46028 Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Rules and Regulations 

DEPARTMENT OF JUSTICE 

Office of Justice Programs 

28 CFR Part 32 

[Docket No.: OJP (OJP)–1333] 

RIN 1121–AA56 

Public Safety Officers’ Benefits 

Program 

AGENCY: Office of Justice Programs, 

Justice. 

ACTION: Final rule 

SUMMARY: The Bureau of Justice 

Assistance (‘‘BJA’’), Office of Justice 

Programs, Department of Justice, 

published the proposed rule for the 

Public Safety Officers Benefits (‘‘PSOB’’) 

Program on July 26, 2005, 70 FR 43,078. 

During the comment period, BJA 

received comments on its proposed rule 

from numerous parties. After further 

review of the proposed rule and very 

recent amendments to the underlying 

statute, and careful consideration and 

analysis of all comments, BJA made 

amendments that are incorporated into 

this final rule. 

DATES: Effective September 11, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Hope Janke, Counsel to the Director, 

Bureau of Justice Assistance, at (202) 

514–6278, or toll-free at 1 (888) 744– 

6513. 

SUPPLEMENTARY INFORMATION: BJA 

published the proposed rule for the 

PSOB Program on July 26, 2005. During 

the comment period, BJA received 

comments on its proposed rule from a 

number of interested parties: National 

police and fire associations; municipal 

police, fire, and rescue departments; 

PSOB hearing officers; survivors of 

fallen public safety officers; and 

individual concerned citizens. 

Additionally, Members of Congress 

commented on the proposal. Many of 

the comments related to the provisions 

implementing the Hometown Heroes 

Survivors Benefits Act of 2003 

(‘‘Hometown Heroes Act’’), Pub. L. 108– 

182. Many other comments related to 

various definitions contained in the 

proposed rule. One commentator 

expressed approval of the proposed rule 

for implementing the PSOB Act instead 

of merely restating or rephrasing the 

statutory language; BJA has continued 

this approach in the final rule. After 

careful consideration and analysis of all 

comments received, BJA made 

amendments that are incorporated into 

this final rule. In addition, the final rule 

contains some clarifying changes to 

provisions in the proposed rule where 

there were some previously unnoticed 

ambiguities, or where the language was 

more complex than necessary; also, the 

final rule in places changes proposed 

language that was unintentionally more 

restrictive than the statute (e.g., the 

definitions of ‘‘parent-child 

relationship,’’ ‘‘adopted child,’’ 

‘‘intentional misconduct,’’ and several 

education-benefits provisions). A 

discussion of the comments and 

changes follows. 

The first part of the discussion 

generally describes the structure and 

background of the PSOB Program and 

aspects of the history of its 

administration by BJA. The second part 

of the discussion covers the recent 

changes to the PSOB Act contained in 

Public Law 109–162 (‘‘DOJ 

Reauthorization Act’’). Two days after 

the closing of the comment period for 

the proposed rule, certain amendments 

to the PSOB Act were passed by the 

House of Representatives. Because 

enactment of these amendments into 

law appeared to be likely before the end 

of 2005, BJA deemed it prudent to wait 

before publishing the final rule. In fact, 

the amendments (with other changes to 

the PSOB statute), contained in the bill 

that became the DOJ Reauthorization 

Act, were passed by the Senate on 

December 17th and by the House of 

Representatives on the following day, 

and were signed into law by the 

President on January 5, 2006. 

Accordingly, the final rule contains 

several clarifying and conforming 

changes occasioned by these statutory 

amendments. The third part of the 

discussion addresses the comments 

received by BJA that relate to the 

proposed provisions implementing the 

Hometown Heroes Act, and explains the 

changes being made in the final rule in 

response to those comments. The fourth 

part is a specific discussion of the terms 

‘‘line of duty’’ and ‘‘authorized 

commuting,’’ in response to a number of 

comments requesting clarification on 

these definitions. The last part of the 

discussion addresses the remainder of 

the comments in a section-by-section 

analysis, indicating where changes to 

provisions were made, or (as the case 

may be) where BJA determined no 

changes to be necessary. 

