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S was a member of the P group. Under 

§ 1.1502–32(b)(2)(i), P’s basis in its S stock is 

increased to reflect S’s $40 gain immediately 

before the redemption of S’s stock. 

(c) Partial redemption. The facts are the 

same as in paragraph (a) of this Example 9, 

except that S distributes the land to P in 

redemption of 20 shares of P’s stock in S. 

Thus, immediately after the redemption, P 

owns 75% (60 shares/80 shares) of S’s 

outstanding stock, and S’s minority 

shareholder owns 25% (20 shares/80 shares). 

The redemption does not satisfy the 

requirements of section 302(b) and is treated 

under section 302(d) as a distribution to 

which section 301 applies. The end of the 

day rule does not apply for purposes of 

determining whether P and S are members of 

the same consolidated group immediately 

after the redemption. Because P owns only 

75% of S’s stock immediately after the 

redemption, the distribution is not an 

intercompany distribution described in 

§ 1.1502–13(f)(2)(i). Thus, P may not exclude 

any amount of the distribution that is a 

dividend, and P’s basis in S’s stock is not 

reduced under § 1.1502–32(b)(2)(iv). P may 

be entitled to a dividends received deduction 

under section 243(c) (but see section 

1059(e)). For the reasons discussed in 

paragraph (b) of this Example 9, S’s gain 

under section 311(b) must be reported under 

the end of the day rule in S’s taxable year 

ending June 30, during which S was a 

member of the P group. 

(d) Distribution of loss property. The facts 

are the same as in paragraph (a) of this 

Example 9, except that the land distributed 

by S to P has a fair market value of $60 rather 

than $140. The end of the day rule applies 

for purposes of determining the taxable year 

in which S must take into account its 

realized loss on the distribution of the land. 

Thus, under the end of the day rule, S’s loss 

on the distribution of the land, which occurs 

simultaneously with S’s ceasing to be a 

member, is taken into account in S’s taxable 

year that ends as a result of the redemption. 

However, the end of the day rule does not 

apply for other purposes; for example, the 

rule does not apply in determining whether 

the transaction is an intercompany 

distribution or in determining the attributes 

(as defined in § 1.1502–13(b)(6)) of the loss. 

Therefore, because S is not a member 

immediately after the distribution, S’s loss on 

the distribution is not recognized under 

section 311(a). Under the end of the day rule, 

the loss is taken into account as a noncapital, 

nondeductible expense on the P group’s 

consolidated return, and under § 1.1502– 

32(b)(1)(i), P’s basis in its S stock is 

decreased by $40 immediately before S 

leaves the group. 

Example 10. Extraordinary item of S 

corporation—(a) Facts. On July 1, P 

purchases all the stock of S, an accrual-basis 

corporation with an election in effect under 

section 1362(a). Prior to the sale, S had 

engaged a consulting firm to find a buyer for 

S’s stock, and the consulting firm’s fee was 

contingent upon the successful closing of the 

sale of S’s stock. 

(b) Analysis. To the extent S’s payment of 

the success-based fee to its consultants is 

otherwise deductible, this item is an 

extraordinary item (see paragraph 

(b)(2)(ii)(C)(9) of this section) that becomes 

deductible on July 1 simultaneously with the 

event that terminates S’s election as an S 

corporation. Under paragraph (b)(1)(ii)(B)(2) 

of this section, S’s obligation to pay the fee 

is treated as becoming deductible on June 30 

under the previous day rule. 

(6) Effective/applicability date. 

Paragraphs (b)(2)(i) and (b)(4) of this 

section apply to consolidated return 

years beginning on or after the date 

these regulations are published as final 

regulations in the Federal Register. 

Otherwise, this paragraph (b) applies to 

corporations becoming or ceasing to be 

members of consolidated groups on or 

after the date these regulations are 

published as final regulations in the 

Federal Register. 

* * * * * 

John Dalrymple, 

Deputy Commissioner for Services and 

Enforcement. 

[FR Doc. 2015–05123 Filed 3–5–15; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 15 

[Docket No. CIV 150; AG Order No. 3504– 

2015] 

RIN 1105–AB37 

Determination That an Individual Shall 

Not Be Deemed an Employee of the 

Public Health Service 

AGENCY: Department of Justice. 

ACTION: Proposed rule. 

SUMMARY: The proposed rule proposes 

criteria and a process by which the 

Attorney General or designee may 

determine that an individual shall not 

be deemed an employee of the Public 

Health Service for purposes of coverage 

under the Federal Tort Claims Act. 

