(b) Upon receipt of the claims officer's partial investigative report under paragraph (a) of this section, the authorized officer shall make a determination of the claim under the procedures of § 419.2-1. If the authorized officer finds that partial determination is inappropriate, the authorized officer shall return the partial investigative report to the claims officer.

(c) Notice of determination of each partial claim shall be sent in accordance with § 419.2-1(b). Payment of partial claims under this section shall be made in accordance with the provisions of § 419.6.

§ 419.5 Appeals.

(a) If the claimant is dissatisfied with the determination of the authorized officer, the claimant may file an appeal of the claim within 60 days after the date of receipt of the authorized officer's determination. It is not necessary to file a motion for reconsideration under § 419.2-1(c) prior to appeal.

(b) Upon receipt of an appeal, the authorized officer shall immediately forward the appeal, the investigative report, and all supporting documents and papers to the Office of Hearings and Appeals of the Department.

(c) The Office of Hearings and Appeals shall, within 6 months from the date of receipt of the appeal take the final agency action on the claim in accordance with the regulations contained in 43 CFR 4.700-4.704.

§ 419.6 Payment of claim.

(a) In all cases in which the authorized officer determines that payment of all or part of the claim filed under these regulations is proper, the authorized officer shall include with the notice of the disposition of the claim transmitted to the claimant under § 419.2-1(b) a completed payment voucher.

(b) Upon acceptance of the authorized officer's disposition of the claim, as evidenced by the execution and return of the payment voucher to the authorized officer, payment for the claims included therein shall be made by the Bureau out of "Construction and Rehabilitation" funds provided

for by the Act of July 12, 1976, 90 Stat. 889.

(c) If the claimant has received emergency or disaster loans from the United States Department of Agriculture, the Small Business Administration or any other Federal agency due to the incident, the authorized officer shall issue separate payment vouchers to the claimant and to the Federal lending agency to the extent of the indebtedness. The voucher for payment to the Federal lending agency shall be made jointly payable to the claimant and the agency.

(d) If the authorized officer is aware of any secured interest in real or personal property which is the subject of a claim under these regulations, the authorized officer shall notify such a holder of the secured interest of the payment at the time the payment voucher is transmitted to the claimant. The authorized officer may inIclude the owner of such secured interest on the voucher for payment if appropriate or desirable in the circumstances.

§ 419.7 Release.

(a) Acceptance of payment for claims under these regulations shall release the United States, its agents and employees from all possible liability for damages caused by the incident. The signed payment voucher shall constitute and be conclusive evidence of the claimant's full release of the United States, its agents and employees from all possible liability. Such release will be binding upon the claimant and all other persons for whose benefit the claim was asserted or who might otherwise seek to hold the United States, its agents or employees liable for damages to the claimant caused by the incident.

(b) If partial payment is made under § 419.4, acceptance of the payment voucher for such partial payment under these regulations shall release the United States, its agents and employees from all possible liability for damages caused by the incident and related to the partial claim. The signed payment voucher will constitute and be conclusive evidence of the claimant's release. Such release will be

binding upon the claimant and all other persons for whose benefit the partial claim was asserted or who might otherwise seek to hold the United States, its agents or employees liable for damages to the claimant caused by the incident and related to the partial claim.

(c) No release given under these regulations shall affect the rights of any insurance company with the rights of subrogee against the United States, its agents and employees to the extent that the insurance company has paid claims arising from the incident prior to payment of a claim under these regulations.

(d) If the claimant elects to appeal the determination of the authorized officer under § 419.5 of these regulations or elects to institute an action on the claim against the United States in a court of competent jurisdiction, the claimant may elect to accept payment of 50 percent of the amount determined by the authorized officer or the Office of Hearings and Appeals. The acceptance of such payment shall not constitute a release of the United States, its agents and employees under these regulations. If the claimant files a timely appeal under § 419.5 of these regulations or institutes an action on the claim against the United States in a court of competent jurisdiction after receiving payment under this paragraph, the remaining 50 percent of the amount determined by the authorized officer, or whatever amount is determined by the Office of Hearings and Appeals or the court will be paid to the claimant under § 419.6 upon final decision of the Office of Hearings and Appeals or upon final judicial decision. If the Office of Hearings and Appeals or the court decides that an amount less than 50 percent of the amount initially determined by the authorized officer and paid to the claimant under this provision is due, the claimant must promptly repay or refund to the Treasury the amount by which the payment made to the claimant exceeds the amount found by the Office of Hearings and Appeals or the court to have been due. If the claimant fails to file a timely appeal under § 419.5 or fails to file a timely action against the United States after receiving payment