As a preliminary matter, BJA wishes 

to correct two citations made on the 

same page, 70 FR at 43,080, of the 

preamble to the proposed rule: (1) In the 

discussion of the authority of the 

publication, Legal Interpretations of the 

Public Safety Officers’ Benefits Act, and 

the reliance of courts thereon, one 

decision mistakenly was included in the 

list of citations, which should have 

read: ‘‘E.g., Chacon v. United States, 48 

F.3d 508 (Fed. Cir. 1995), aff’g 32 Fed. 

Cl. at 687–688; Durco, 14 Cl. Ct. at 427; 

Tafoya v. United States, 8 Cl. Ct. 256, 

262–265 (Cl. Ct. 1985); North, 555 

F.Supp. at 386; Morrow, 647 F.2d at 

1101–1102.’’; and (2) in the discussion 

of jurisdictional cases that had nullified 

the rule of the jurisdictional holding of 

Russell, 637 F.2d at 1256–1260, the list 

of citations, from which two decisions 

inadvertently were omitted, should have 

read: ‘‘Davis v. United States, 169 F.3d 

1196 (9th Cir. 1999); Wydra v. United 

States, 722 F.2d 834 (D.C. Cir. 1983); 

Tafoya v. Dep’t of Justice, 748 F.2d 1389 

(10th Cir. 1984); see also, e.g., Durco v. 

LEAA, No. 86–3660, order (3d Cir., Dec. 

24, 1986); Russell v. Law Enforcement 

Assistance Administration, 637 F.2d 

354 (5th Cir. Unit A 1981); Lankford v. 

Law Enforcement Assistance 

Administration, 620 F.2d 35 (4th Cir. 

1980); LaBare v. United States, No. C04– 

4974 MHP, slip op. at 3–5 (N.D. Ca. Mar. 

10, 2005); Ramos-Ve ́lez v. United States, 

826 F.Supp. 615 (D. P.R. 1993); Thomas 

v. United States, No. 80–6511–Civ– 

ALH, order (S.D. Fl., Mar. 16, 1981).’’ 

I. General Background 

An individual serving a public agency 

does not have an automatic or 

freestanding statutory right to a PSOB 

Act death or disability benefit. In order 

to qualify for the PSOB Act death or 

disability benefit, rather, a claimant 

must demonstrate (and BJA must 

‘‘determine[]’’) under ‘‘regulations 

issued pursuant to’’ the Act, ‘‘that a 

public safety officer has died as the 

direct and proximate result of a personal 

injury sustained in the line of duty,’’ 42 

U.S.C. 3796(a), or ‘‘that a public safety 

officer has become permanently and 

totally disabled as the direct result of a 

catastrophic injury sustained in the line 

of duty,’’ id. 3796(b). Thus, in death and 

disability cases, the Act requires BJA to 

determine two distinct issues: First, the 

status of the individual—whether he 

was a public safety officer; and second, 

the circumstances of his death or 

disability—whether it was directly and 

proximately caused by a line of duty 

injury. 

The PSOB Act is an effort to 

‘‘balance[] ‘compensating for inadequate 

state and local benefits [with] budgetary 

considerations and * * * fears that 

federal assumption of full responsibility 

for compensating the families of 

deceased officers would weaken the 

federal system and allow states and 

municipalities to evade their 

responsibility.’ ’’ Chacon v. United 

States, 32 Fed. Cl. 684, 687 (1995) 

(citing Russell v. Law Enforcement 

Assistance Admin. 637 F.2d 1255, 1261 

(9th Cir. 1980)), aff’d, 48 F.3d 508 (Fed. 


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1E.g., Pub. L. 96–157, sec. 2, 93 Stat. 1167, 1219 

(1979); Pub. L. 98–411, sec. 204, 98 Stat. 1545, 1561 

(1984); Pub. L. 98–473, secs. 609F, 609Z, 98 Stat. 

1837, 2098, 2107 (1984); Pub. L. 99–500, sec. 101(b) 

(sec. 207), 100 Stat. 1783, 1783–56 (1986); Pub. L. 

99–591, sec. 101(b) (sec. 207), 100 Stat. 3341, 3341 

56 (1986); Pub. L. 100–690, secs. 6105, 6106, 102 

Stat. 4181, 4341 (1988); Pub. L. 101–647, secs. 