DATES: Written comments must be 

postmarked on or before May 5, 2015, 

and electronic comments must be sent 

on or before midnight Eastern time May 

5, 2015. 

ADDRESSES: To ensure proper handling 

of comments, please reference ‘‘Docket 

No. CIV 150’’ on all written and 

electronic correspondence. Written 

comments being sent via regular or 

express mail should be sent to James G. 

Touhey, Jr., Director, Torts Branch, Civil 

Division, Department of Justice, Room 

8098N National Place Building, 1331 

Pennsylvania Avenue NW., Washington, 

DC 20530. Comments may also be sent 

electronically through http://

www.regulations.gov using the 

electronic comment form provided on 

that site. An electronic copy of this 

document is also available at the 

http://www.regulations.gov Web site. 

The Department will accept attachments 

to electronic comments in Microsoft 

Word, WordPerfect, Adobe PDF, or 

Excel file formats only. The Department 

will not accept any file formats other 

than those specifically listed here. 

Please note that the Department is 

requesting that electronic comments be 

submitted before midnight Eastern Time 

on the day the comment period closes 

because http://www.regulations.gov 

terminates the public’s ability to submit 

comments at midnight Eastern Time on 

the day the comment period closes. 

Commenters in time zones other than 

Eastern Time may want to consider this 

so that their electronic comments are 

received. All comments sent via regular 

or express mail will be considered 

timely if postmarked on the day the 

comment period closes. 

FOR FURTHER INFORMATION CONTACT: 

James G. Touhey, Jr., Director, Torts 

Branch, Civil Division, Department of 

Justice, Washington, DC 20530, (202) 

616–4400. 

SUPPLEMENTARY INFORMATION: 

Posting of Public Comments. Please 

note that all comments received are 

considered part of the public record and 

made available for public inspection 

online at http://www.regulations.gov 

and in the Department’s public docket. 

Such information includes personal 

identifying information (such as your 

name, address, etc.) voluntarily 

submitted by the commenter. 

You are not required to submit 

personal identifying information in 

order to comment on this rule. 

Nevertheless, if you want to submit 

personal identifying information (such 

as your name, address, etc.) as part of 

your comment, but do not want it to be 

posted online or made available in the 

public docket, you must include the 

phrase ‘‘PERSONAL IDENTIFYING 

INFORMATION’’ in the first paragraph 

of your comment. You must also place 

all the personal identifying information 

you do not want posted online or made 

available in the public docket in the first 

paragraph of your comment and identify 

what information you want redacted. 

If you want to submit confidential 

business information as part of your 

comment, but do not want it to be 

posted online or made available in the 

public docket, you must include the 

phrase ‘‘CONFIDENTIAL BUSINESS 

INFORMATION’’ in the first paragraph 

of your comment. You must also 

prominently identify confidential 

business information to be redacted 


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within the comment. If a comment has 

so much confidential business 

information that it cannot be effectively 

redacted, all or part of that comment 

may not be posted online or made 

available in the public docket. 

Personal identifying information and 

confidential business information 

identified and located as set forth above 

will be redacted and the comment, in 

redacted form, will be posted online and 

placed in the Department’s public 

docket file. Please note that the Freedom 

of Information Act applies to all 

comments received. If you wish to 

inspect the agency’s public docket file 

in person by appointment, please see 

the ‘‘For Further Information’’ 

paragraph. 

Discussion 

The Federally Supported Health 

Centers Assistance Acts of 1992 (Pub. L. 

102–501) and 1995 (Pub. L. 104–73) 

amended section 224 of the Public 

Health Service Act (42 U.S.C. 233) to 

make the Federal Tort Claims Act 

(FTCA) (28 U.S.C. 1346(b), 2671–2680) 

the exclusive remedy for personal injury 

or death resulting from the performance 

of medical, surgical, dental or related 

functions by federally supported health 

centers and their employees, to the 

extent the centers and employees have 

been deemed by the Public Health 

Service, Department of Health and 

Human Services, to be eligible for FTCA 

coverage. Section 233(i) of title 42 

provides that the Attorney General, in 

consultation with the Secretary of 

Health and Human Services (Secretary), 

may on the record determine, after 

notice and an opportunity for a full and 

fair hearing, that an individual 

physician or other licensed or certified 

health care practitioner who is an 

officer, employee, or contractor of an 

entity described in 42 U.S.C. 233(g)(4) 

shall not be deemed to be an employee 

of the Public Health Service for 

purposes of 42 U.S.C. 233 if ‘‘treating 

such individual as such an employee 

would expose the Government to an 

unreasonably high degree of risk of 

loss’’ based on certain prescribed 

circumstances. This proposed rule 

proposes that the determination may be 

made based on one or more of the 

following statutory criteria: (1) The 

individual does not comply with the 

policies and procedures that the entity 

has implemented pursuant to 42 U.S.C. 