under this paragraph or, after filing a timely appeal or action withdraws the appeal or action or fails to prosecute the appeal or action for any reason, the authorized officer will send the claimant a payment voucher under § 419.6 for the remaining 50 percent of the amount determined by the authorized officer. The claimant must execute and return the payment voucher within 45 days or no payment will be made for the remaining 50 percent of the amount determined by the authorized officer and the claimant shall be considered to have waived any claim to further payment under these regulations as to the claim determined by the authorized officer for which the claimant elected to accept payment of 50 percent of the amount determined. Acceptance of payment for the final 50 percent of the amount determined by the authorized officer or for the amount decided upon by the Office of Hearings and Appeals or the court shall release the United States, its agents and employees from all possible liability for damages caused by the incident to the extent provided under paragraphs (a) and (b) of this section, whichever is applicable.

§ 419.8 Limitation of relief to avoid duplication of benefits.

§ 419.8-1 Insurance or other non-Federal

sources.

No payment shall be made under these regulations to the extent they are paid or are payable from any other source, including, but not limited to the claimant's insurance policies. If the investigative report indicates that the claimant may be entitled to payment from another source, the authorized officer shall not issue a payment voucher unless and until the claimant has provided written proof that the insurer or such other source has denied the claim, and the claimant assigns to the United States any rights of action he has or may have against any other third party including an insurer. If the authorized officer later determines that (a) A claimant has received payment under these regulations and from insurance or other sources, and, (b) that the amount received from all sources exceeded the amount of the

loss, the authorized officer shall direct the claimant to refund or repay to the Treasury an amount not to exceed the payment received and sufficient to reimburse the Federal Government for that part of the payment the authorized officer deems excessive.

§ 419.8-2 Duplication of Federal benefits.

(a) The authorized officer shall assure, in cooperation with the Federal Coordinating Officer of the Federal Disaster Assistance Administration; that no claimant shall receive payment on a claim under these regulations with respect to any part of a loss as to which the claimant has received Federal financial assistance which is not repayable under any other Federal Government program.

(b) If the authorized officer later determines that (1) A claimant has received Federal financial assistance under these regulations and from another Federal agency and (2) that the amount received from all Federal agencies exceeded the amount of determined loss the authorized officer shall direct the claimant to refund or repay the Treasury an amount, not to exceed the payment received, sufficient to reimburse the Federal Government for the part of the assistance the authorized officer deems excessive.

§ 419.9 Limitation of damages.

(a) General. Claims shall be paid only for damages directly resulting from the incident and which occurred within the major disaster area. No claims shall be paid for punitive damages. The burden of proof on all claims shall be on the claimant.

(b) Death. Claims based on death shall be paid only if the death was directly caused by the incident, including, but not limited to, drowning or injuries caused by floodwaters. The measure of damages in the case of death shall be the actual pecuniary loss, as defined in § 419.0-5 of these regulations, suffered by the decedent's heirs.

(c) Personal injury. Claims based on personal injury shall be paid only if the injuries claimed were directly caused by the incident such as injuries caused by floodwaters. The measure of damages in the case of a personal

injury shall be actual pecuniary loss as defined in § 419.0-5 of these regulations.

(d) Property damage. Claims based on property damage shall be paid only if the damage claimed was directly caused by the incident, such as, but not limited to, floodwaters or Federal agency activities undertaken as a part of disaster relief activities. No claims shall be paid in excess of whichever of the following constitutes equitable compensation for loss as determined by the authorized officer: (1) The replacement cost of the property, (2) the cost of repairing the property to its condition prior to June 5, 1976, or (3) the amount determined necessary to replace or repair the property under the rules of the Federal agency which has made a disaster loan for such damage.

(e) Loss of income. Claims for loss of income whether resulting from personal injury, property damage or death will be paid to the extent such damages would be determined under the laws of the State of Idaho.

(f) Interest. No interest shall be paid any claimant based on any payments authorized or made under these regulations.

§ 419.10 Time limit for filing claim.

Claims under these regulations shall be forever barred unless properly filed in accordance with § 419.1-0 of these regulations not later than two years after the effective date hereof.

§ 419.11 Election of remedies.

(a) Withdrawal. A pending Appropriations Act claim may be withdrawn from consideration by the claimant prior to final agency action upon 15 days written notice to the authorized officer. Any claim withdrawn prior to final agency action shall be deemed abandoned and no payment shall be made on the claim.