1301–1303, 104 Stat. 4789, 4834 (1990); Pub. L. 

102–520, 106 Stat. 3402 (1992); Pub. L. 103–322, 

sec. 330001(e), 108 Stat. 1796, 2138 (1994); Pub. L. 

104–238, 110 Stat. 3114 (1996); Pub. L. 105–180, 

112 Stat. 511 (1998); Pub. L. 105–390, 112 Stat. 

3495 (1998); Pub. L. 106–276, 114 Stat. 812 (2000); 

Pub. L. 106–390, sec. 305, 114 Stat. 1552, 1573 

(2000); Pub. L. 107–56, sec. 613, 115 Stat. 272, 369 

(2001); Pub. L. 107–196, 116 Stat. 719 (2002); Pub. 

L. 108–182, 117 Stat. 2649 (2003); Pub. L. 109–162, 

sec. 1164, 119 Stat. 2960, 3120 (2006); see also Pub. 

L. 107–37, 115 Stat. 219 (2001); Pub. L. 107–56, 

secs. 611, 612, 115 Stat. at 369. 

2 It is well established that—‘‘[w]here the literal 

reading of a statutory term would ‘compel an odd 

result,’ we must search for other evidence of 

congressional intent to lend the term its proper 

scope. * * * [e]ven though, as Judge Learned Hand 

said, ‘the words used, even in their literal sense, are 

the primary, and ordinarily the most reliable, 

source of interpreting the meaning of any writing’. 

*** ’’ Public Citizen v. Department of Justice, 491 

U.S. 440, 454 (1989) (Brennan, J.) (quoting first 

Green v. Bock Laundry Machine, 490 U.S. 504, 509 

(1989) and second Cabell v. Markham, 148 F.2d 

737, 739 (2nd Cir. 1945), aff’d, 326 U.S. 404 (1945)); 

491 U.S. at 469—474 (Kennedy, J., concurring); 

Hawaii v. Mankichi, 190 U.S. 197, 212 (1903); 

Church of the Holy Trinity v. United States, 143 

U.S. 457, 459 (1892). 

Cir.); see Rose v. Arkansas State Police, 

479 U.S. 1 (1986) (per curiam); Holstine 

v. Dep’t of Justice, No. 80–7477, slip op. 

at 2 (9th Cir., Aug. 4, 1982), 688 F.2d 

845, 846 (table). To this end (and 

sharply unlike the case with PSOB Act 

education benefits, which the law 

provides that the Attorney General 

‘‘shall provide,’’ 42 U.S.C. 3796d–

1(a)(1), or ‘‘shall approve,’’ id. 3796d–

2(b)), the Act expressly entrusts vast 

administrative and interpretive 

authority to BJA in defining the very 

right to a death or disability benefit—the 

benefit shall be paid only when ‘‘the 

Bureau of Justice Assistance * * * 

determines, under [its own] regulations 

that a public safety officer has died as 

the direct and proximate result of a 

personal injury sustained in the line of 

duty,’’ id. 3796(a), or ‘‘that a public 

safety officer has become permanently 

and totally disabled as the direct result 

of a catastrophic injury sustained in the 

line of duty,’’ id. 3796(b). The Act—in 

at least four places—expressly 

authorizes BJA to issue regulations, id. 

3796(a) & (b), 3796c(a), and 3796d–3(a), 

and goes on to provide that the 

regulations issued by BJA ‘‘will be 

determinative of conflict of laws issues 

arising under’’ the Act, and that, 

although BJA ‘‘may utilize such 

administrative and investigative 

assistance as may be available from 

State and local agencies[, r]esponsibility 

for making final determinations shall 

rest with the Bureau.’’ Id. 3796c(a) & (b). 

Clearly, the legislative intention is for 

BJA to exercise its discretion and 

expertise to administer the Act and to 

define and ‘‘determine[,]’’ consistent 

with the Act as a whole, the 

circumstances under which death and 

disability benefits should be extended. 

See, e.g., Porter v. United States, 64 Fed. 

Cl. 143 (2005), aff’d, No. 05–5105, order 

(Fed. Cir., Apr. 6, 2006). 