233(h)(1); (2) the individual has a 

history of claims filed against him or her 

as provided for under 42 U.S.C. 233 that 

is outside the norm for licensed or 

certified health care practitioners within 

the same specialty; (3) the individual 

refused to reasonably cooperate with the 

Attorney General in defending against 

any such claim; (4) the individual 

provided false information relevant to 

the individual’s performance of his or 

her duties to the Secretary, the Attorney 

General, or an applicant for or recipient 

of funds under title 42 chapter 6A; or (5) 

the individual was the subject of 

disciplinary action taken by a state 

medical licensing authority or a state or 

national professional society. 

The proposed rule proposes a process 

for making such a determination. The 

first step, pursuant to § 15.13(a), is a 

determination by the ‘‘initiating 

official,’’ who is a Deputy Assistant 

Attorney General of the Department of 

Justice’s Civil Division, that treating an 

individual as an employee of the Public 

Health Service may expose the 

Government to an unreasonably high 

degree of risk of loss. Section 15.13(a) 

requires the initiating official, after 

consultation with the Secretary of the 

Department of Health and Human 

Services, to provide notice to the 

individual in question that an 

administrative hearing will be held to 

determine whether treating the 

individual as an employee of the Public 

Health Service for purposes of 42 U.S.C. 

233(g) would expose the United States 

to an unreasonably high degree of risk 

of loss. Following a period for discovery 

and depositions, to the extent 

determined appropriate by an 

administrative law judge under § 15.15, 

the hearing is then conducted by the 

administrative law judge in the manner 

prescribed in § 15.14. After the hearing 

is conducted and the record is closed, 

§ 15.16 requires the administrative law 

judge to submit written findings of fact, 

conclusions of law, and a recommended 

decision to the ‘‘adjudicating official,’’ 

who is the Assistant Attorney General 

for the Department of Justice’s Civil 

Division. Section 15.17(b) then gives the 

parties 30 days to submit certain 

additional materials, including 

exceptions to the administrative law 

judge’s recommended decision, to the 

adjudicating official, who then must 

make a final agency determination of 

whether treating the individual as an 

employee of the Public Health Service 

for purposes of 42 U.S.C. 233(g) would 

expose the United States to an 

unreasonably high degree of risk of loss. 

Section 15.18 provides that an 

individual who is dissatisfied with the 

determination may seek rehearing 

within 30 days after notice of the 

determination is sent, and § 15.20 

allows individuals who have been 

determined to expose the United States 

to an unreasonably high degree of risk 

of loss to apply for reinstatement after 

a period of time. Consistent with 42 

U.S.C. 1320a–7e(a) and 45 CFR 60.3, 

60.5(h) and 60.16, the rule also provides 

for the Department to notify the 

National Practitioner Data Bank (NPDB), 

a confidential information 

clearinghouse created by Congress with 

primary goals of improving health care 

quality and protecting the public, of the 

issuance of a final order deeming an 

individual not to be an employee of the 

Public Health Service under this rule. 

This proposed rule would add a new 

subpart B in part 15 of title 28, Code of 

Federal Regulations, containing the 

regulations of the Department of Justice 

governing such a determination. 

The Department invites comments on 

any issues relating to the proposed rule. 

Regulatory Flexibility Act 

The Attorney General, in accordance 

with the Regulatory Flexibility Act, 5 

U.S.C. 605(b), has reviewed this 

proposed rule and, by approving it, 

certifies that it would not have a 

significant economic impact on a 

substantial number of small entities 

because it pertains to personnel and 

administrative matters affecting the 

Department. 

Executive Orders 12866 and 13563: 

Regulatory Planning and Review 

This proposed rule has been drafted 

and reviewed in accordance with 

Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ and in 

accordance with Executive Order 13563, 

‘‘Improving Regulation and Regulatory 

Review.’’ 

The Department of Justice has 

determined that this proposed rule is a 

‘‘significant regulatory action’’ under 

Executive Order 12866, section 3(f), and 

accordingly this proposed rule has been 

reviewed by the Office of Management 

and Budget. 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. The 

Department has assessed the costs and 

benefits of this proposed rule and 

believes that its benefits would justify 

its costs. As an initial matter, the 

Department does not expect that the 

proposed rule would have systemic or 

large-scale costs, because it is only the 


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exceptional provider who would be 

subject to a de-deeming proceeding or 

determination; proceedings under this 

proposed rule would be rare and would 

not affect the overwhelming majority of 

patients, providers, or health centers. 