(b) Judicial action. A claimant may institute a suit with respect to claimed damages, or any part thereof, against the United States in any court of competent jurisdiction only after withdrawal of the claim or after final agency action. If such a suit is instituted, there shall be no further consider

In order to assure that information concerning the rights of claimants and procedures to be followed reach all prospective claimants, these regulations shall be published at least once a week for 4 consecutive weeks in newspapers with general circulation in the State of Idaho. In addition, brochures and pamphlets explaining rights of claimants and procedures to be followed will be distributed in the major disaster area. Copies of these regulations shall be available at the Idaho Falls and Rexburg offices of the Bureau.

[43 FR 11821, Mar. 22, 1978]

SOURCE: 39 FR 26893, July 24, 1974, unless otherwise noted.

§ 420.1 Objectives.

§ 420.5 Definitions.

As used in this part, the term:

(a) "Off-road vehicle" means any motorized vehicle (including the standard automobile) designed for or capable of cross-country travel on or immediately over land, water, sand, snow, ice, marsh, swampland, or natural terrain. The term excludes: (1) Nonamphibious registered motorboats; (2) military, fire, emergency, or law enforcement vehicles when used for emergency purpose; (3) self-propelled lawnmowers, snowblowers, garden or lawn tractors, and golf carts while being used for their designed purpose; (4) agricultural, timbering, construction, exploratory, and development equipment and vehicles while being used exclusively as authorized by

permit, lease, license, agreement, or contract with the Bureau; (5) any combat or combat support vehicle when used in times of national defense emergencies; and (6) "official use" vehicles.

(b) "Bureau" means the Bureau of Reclamation.

(c) "Reclamation lands" mean all lands under the custody and control of the Commissioner, Bureau of Reclamation.

(d) "Off-road vehicle area" means a portion or all of a specifically designated parcel of Reclamation lands opened to off-road vehicle use in accordance with the procedure in section 420.21.

(e) "Off-road vehicle trail" means a specifically delineated path or way varying in width which is designated to be used by and maintained for hikers, horsemen, snow travelers, bicyclists and for motorized vehicles.

(f) "Official use" means use of a vehicle by an employee, agent, or designated representative of the Federal Government who, with special permission from the Bureau of Reclamation, uses a vehicle for an officially authorized purpose.

(g) "Organized Event" means а structured, or consolidated, or scheduled meeting involving 15 or more vehicles for the purpose of recreational use of Reclamation lands involving the use of off-road vehicles. The term does not include family groups participating in informal recreational activities. [39 FR 26893, July 24, 1974, as amended at 44 FR 34909, June 15, 1979]

Subpart A-Operating Criteria

§ 420.11 Requirements-vehicles.

Each off-road vehicle that is operated on Reclamation lands shall meet the following requirements:

(a) It shall conform to applicable State laws and vehicle registration requirements.

(b) It shall be equipped with a proper muffler and spark arrestor in good working order and in constant operation. The spark arrestor must conform to Forest Service Spark Arrestor Standard 5100-1a, and there

shall be no muffler cutout, bypass, or similar device.

(c) It shall have adequate brakes and, for operation from dusk to dawn, working headlights and taillights.

§ 420.12 Requirements-operators.

(a) In addition to the regulation of Part 420, operators shall comply with any applicable State laws pertaining to off-road vehicles; if State laws are lacking or less stringent than the regulations established in this part, then the regulations in Part 420 are minimum standards and are controlling.

(b) Each operator of an off-road vehicle operated on Reclamation lands shall possess a valid motor vehicle operator's permit or license; or, if no permit or license is held, he/she shall be accompanied by or under the immediate supervision of a person holding a valid permit or license.

(c) During the operation of snowmobiles, trail bikes, and any other off road vehicle the operator shall wear safety equipment, generally accepted or prescribed by applicable State law or local ordinance for use of the particular activity in which he/she is participating.

(d) No person may operate an offroad vehicle:

(1) In a reckless, careless or negligent manner;

(2) In excess of established speed limits;

(3) While under the influence of alcohol or drugs;

(4) In a manner likely to cause irreparable damage or disturbance of the land, wildlife, vegetative resources, or archeological and historic values of re

sources; or

(5) In a manner likely to become an unreasonable nuisance to other users of Reclamation or adjacent lands.

Subpart B-Designated Areas and Permitted Events

8 420.21 Procedure for designating areas for off-road vehicle use

The Regional Director shall, to the extent practicable, hold public hearings to obtain interested user groups, local populace, and affected Federal, State, and county agencies' opinions