
claim requirements.

    A civil suit must be filed within the statute of limitations of the 
specific admiralty claim. The start date for such statute of 
limitations determinations shall be the Accrual Date.


Sec.  327.51  Statute of limitations not tolled by administrative 
consideration of claims.

    The statute of limitations for filing a civil action under 46 
U.S.C. 30101(b) is not tolled by the Maritime Administration's 
administrative consideration of a claim.


Sec.  327.52  Notice of claim acceptance or denial.

    The Maritime Administration shall give prompt notice in writing of 
the acceptance or denial of each claim in whole or in part, by mail to 
the last known address of, or by personal delivery to, the claimant or 
the claimant's legal representative. In the case of denial, such notice 
shall contain a brief statement of the reason for such a denial.

    By Order of the Maritime Administrator.

    Dated: October 16, 2012.
Christine S. Gurland,
Acting Secretary, Maritime Administration.
[FR Doc. 2012-25786 Filed 10-29-12; 8:45 am]
BILLING CODE 4910-81-P