The costs associated with the proposed 

rule, then, would come in the 

individual instances of its application. 

A de-deeming administrative process 

would impose certain limited litigationlike costs, but §§ 15.14 and 15.15 

provide flexibility that will enable the 

parties and administrative law judge to 

avoid unduly burdensome costs when 

those costs are unnecessary. In the event 

that an individual is ultimately 

determined to expose the United States 

to an unreasonably high degree of risk 

of loss, there will be certain costs and 

benefits to patients, providers, and 

health centers. A provider who is 

deemed not to be a member of the 

Public Health Service may be required 

to obtain his or her own medical 

malpractice insurance (as may the 

health center, for matters involving the 

provider that are determined not to be 

covered by the FTCA) or leave the 

practice. If the individual leaves the 

practice, the employing center may 

incur costs of replacing him or her with 

a new provider. The Department expects 

that substantial benefits will arise from 

such replacements, as any individual 

who is replaced will be one who has 

been determined to create an 

unreasonably high degree of risk of loss. 

It is thus likely that the individual’s 

replacement will provide reduced risks 

of loss for the United States and better 

care for patients. While there may be 

instances in which an individual who 

presented such a risk of loss cannot be 

replaced, possibly resulting in impaired 

access to care for medically underserved 

health center patients, the Department 

believes that these costs are 

substantially outweighed by the benefits 

of implementing this authority. 

The Department is unable to quantify 

these costs at this time, as the authority 

to deem a provider not a member of the 

Public Health Service has not 

previously been used. However, based 

on the expectation that the authority 

will be used sparingly and only for 

providers who expose the United States 

to an unreasonably high degree of risk 

of loss, the Department has concluded 

that the net benefits of improved patient 

care and reduced costs of malpractice 

will outweigh these possible costs. 

Executive Order 13132: Federalism 

This proposed rule would not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132, 

the Department of Justice has 

determined that this proposed rule 

would not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. 

Executive Order 12988: Civil Justice 

Reform 

This proposed rule meets the 

applicable standards provided in 

sections 3(a) and 3(b)(2) of Executive 

Order 12988. 

Unfunded Mandates Reform Act of 

1995 

This proposed rule would not result 

in the expenditure by state, local, and 

tribal governments, in the aggregate, or 

by the private sector, of $100 million or 

more in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995, 2 U.S.C. 1501 et seq. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This proposed rule is not a major rule 

as defined by section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, 5 U.S.C. 804. This 

proposed rule would not result in an 

annual effect on the economy of $100 

million or more; a major increase in cost 

or prices; significant adverse effects on 

competition, employment, investment, 

productivity, or innovation; or the 

ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. 

List of Subjects in 28 CFR Part 15 

Claims, Government contracts, 

Government employees, Health care, 

Immunization, Nuclear energy. 

For the reasons set forth in the 

preamble, the Attorney General 

proposes to amend part 15 of title 28 of 

the Code of Federal Regulations as 

follows: 

PART 15—CERTIFICATIONS, 

DECERTIFICATIONS, AND NON– 

DEEMING DETERMINATIONS FOR 

PURPOSES OF THE FEDERAL TORT 

CLAIMS ACT 

■ 1. The authority citation for part 15 is 

revised to read as follows: 

Authority: 5 U.S.C. 301, 554, 556, 557, and 

8477(e)(4); 10 U.S.C. 1054, 1089; 22 U.S.C. 

2702, 28 U.S.C. 509, 510, and 2679; 38 U.S.C. 

7316; 42 U.S.C. 233, 2212, 2458a, and 

5055(f); and sec. 2, Pub. L. 94–380, 90 Stat. 

1113 (1976). 

■ 2. The heading for part 15 is revised 

to read as set forth above. 

■ 3. Add a heading for subpart A to read 

as follows: 

Subpart A—Certification and 

Decertification in Connection With 

Certain Suits Based Upon Acts or 

Omissions of Federal Employees and 

Other Persons 

§§ 15.1, 15.2, 15.3, and 15.4 

[Designated as Subpart A] 

■ 4. Designate §§ 15.1 through 15.4 as 

subpart A. 

§§ 15.5, 15.6, 15.7, 15.8, 15.9, and 

15.10 [Added and Reserved] 

■ 5. Add reserved §§ 15.5 through 15.10 

to newly designated subpart A. 

■ 6. Add subpart B to read as follows: 

Subpart B—Determination of 

Individuals Deemed Not To Be 

Employees of the Public Health 

Service 

Sec. 