Carrying out this legislative intention 

has been challenging; since the PSOB 

Act’s enactment into law, Public Law 

94–430, 90 Stat. 1346, 1346–1348 

(1976), the Act has been amended no 

fewer than eighteen times, sometimes 

creating overlapping statutory 

structures.1 These myriad amendments 

(or, rather, some of them) have allowed 

some ambiguities and imprecision in 

the Act that BJA has had to work 

through in the thousands of individual 

PSOB Act benefit claims it has 

processed in the thirty years since the 

program began. For example: 

(1) As originally enacted, the PSOB 

Act provided only for death benefits to 

the statutorily-designated survivors 

(including any ‘‘child’’) of a fallen 

public safety officer. See 42 U.S.C. 

3796(a). For this reason, it is 

unremarkable that the Act should define 

‘‘child’’ to mean ‘‘any natural, 

illegitimate, adopted, or posthumous 

child or stepchild of a deceased public 

safety officer who, at the time of the 

public safety officer’s death, is * * * 18 

years of age or under.’’ See id. 

3796b(3)(i). Analytically speaking, this 

definition was undisturbed when the 

Act subsequently was amended to 

provide benefits to disabled public 

safety officers. See id. 3796(b). But 

when—still later—the Act was further 

amended to provide education benefits 

to any ‘‘dependent * * * child’’ of a 

deceased or disabled public safety 

officer, see id. 3796d–1(a)(1), a patent 

conflict manifested itself: Under the 

literal terms of the Act, by definition no 

one could be a ‘‘child’’ at all, unless his 

public safety officer parent were dead, 

but the Act also clearly commanded that 

a ‘‘child of any eligible public safety 

officer’’—which includes any living 

disabled officer—was entitled to the 

Act’s education benefits. Exercising the 

considerable interpretative authority 

given to it by statute, BJA has 

understood the education-benefits 

provision to be in the nature of a pro 

tanto amendment to the PSOB Act’s 

definition of ‘‘child’’ and thus 

consistently has construed that 

definition to apply only to the factual 

situation it obviously contemplates. See, 

e.g., 70 FR at 43084 (proposed definition 

of ‘‘Child,’’ for codification at 28 CFR 

32.3). 

(2) The PSOB Act contains several 

‘‘disentitling’’ provisions, relating to the 

actions or status of the officer himself, 

that prevent payment of benefits under 

various circumstances, such as the 

suicide, intentional misconduct, 

voluntary intoxication, or gross 

negligence of the officer. See 42 U.S.C. 

3796a(1)—(3). Another ‘‘disentitling’’

provision, relating to the actions or 

status of a potential beneficiary (as 

opposed to the actions or status of the 

officer himself), operates, for example, 

to prevent payment of benefits to an 

officer’s murderer. See id. 3796a(4) 

(2006). Yet another ‘‘disentitling’’

provision, added to the Act in 1984, 

forbade BJA from paying a benefit ‘‘to 

any individual employed in a capacity 

other than a civilian capacity.’’ See id. 

3796a(5) as in effect on Jan. 4, 2006. At 

first glance, this appears to be an 

unremarkable provision against doublepayment of benefits: When military 

death or disability benefits are payable, 

civilian benefits are not. The literal text 

of the provision, however, accomplishes 

this result only in the case of a disabled 

officer whose employment was other 

than in a civilian capacity (e.g., a 

disabled military police officer); but if 

the officer is dead, payments, if any, 

must go ‘‘to’’ his statutory survivors—

thus putting their actions or status (not 

the officer’s) at issue. Following the 

literal text of the provision, therefore, 

would have meant that if a police officer 

were to die in the line of duty survived 

by a husband who is a Captain on active 

duty in the Reserves, the husband could 

not be paid a PSOB Act death benefit. 

Mindful of the canon that a statute may 

be construed so as to avoid plainlyabsurd results entailed in a literal 

reading,2 BJA has understood this 

provision within the whole context of 

the Act to prohibit payment only when 

the public safety officer himself was 

employed in a capacity other than a 

civilian capacity. See, e.g., 70 FR at 

43087 (for codification at 28 CFR 

32.6(a)) (‘‘No payment shall be made 

with respect to any public safety officer 

who is an individual employed as 

described in the Act, at 42 U.S.C. 

