Incident Claims Incident Business Management Meeting April 3

Incident Claims Incident Business Management Meeting April 3 -4, 2007

Objective -What is Claims Management -Roles & Responsibilities -Pursuing Fire Trespass Claims (Claims For) -Claims Authorities -Inviting a Claim (Claims Against) -Contacts -Handling of claims occurring on incidents

Claims Management • The process for managing Claims Against the Government begins once the Forest Service is aware of an incident that may give rise to a claim, and ends when the claim is adjudicated. • The process for Claims For the Government begins when violations/damages have been identified and investigative proceedings begin, and ends when the debt has been liquidated

References 6509. 11 h Service-Wide Claims Management Handbook (Draft) • Chapter 10 – Incident Investigations • Chapter 20 – Administrative Claims for Govt • Chapter 30 – Administrative Claims Against the Govt • Chapter 40 – Employee Claims

Claims Responsibilities Employees It is the responsibility of each employee who witnesses or learns of an incident that may lead to a claim of or against the Government to: - Document what occurred and why/how, even if it appears the FS has no responsibility for the incident; document witnesses - Never admit fault - Notify supervisor and/or line officer

Claims Responsibilities Line Officers It is responsibility of Line Officers to ensure that: 1) Incidents that could result in claims of or against the Government are reported to Law Enforcement and Investigations (LE&I) personnel within 1 business day so they can be appropriately investigated, and 2) ASC is notified within 5 days of notification of incident, and 3) Claims package is transmitted to ASC within 1 day after receipt of investigation report

Claims Responsibilities Law Enforcement LEI Staff has overall program & oversight responsibility for investigations that could result in claims and will: 1) conduct an investigation or provide direct investigative oversight of a properly trained investigator, and 2) ensure a timely report of their findings is prepared & submitted to the Line Officer where incident occurred, and 3) ensure needed follow-up action is completed.

Claims Responsibilities Unit Claims Liason – Serve as Claims contact/coordinator – Provide names and contact information of FS employees to ASC Claims Specialists when needed – Help identify appropriate FS employees for claim cases and cases in litigation – Receive and distribute claims-related documents sent to the unit [e. g. , litigation documents; claim information; FOIA requests/responses; Congressional requests/responses)

Claims Responsibilities Unit Claims Liason (cont’d) – Upon request, provide information to the public and Forest Service employees (e. g. , who to contact regarding claims questions and/or where to mail claims; where to send notifications of accidents; where to send copies of motor vehicle accident reports involving third parties) – Provide job code to pay claims against the Government, as requested – Provide job codes for billings for claims for the Government, as requested – Receive written claim, date-stamp claim, send claim to the ASC

Claims of the Government • Take aggressive action to collect all claims of the U. S. arising out of Forest Service activities • Damage to Personal Property (Vehicles) – 3 Yrs • Fire Suppression Costs – 3 Yrs • Resource Damage from fires on NFS – 6 Yrs

FIRE TRESPASS CLAIMS FOR THE GOVERNMENT A fire trespass claim for the Government results when a person or legal entity, acting negligently or otherwise wrongfully, causes a wildfire and burns Forest Service resources or property. A fire trespass may be committed without criminal intent.

Fire Investigations The investigation report on fires must include the items described in sections 12. 26 a through 12. 26 n, 6509. 11 h, Chapter 10 Identify the cause of the fire and the factual or circumstantial evidence supporting the determination of the fire cause. Describe the qualifications of the investigator, or other individual, who determined the fire cause.

Fire Investigations (continued) 12. 26 b - Personnel Include the following information concerning personnel: 1. Copy of the line officer briefing. 2. Escaped Fire Situation Analysis (EFSA) (FSM 5132. 1). 3. Information on weather conditions and fire danger prevailing the 5 days immediately prior to the start of the fire and for the duration of the fire. Include weather reports and lightning detection reports. 4. Copies of letters delegating authority to the fire's Incident Commander(s). 5. Home unit contact information for all Incident Command personnel

12. 26 f - Fire Records Retain all fire records, including shift plans, time reports, equipment records, dispatch logs, radio logs, and State and local agreements at the incident unit. Make the records available to Claims Specialists to support the Government's position in defending against claims or to substantiate the amount claimed in claims of the Government. If a claim evolves into a lawsuit, the records are subject to discovery by the other party and submission to the court.