15.11 Purpose. 

15.12 Definitions. 

15.13 Notice of hearing. 

15.14 Conduct of hearing. 

15.15 Discovery. 

15.16 Recommended decision. 

15.17 Final agency determination. 

15.18 Rehearing. 

15.19 Effective date of a final agency 

determination. 

15.20 Reinstatement. 

§ 15.11 Purpose. 

(a) The purpose of this regulation is 

to implement the notice and hearing 

procedures applicable to a 

determination by the Attorney General 

or his designee under 42 U.S.C. 233(i) 

that an individual shall not be deemed 

an employee of the Public Health 

Service for purposes of 42 U.S.C. 233(g). 

(b) Section 233(i) of title 42 provides 

that the Attorney General, in 

consultation with the Secretary of 

Health and Human Services, may on the 

record determine, after notice and an 

opportunity for a full and fair hearing, 

that an individual physician or other 

licensed or certified health care 

practitioner who is an officer, employee, 

or contractor of an entity described in 

42 U.S.C. 233(g)(4) shall not be deemed 

to be an employee of the Public Health 

Service for purposes of 42 U.S.C. 233 if 

treating such individual as such an 

employee would expose the 

Government to an unreasonably high 

degree of risk of loss. 

§ 15.12 Definitions. 

As used in this regulation: 


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(a) Attorney General means the 

Attorney General of the United States or 

any designee of the Attorney General to 

whom authority has been delegated to 

conduct a hearing and to make a 

determination pursuant to section 233(i) 

of title 42, United States Code. 

(b) Adjudicating official means the 

Assistant Attorney General for the Civil 

Division. 

(c) Entity means an entity described in 

42 U.S.C. 233(g)(4). 

(d) Health and Human Services 

means the Department of Health and 

Human Services or a division or 

component of the Department of Health 

and Human Services. 

(e) Individual means an individual 

physician or other licensed or certified 

health care practitioner who is or was 

an officer, employee, or contractor of an 

entity described in 42 U.S.C. 233(g)(4). 

(f) Initiating official means a Deputy 

Assistant Attorney General of the Civil 

Division of the Department of Justice or, 

except for responsibilities that the 

initiating official must perform 

personally, his or her designee. 

(g) Parties means an Individual, as 

defined in paragraph (e) of this section, 

and the Initiating official, as defined in 

paragraph (f) of this section. 

(h) Public Health Service means the 

Public Health Service or a division or 

component of the Public Health Service. 

(i) Secretary means the Secretary of 

the Department of Health and Human 

Services or the Secretary’s designee. 

(j) Unreasonably high degree of risk of 

loss is a determination based on 

consideration of one or more of the 

following criteria— 

(1) The individual does not comply 

with the policies and procedures that 

the entity has implemented pursuant to 

42 U.S.C. 233(h)(1); 

(2) The individual has a history of 

claims filed against him or her as 

provided for under 42 U.S.C. 233 that is 

outside the norm for licensed or 

certified health care practitioners within 

the same specialty; 

(3) The individual refused to 

reasonably cooperate with the Attorney 

General in defending against any such 

claim; 

(4) The individual provided false 

information relevant to the individual’s 

performance of his or her duties to the 

Secretary, the Attorney General, or an 

applicant for or recipient of funds under 

title 42, chapter 6A, United States Code; 

or 

(5) The individual was the subject of 

disciplinary action taken by a state 

medical licensing authority or a state or 

national professional society. 

§ 15.13 Notice of hearing. 

(a) Whenever the initiating official 

personally concludes that treating an 

individual as an employee of the Public 

Health Service may expose the 

Government to an unreasonably high 

degree of risk of loss, the initiating 

official, after consultation with the 

Secretary, shall notify the individual 

that an administrative hearing will be 

conducted for the purpose of 

determining whether treating the 

individual as an employee of the Public 

Health Service for purposes of 42 U.S.C. 

233(g) would expose the United States 

to an unreasonably high degree of risk 

of loss. 

(b) The notice of hearing shall be in 

writing and shall be sent by registered 

or certified mail to the individual at the 

individual’s last known address, or to 

the individual’s attorney in the event 

the Attorney General has received 

written notice that the individual has 

retained counsel. 

(c) The notice shall contain: 

(1) A statement of the nature and 

purpose of the hearing; 

(2) The name of the administrative 

law judge; 

(3) A statement of the nature of the 

action proposed to be taken; and 

(4) A statement of the time, date, and 

location of the hearing. 

(d) The hearing shall be initiated not 

sooner than 60 days of the date on the 

written notice of hearing. 

§ 15.14 Conduct of hearing. 