3796a(5).’’). The reasonability of BJA’s 

interpretation was entirely vindicated 

on January 5, 2006, when the President 

signed into law the DOJ Reauthorization 

Act, amending 42 U.S.C. 3796a(5), 

which (now) forbids BJA from paying a 

benefit ‘‘with respect to any individual 

employed in a capacity other than a 


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3 In several places, the Act uses key terms in their 

ordinary sense, with the statutory ‘‘definition’’

providing only points of clarification as to detail. 

See, e.g., 42 U.S.C. 3796b(2) (2006) (‘‘ ‘chaplain’

includes any individual serving as an officially 

recognized or designated member of a legally 

organized volunteer fire department . * * * ’’). To 

read this ‘‘definition’’ literally would be tantamount 

to a suggestion that the provision makes the fire 

chief a ‘‘chaplain.’’ To avoid this ridiculous and 

counter-intuitive suggestion, BJA understands that 

the legislative intention is to apply the ordinary 

meaning of the word, supplemented by the terms 

of the statutory ‘‘definition.’’ See, e.g., 70 FR at 

43084 (proposed definition of ‘‘Chaplain,’’ for 

codification at 28 CFR 32.3) (‘‘Chaplain means a 

clergyman, or other individual trained in pastoral 

counseling, who meets the definition provided in 

the Act, at 42 U.S.C. 3796b(2).’’). 

4See, e.g., Hibbs v. Winn, 542 U.S. 88 (2004); 

Gutierrez v. Ada, 528 U.S. 250, 255 (2000) (‘‘Words 

and people are known by their companions.’’). 

5For approximately fourteen years the literal text 

of the statute required that the public safety officer 

serve a public agency ‘‘as a * * * rescue squad or 

ambulance crew’’; this patent error was remedied in 

2000 when the Act was amended to permit an 

individual member of a squad or crew to be 

covered. See supra footnote 3. It may go without 

saying that, during those fourteen years, BJA 

(relying in significant part on its statutory 

interpretive authority and on the canon against 

absurd results) did not apply these provisions of the 

Act literally—as forbidding any but one-man squads 

or crews to be eligible for PSOB benefits. 

6See, e.g., Lewis v. United States, 445 U.S. 55, 60 

(1980); Crandon v. United States, 494 U.S. 152, 171 

(1990) (Scalia, J., concurring in the judgment); see 

generally Consolidated Rail Corp. v. United States, 

896 F.2d 574, 578–79 (D.C. Cir. 1990) (per Ginsburg, 

J.) (‘‘For we must never forget that it is a statute we 

are expounding, and it is the intention of the 

drafters, as expressed in the words they used, that 

we must heed. * * * ‘[E]ffect must be given, if 

possible, to every word, clause and sentence of a 

statute * * * so that no part will be inoperative or 

superfluous, void or insignificant.’ ’’ (quoting 

National Ass’n of Recycling Indus. v. ICC, 660 F.2d 

795, 799 (D.C. Cir. 1981)). 

civilian capacity.’’ Pub. L. 109–162, sec. 

1164, 119 Stat. at 3120. 

(3) The PSOB Act’s definition of ‘‘law 

enforcement officer’’ has occasioned 

considerable difficulty. Prior to 1984, a 

‘‘law enforcement officer’’ was defined 

as ‘‘a person involved in crime and 

juvenile delinquency control or 

reduction, or enforcement of the 

criminal laws. This includes, but is not 

limited to, police, corrections, 

probation, parole, and judicial officers.’’

That ‘‘control or reduction’’ applied to 

‘‘crime’’ and to ‘‘juvenile delinquency’’

was clear enough on the face of the 

statute, but there was considerable 

debate in the field as to whether 

‘‘enforcement of the criminal laws’’

included enforcement of the juvenile 

delinquency laws, which debate 

eventually led to an amendment that 

struck the word ‘‘criminal’’ so as to 

enable the ‘‘enforcement’’

unquestionably to apply also to 

‘‘juvenile delinquency.’’ See 42 U.S.C. 