12. 26 n - Intentionally Set Wildfires 1. Information on insurance coverage of the person(s) who set the fire. 2. Copy of State codes relative to parental liability and monetary limits of parental liability if the fire was started by juveniles.

INTERAGENCY INCIDENT BUSINESS MANAGEMENT HANDBOOK CHAPTER 60 – ACCIDENT INVESTIGATION AND REPORTING An independent investigation team must prepare a supplemental narrative report for the following: 1. Any fatality(s). 2. Hospitalization of three or more individuals. 3. Loss of body function. 4. Incapacitation expected to last over 30 days. 5. Damage to government property exceeding $5, 000, excluding resource damage. 6. Actual or potential serious injury to private person and substantial damage ordestruction of private property.

Chapter 70 71 – CLAIMS INVESTIGATIONS. All accidents or incidents, which may result in a claim for or against the government, must be promptly investigated and clearly reported by a trained investigator or other qualified personnel. Ideally, the investigation is completed by law enforcement personnel in coordination with the Safety Officer. Serious accidents (e. g. , fatality or hospitalization of three or more personnel), substantial property damage, or serious personal injury will normally be investigated by an independent investigation team. Investigations should be made while witnesses are available, before damages have been repaired, and prior to presentation of claims. The incident agency should not commission special Claims Damage Assessment Teams, except in unusual circumstances. Chapter 60, Sections 62 -64, provides investigation guidelines and reporting requirements.

Claims of the Govt Billable vs. Non-Billable Costs Reference Chapter 20, FSH 6509. 11 h 21. 11 c - Fire Suppression Costs. When a bill will be issued for fire suppression, calculate all direct costs of fire suppression. Generally, these costs represent the gross charges to the fire. The accounting system was designed to capture costs incurred on specific fires through the use of a prestructured management code assigned to the fire. Use these costs to the fullest extent possible to support billings issued as a result of the fire. Review charges to determine if they accurately reflect the Forest Service cost of suppression.

1. Billable Costs. The following list of suppression costs is not intended to be all inclusive, but should reflect the majority of costs the Forest Service does incur. a. Salaries and wages of Forest Service employees, including Job Corps Civilian Conservation Center staff. Salary costs include base time, overtime, hazard pay, and employer's contributions to retirement, social security, life insurance, and health benefits. b. Travel and transportation costs. c. Wages of temporary laborers and related costs d. Cost of tools and supplies.

Billable costs (continued) e. Surface and air equipment operating costs and rentals, including the fixed ownership rate for working capital fund equipment f. Other items, such as telephone, telegraph, and land rental costs. g. Costs of trespass investigation, preparation of reports, and damage assessments, unless not allowed by State statute.

2. Non-billable Costs. Do not include the cost for the following items: a. Tools and supplies purchased, but not used, provided they are available to be used for other fire purposes (such as those able to be stored in the fire cache). b. Personnel (labor and overhead) ordered for duty, but not actually used on the fire (for example, held in reserve). c. Equipment, tools, and supplies burned, lost, or otherwise destroyed during suppression through inadequate supervision or other administrative error. d. Crews used for training purposes.

Non-billable costs (continued) e. Management supervision, such as that performed by the District Ranger or Forest Supervisor, unless such officer actually occupies a position in the fire suppression organization. f. Labor and equipment contributed at no cost to the Forest Service by cooperating agencies, such as the Navy and Army, provided the Forest Service is not responsible for billing the other agencies costs under an interagency agreement. g. Costs of chemicals or equipment used on an experimental basis only in connection with equipment development projects.

The project manager's statement and transaction registers should be used to accumulate trespass costs in lieu of individual payroll registers Form AD-355, travel vouchers, and equipment use tearsheets. Maintain copies of all supporting documentation in the case file.

Claims of the Govt Billable vs. Non-Billable Costs Reference Chapter 20, FSH 6509. 11 h In addition to the cost of suppression, damages to resources, real, or personal property may be billed. See sections 21. 11 a, 21. 11 b, and 21. 12 c for additional information in arriving at amounts to bill for these damages.

Damages to Forest Service Sawtimber and Other Marketable Products. Base the methods used to determine the volume and value of damage to trees on Regional methods and procedures in volume measurement as well as those described in the Regional timber appraisal handbook (FSM 2420). Rely on timber appraisal personnel to gather data.

Damages to Improvements on Forest Service Land. In general, the claim amount would include the cost to repair the improvement. When the improvement is not repairable, the claim would include the cost to replace the improvement less depreciation.