(a) An administrative law judge 

appointed in accordance with 5 U.S.C. 

3105 shall preside over the hearing. 

(b) If the administrative law judge 

appointed is unacceptable to the 

individual, the individual shall inform 

the Attorney General within 14 days of 

the notification of the reasons for his or 

her position. The Attorney General may 

select another administrative law judge, 

or affirm the initial selection. In either 

case, the official shall inform the 

individual of the reasons for the 

decision. 

(c) The administrative law judge shall 

have the following powers: 

(1) Administer oaths and affirmations; 

(2) Issue subpoenas authorized by 

law; 

(3) Rule on offers of proof and receive 

relevant evidence; 

(4) Take depositions or have 

depositions taken when the ends of 

justice would be served; 

(5) Regulate the course of the hearing; 

(6) Hold conferences for the 

settlement or simplification of the issues 

by consent of the parties or by the use 

of alternative means of dispute 

resolution; 

(7) Inform the parties as to the 

availability of one or more alternative 

means of dispute resolution, and 

encourage use of such methods; 

(8) Dispose of procedural requests or 

similar matters; 

(9) Make or recommend decisions; 

(10) Require and, in the discretion of 

the administrative law judge, adopt 

proposed findings of fact, conclusions of 

law, and orders. 

(11) Take other action authorized by 

agency rule consistent with this 

subchapter; 

(12) All powers and duties reasonably 

necessary to perform the functions 

enumerated in paragraphs (c)(1) through 

(11) of this section. 

(d) The administrative law judge may 

call upon the parties to consider: 

(1) Simplification or clarification of 

the issues; 

(2) Stipulations, admissions, 

agreements on documents, or other 

understandings that will expedite 

conduct of the hearing; 

(3) Limitation of the number of 

witnesses and of cumulative evidence; 

(4) Such other matters as may aid in 

the disposition of the case. 

(e) At the discretion of the 

administrative law judge, parties or 

witnesses may participate in hearings by 

video conference. 

(f) All hearings under this part shall 

be public unless otherwise ordered by 

the administrative law judge. 

(g) The hearing shall be conducted in 

conformity with 5 U.S.C. 554–557 

(sections 5–8 of the Administrative 

Procedure Act). 

(h) The initiating official shall have 

the burden of going forward with the 

evidence and shall generally present the 

government’s evidence first. 

(i) Technical rules of evidence shall 

not apply to hearings conducted 

pursuant to this part, but rules designed 

to assure production of the most 

credible evidence available and to 

subject testimony to cross-examination 

shall be applied where reasonably 

necessary by the administrative law 

judge. The administrative law judge 

may exclude irrelevant, immaterial, or 

unduly repetitious evidence. All 

documents and other evidence offered 

or taken for the record shall be open to 

examination by the parties, and 

opportunity shall be given to refute facts 

and arguments advanced on either side 

of the issues. A transcript shall be made 

of the oral evidence except to the extent 

the substance thereof is stipulated for 

the record. 

(j) During the time a proceeding is 

before an administrative law judge, all 

motions shall be addressed to the 

administrative law judge and, if within 


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his or her delegated authority, shall be 

ruled upon. Any motion upon which 

the administrative law judge has no 

authority to rule shall be certified to the 

adjudicating official with a 

recommendation. The opposing party 

may answer within such time as may be 

designated by the administrative law 

judge. The administrative law judge 

may permit further replies by both 

parties. 

§ 15.15 Discovery. 

(a) At any time after the initiation of 

the proceeding, the administrative law 

judge may order, by subpoena if 

necessary, the taking of a deposition and 

the production of relevant documents 

by the deponent. Such order may be 

entered upon a showing that the 

deposition is necessary for discovery 

purposes, and that such discovery could 

not be accomplished by voluntary 

methods. Such an order may also be 

entered in extraordinary circumstances 

to preserve relevant evidence upon a 

showing that there is substantial reason 

to believe that such evidence could not 

be presented through a witness at the 

hearing. The decisive factors for a 

determination under this subsection, 

however, shall be fairness to all parties 

and the requirements of due process. A 

deposition may be taken orally or upon 

written questions before any person 

who has the power to administer oaths 

and shall not exceed one day of seven 

hours. 

(b) Each deponent shall be duly 

sworn, and any adverse party shall have 

the right to cross-examine. Objections to 

questions or documents shall be in short 

form, stating the grounds upon which 

objections are made. The questions 

propounded and the answers thereto, 

together with all objections made (but 

not including argument or debate), shall 

be reduced to writing and certified by 

the person before whom the deposition 

was taken. Thereafter, the person taking 

the deposition shall forward the 

deposition and one (1) copy thereof to 

the party at whose instance the 

deposition was taken and shall forward 

one (1) copy to the representative of the 

other party. 