3796b(5) as in effect on Jan. 4, 2006 (‘‘an 

individual involved in crime and 

juvenile delinquency control or 

reduction, or enforcement of the laws, 

including, but not limited to, police, 

corrections, probation, parole, and 

judicial officers’’). Consistent, however, 

with the ordinary sense of the term ‘‘law 

enforcement officer’’ 3 and applying the 

traditional interpretive canon noscitur a 

sociis 4 to the statutory definition of the 

term, BJA has understood ‘‘law 

enforcement officer’’ not to encompass 

those who have no criminal lawenforcement authority or enforce only 

civil laws. See, e.g., 70 FR at 43084 

(proposed definition of ‘‘enforcement of 

the laws,’’ to be codified at 28 CFR 32.3 

(‘‘Enforcement of the laws means 

enforcement of the criminal law.’’; the 

proposed definition of ‘‘Criminal law’’

clarifying that juvenile delinquency is 

covered)). Notwithstanding the 

interpretive authority granted to BJA by 

the Act, the absence of the word 

‘‘criminal’’ from the statutory phrase 

‘‘enforcement of the laws’’ unfortunately 

provided the predicate for some, 

including at least two judges, 

incorrectly to conclude that the PSOB 

Act death benefit may be paid with 

respect to individuals who had no 

criminal law-enforcement authority, but 

enforced only civil laws. See Hawkins v. 

United States, 68 Fed. Cl. 74 (2005), 

appeal filed, No. 06–5013 (Fed. Cir., 

Oct. 31, 2005); Cassella v. United States, 

68 Fed. Cl. 189 (2005), appeal filed, No. 

06–5035 (Fed. Cir., Dec. 19, 2005). 

Confirming the correctness of BJA’s 

understanding of the statute, however 

(and directly contrary to these erroneous 

judicial rulings), the January 5, 2006, 

clarifying amendments to the PSOB Act 

changed 42 U.S.C. 3796a(5) to define 

‘‘law enforcement officer’’ as ‘‘an 

individual involved in crime and 

juvenile delinquency control or 

reduction, or enforcement of the 

criminal laws (including juvenile 

delinquency), including, but not limited 

to, police, corrections, probation, parole, 

and judicial officers.’’

(4) More than once, the text of the 

PSOB Act has generated confusion by 

elaborating upon a specific term in one 

provision, only to use a short-hand 

version of the same term in another. 

Compare, e.g., 42 U.S.C. 3796(b) 

(‘‘permanently and totally disabled’’) 

and id. 3796d–1(a)(1)(B) (‘‘totally and 

permanently disabling injury’’

(emphasis added)) with id. 3796d(2) 

(referring only to ‘‘total disability’’). 

Prior to January 5, 2006, the Act referred 

in one place to an ‘‘officially recognized 

or designated * * * public employee 

member of a rescue squad or ambulance 

crew,’’ id. 3796b(4) (emphasis added), 

and in another place merely to ‘‘a 

member of a rescue squad or ambulance 

crew,’’ id. 3796b(8)(A).5 Following the 

traditional rules that the starting point 

of statutory interpretation must be the 

language of the statute itself and that 

every word of a statute should be given 

effect, if possible, and none rendered 

superfluous,6 in the exercise of the 

discretion granted to it by the PSOB Act, 

BJA resolved the ambiguity created by 

these different textual formulations 

contained in the Act by interpreting the 

briefer term as a short-hand expression 

of the longer one; i.e., by construing the 

statute to require that ‘‘rescue squad or 

ambulance crew member[s]’’ be 

‘‘officially recognized or designated 

* * * public employee member[s].’’

See, e.g., 70 FR 43,086 (proposed 

definition of ‘‘Rescue squad or 

ambulance crew member,’’ for 

codification at 28 CFR 32.3). 

Unfortunately, and despite the 

considerable interpretive authority 

granted to BJA by the Act (to say 

nothing of the deference owed to BJA 

under the rule in Chevron U.S.A. v. 

Natural Resources Defense Council, 467 

U.S. 837 (1984)), at least one judge has 

ignored BJA’s longstanding construction 

and erroneously concluded that the 

PSOB Act death benefit may be paid 

with respect to an individual 

(emergency medical technician trainee) 

who was neither ‘‘officially recognized 

or designated’’ nor a ‘‘public employee 

member’’ of a rescue squad or 

ambulance crew. Hillensbeck v. United 

States, 68 Fed. Cl. 62 (2005); 

Hillensbeck v. United States, 69 Fed. Cl. 