Claims of the Govt Initiating Collections Claims officers must initiate collection actions on all trespass claims due the Forest Service, regardless of the amount (FSM 6570. 4). Tort and trespass claims become due the Forest Service when a Claims Officer determines from all the evidence that there is a substantial likelihood that an identified person or legal entity, acting negligently or otherwise unlawfully, caused damages to Forest Service resources or property. This determination administratively establishes the identified person or legal entity as a debtor of the Forest Service, liable to the Government for the amount of the damage sustained.

Claims of the Govt Authorities for Billing State Tort Law/Fire Suppression Costs. Reasonable fire suppression costs are recoverable when incurred by the Forest Service to protect Forest Service land property from human-caused wildfires started unlawfully. This right under federal law was upheld in the Chesapeake & Ohio Railroad vs. U. S. case, based on the well-established doctrine in tort law that a property owner may recover reasonable expenses incurred to protect the owner's property from damages caused by the wrongful conduct of another. Generally, State statutes also specify that fire suppression costs are recoverable from persons or legal entities that start wildfires negligently or in violation of State fire safety laws.

Claims of the Govt Authorities for Billing State fire safety laws are usually varied and numerous. A working knowledge of these laws facilitates billing where the fire-starter's conduct was not clearly negligent. Under some State's statutes, such as Nevada's, a person who starts a wildfire is (absolutely) liable for its suppression costs whether or not the person started the fire negligently or in violation of law.

Fire Trespass Claim Process - Wildfire occurs - Line Officer notifies LE&I within 1 business day; investigation begins - Line Officer notifies ASC within 5 business days via 6500 -210 (preferred method) & sends copy to Unit Claims Liason - IC/FMO prepares fire report listing resources used to control the wildfire – must be accurate & timely, usually within 2 weeks of containment

Fire Trespass Claims Process (cont’d) - Once investigation complete and negligence/intent is determined, Unit Line Officer, the IC (or FMO), and LE jointly review the fire report, investigative report and all associated costs for accuracy. - Line Officer mails claims package to ASC-Claims w/transmittal letter; copy sent to Unit Claims Liason & others per local policy - Claim is processed by ASC-Claims Unit - ASC sends Claims Liason notifications on progress & closure of claim - Claims Liason forwards notices to Line and PC

Claims Process LINE OFFICER LETTER OF TRANSMITTAL -Any additional information pertinent to the claim - Explanation of costs that should be deducted or added to claim amount not reflected on transaction register.

CLAIMS AGAINST THE GOVT INVITING A CLAIM VS. DOING AN ADMINISTRATIVE JOB GOVERNMENT EMPLOYEES MAY NOT GIVE AID OR ASSISTANCE TO A CLAIMANT IN PROSECUTING A CLAIM AGAINST THE GOVERNMENT

Claims Against the Govt DOING AN ADMINISTRATIVE JOB [ Refer Potential Claimants to ASC (Preferred) [ [ [ Give Prospective Claimants Form SF 95 (Form preferred but not mandatory) Accept SF-95 (ALWAYS DATE STAMP!) Send SF-95 to ASC-Claims asap

Claims Against the Govt PROHIBITIONS X ENCOURAGE SUBMISSION OF A CLAIM UNDER FTCA X GIVE AID OR ASSISTANCE IN PROSECUTING A CLAIM AGAINST THE GOV’T X ASSUME LIABILITY FOR DAMAGES ON BEHALF OF THE GOVERNMENT X PAY FOR OR ATTEMPT TO REPAIR DAMAGE OUTSIDE OF CLAIMS PROCESS X GIVE OPINION ON MERITS OF CLAIM

Claims Against the Govt INVITING A CLAIM ~ PROHIBITED BY LAW 18 USC 205 ~ FINE: $10, 000 OR IMPRISONMENT 2 YEARS OR BOTH

CLAIMS CONTACTS ASC Claims website: http: //fsweb. r 3. fs. fed. us/asc/bfm/programs/financial-operations/claims/ ASC Claims Email: ascclaims@fs. fed. us ASC Toll Free Main Phone Number: 1 -877 -372 -7248 ASC Toll Free Fax: 1 -866 -341 -1541 ASC Claims Mailing Address: USDA Forest Service Albuquerque Service Center ATTN: Claims 101 B Sun Ave NE Claims Specialist for R 8/R 9: Lynn Mighton 626 E. Wisconsin Avenue Milwaukee, WI 53202 Office: (414) 297 -3733