(c) A deposition may be admitted into 

evidence as against any party who was 

present or represented at the taking of 

the deposition, or who had due notice 

thereof, if the administrative law judge 

finds that there are sufficient reasons for 

admission and that the admission of the 

evidence would be fair to all parties and 

comport with the requirements of due 

process. 

§ 15.16 Recommended decision. 

Within a reasonable time after the 

close of the record of the hearings 

conducted under § 15.14, the 

administrative law judge shall submit 

written findings of fact, conclusions of 

law, and a recommended decision to the 

adjudicating official. The administrative 

law judge shall promptly make copies of 

these documents available to the parties 

and the Secretary. 

§ 15.17 Final agency determination. 

(a) In hearings conducted under 

§ 15.14, the adjudicating official shall 

make the final agency determination, on 

the basis of the record, findings, 

conclusions, and recommendations 

presented by the administrative law 

judge. 

(b) Prior to making a final agency 

determination, the adjudicating official 

shall give the parties an opportunity to 

submit the following, within thirty (30) 

days after the submission of the 

administrative law judge’s 

recommendations: 

(1) Proposed findings and 

determinations; 

(2) Exceptions to the 

recommendations of the administrative 

law judge; 

(3) Supporting reasons for the 

exceptions or proposed findings or 

determinations; and 

(4) Final briefs summarizing the 

arguments presented at the hearing. 

(c) All determinations made by the 

adjudicating official under this rule 

shall constitute final agency actions. 

After a final agency determination 

under this rule that an individual shall 

not be deemed to be an employee of the 

Public Health Service, such individual 

will be deemed not to be an employee 

of the Public Health Service except 

pursuant to § 15.20. 

§ 15.18 Rehearing. 

(a) An individual dissatisfied with a 

final agency determination under 

§ 15.17 may, within 30 days after the 

notice of the final agency determination 

is sent, request the adjudicating official 

to re-review the record, and may present 

additional evidence that is appropriate 

and pertinent to support a different 

decision. 

(b) The adjudicating official may 

require that another oral hearing be held 

on one or more of the issues in 

controversy, or permit the dissatisfied 

party to present further evidence or 

argument in writing, if the adjudicating 

official finds that the individual has: 

(1) Presented evidence or argument 

that is sufficiently significant to require 

the conduct of further proceedings; or 

(2) Shown some defect in the conduct 

of the adjudication under this subpart 

sufficient to cause substantial unfairness 

or an erroneous finding in that 

adjudication. 

(c) Any rehearing ordered by the 

adjudicating official shall be conducted 

pursuant to §§ 15.13 through 15.16. 

(d) A determination that an individual 

may be deemed to be an employee of the 

Public Health Service for purposes of 42 

U.S.C. 233 pursuant to this section shall 

be distributed in the same manner as 

provided in § 15.19. 

§ 15.19 Effective date of a final agency 

determination. 

(a) A final agency determination 

under § 15.17 that an individual shall 

not be deemed to be an employee of the 

Public Health Service for purposes of 42 

U.S.C. 233 shall be provided to the 

Department of Health and Human 

Services and sent by certified or 

registered mail to the individual and to 

the entity employing such individual if 

the individual is currently an officer, 

employee, or contractor of an entity 

described in 42 U.S.C. 233(g)(4). In the 

event the individual is no longer an 

officer, employee, or contractor of such 

an entity, the determination shall be 

sent by certified or registered mail to the 

individual and to the last entity 

described in 42 U.S.C. 233(g)(4) at 

which such individual was an officer, 

employee, or contractor. 

(b) A final agency determination shall 

be effective upon the date the written 

determination is received by such 

entity. 

(c) An adverse final agency 

determination shall apply to all acts or 

omissions of the individual occurring 

after the date the adverse final 

determination is received by such 

entity. 

(d) The Attorney General will inform 

the National Practitioner Data Bank of 

any final agency determination under 

§ 15.17 that an individual shall not be 

deemed to be an employee of the Public 

Health Service for purposes of 42 U.S.C. 

233. 

§ 15.20 Reinstatement. 

(a) No less than five years after the 

time for rehearing has expired, and no 

more often than every five years, an 

individual who has been the subject of 

a final agency determination under 

§ 15.17 may petition the Attorney 

General for reconsideration of that 

determination and reinstatement. The 

individual bears the burden of proof and 

persuasion. 

(b) In support of the petition for 

reinstatement, the individual shall 

submit relevant evidence relating to the 

period since the original proceedings 

under this subpart and a statement 


rmajette on DSK2TPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 44 / Friday, March 6, 2015 / Proposed Rules 12109 

demonstrating that treating the 

individual as an employee of the Public 

Health Service for purposes of 42 U.S.C. 

233(g) would no longer expose the 

United States to an unreasonably high 

degree of risk of loss. 

(c) Upon receiving a petition for 

reinstatement, the initiating official 

shall determine, in the initiating 

official’s unreviewable discretion, 

whether the petition makes a prima 

facie case that no longer would expose 

the United States to an unreasonably 

high degree of risk of loss. The initiating 

official’s determination that a petition 

does not make a prima facie case is not 

subject to further review. 

(d) Upon a prima facie case having 

been made, an administrative law judge 

shall be appointed in accordance with 5 

U.S.C. 3105 and shall conduct such 

proceedings pursuant to §§ 15.13 

through 15.16 as the administrative law 

judge deems necessary, in his or her 

sole discretion, to determine whether 

the individual has established that 

treating the individual as an employee 

of the Public Health Service for 

purposes of 42 U.S.C. 233(g) would no 

longer expose the United States to an 

unreasonably high degree of risk of loss, 

and shall submit written findings of 

fact, conclusions of law, and a 

recommended decision to the 

adjudicating official pursuant to § 15.16. 

(e) On a petition for reinstatement, the 

adjudicating official shall make the final 

agency determination, on the basis of 

the record, findings, conclusions, and 

recommendations presented by the 

administrative law judge, which shall 

include the record from the original 

determination and any petition for 

rehearing. All determinations made by 

the adjudicating official under this rule 

shall constitute final agency actions. 

(f) A determination that an individual 

is reinstated pursuant to this section 

shall be distributed in the same manner 

as provided in § 15.19. 

Dated: February 25, 2015. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2015–05027 Filed 3–5–15; 8:45 am] 

BILLING CODE 4410–12–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2014–0528; FRL–9924–04- 

Region 7] 

Approval and Promulgation of 

Implementation Plans; State of 

Kansas; Infrastructure SIP 

Requirements for the 2010 Sulfur 

Dioxide National Ambient Air Quality 

Standard 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

elements of a State Implementation Plan 

(SIP) submission from the State of 

Kansas addressing the applicable 

requirements of Clean Air Act (CAA) 

section 110 for the 2010 National 

Ambient Air Quality Standards 

(NAAQS) for Sulfur Dioxide (SO2), 

which requires that each state adopt and 

submit a SIP to support implementation, 

maintenance, and enforcement of each 

new or revised NAAQS promulgated by 

EPA. These SIPs are commonly referred 

to as ‘‘infrastructure’’ SIPs. The 

infrastructure requirements are designed 

to ensure that the structural components 

of each state’s air quality management 

program are adequate to meet the state’s 

responsibilities under the CAA. 

DATES: Comments must be received on 

or before April 6, 2015. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R07– 

OAR–2014–0528, by one of the 

following methods: 

1. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

2. Email: kemp.lachala@epa.gov. 

3. Mail: Ms. Lachala Kemp, Air 

Planning and Development Branch, U.S. 

Environmental Protection Agency, 

Region 7, Air and Waste Management 

Division, 11201 Renner Boulevard, 

Lenexa, Kansas 66219. 

4. Hand Delivery or Courier: Deliver 

your comments to Ms. Lachala Kemp, 

Air Planning and Development Branch, 

U.S. Environmental Protection Agency, 

Region 7, Air and Waste Management 

Division, 11201 Renner Boulevard, 

Lenexa, Kansas 66219. 

Instructions: Direct your comments to 

Docket ID No. EPA–R07–OAR–2014– 

0528. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http://

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through http://

www.regulations.gov or email 

information that you consider to be CBI 

or otherwise protected. The http://

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through http://

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and should be free of any 

defects or viruses. 

Docket: All documents in the 

electronic docket are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically at http://

www.regulations.gov or in hard copy at 

U.S. Environmental Protection Agency, 

Region 7, 11201 Renner Boulevard, 

Lenexa, Kansas 66219 from 8:00 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The interested 

persons wanting to examine these 

documents should make an 

appointment with the office at least 24 

hours in advance. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lachala Kemp, Air Planning and 

Development Branch, U.S. 

Environmental Protection Agency, 

Region 7, 11201 Renner Boulevard, 

Lenexa, KS 66219; telephone number: 

(913) 551–7214; fax number: (913) 551– 

7065; email address: kemp.lachala@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we refer 

to EPA. This section provides additional 


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