369 (2006). Notwithstanding this 

judicial ruling, the reasonability of 

BJA’s construction of the statute (and 

the error of the court’s conclusion) was 

strongly underscored by the January 5, 

2006, clarifying amendments to the 

PSOB Act, now codified at 42 U.S.C. 

3796a(7), which explicitly endorse 

BJA’s position by adding an express 

definition of ‘‘member of a rescue squad 

or ambulance crew’’ that requires that 

they be ‘‘officially recognized or 

designated public employee 

member[s].’’

Given the foregoing history of careful 

construction of the statute in the context 

of repeated statutory amendment and 

the handling of thousands of claims, it 

is not surprising that Representative 

Lamar Smith made the following 

observation on the floor of the House of 

Representatives in reference to DOJ 

Reauthorization Act section 1162 

(entitled ‘‘Clarification of Persons 

Eligible for Benefits under the Public 

Safety Officers’ Death Benefit 

Programs’’), which made these mostrecent amendments to the PSOB Act: 


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Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Rules and Regulations 46031 

The Bureau of Justice Assistance has 

acquired considerable expertise in the 

administration of the Public Safety Officers’

Benefits Act since its enactment in 1976, and 

courts have properly accorded the Bureau’s 

interpretations of the Act great deference. 

Among other things, H.R. 3402 clarifies 

statutory provisions relating to the 

requirements that ‘‘rescue squad or 

ambulance crew’’ members be public 

employees, and that ‘‘enforcement of the 

laws’’ refers to the criminal laws, by making 

the text conform more clearly to the 

legislative intention, which has been 

correctly reflected in the Bureau’s 

longstanding interpretation of the Act. 

These clarifying changes should not be 

understood to effect any substantive change 

in the Act, as interpreted by the Bureau. 

163 Cong. Rec. H12,125 (daily ed., Dec. 

17, 2005). These remarks—from a 

member of the House Judiciary 

Committee (which reported the bill)—

bear strong witness to the reasonability 

and soundness of BJA’s construction of 

the PSOB Act. 

II. Recent Amendments to the PSOB Act 

As discussed above, the DOJ 

Reauthorization Act made several 

clarifying and other changes to the 

PSOB Act. The term ‘‘member of a 

rescue squad or ambulance crew’’ is 

now defined as ‘‘an officially recognized 

or designated public employee member 

of a rescue squad or ambulance crew.’’

42 U.S.C. 3796b(7). In the definition of 

‘‘law enforcement officer,’’ the term 

‘‘enforcement of the laws’’ has been 

replaced with ‘‘enforcement of the 

criminal laws (including juvenile 

delinquency).’’ Id. 3796b(6). As 

described above, these two clarifying 

statutory amendments are consistent 

with the well-settled understanding of 

the underlying terms by BJA since their 

original enactment into law. Because of 

these statutory changes, the rules 

enunciated in the holdings of the 

following cases have been nullified or 

rendered moot: Hillensbeck v. United 

States, 68 Fed. Cl. 62 (2005); Hawkins 

v. United States, 68 Fed. Cl. 74 (2005); 

Cassella v. United States, 68 Fed. Cl. 

189 (2005); and Hillensbeck v. United 

States, 69 Fed. Cl. 369 (2006). 

Also as a result of these statutory 

changes, the final rule now contains 

definitions of several terms (e.g., 

‘‘officially recognized or designated 

public employee member of a squad or 

crew’’), and omits the proposed 

definition of ‘‘enforcement of the laws,’’

as the meaning specified in the 

proposed rule now is clear on the face 

of the Act itself. The DOJ 

Reauthorization Act also amended the 

PSOB Act to ensure that the pre-existing 

statutory limitation on payments to noncivilians refers to the individual who 

was injured or killed, and not to any 

potential beneficiaries. 42 U.S.C. 

3796a(5). For this reason, the final rule 

omits the language in the proposed rule 

that was designed to achieve this same 

result. Finally, the DOJ Reauthorization 

Act amended certain provisions of the 

PSOB Act regarding designation of 

beneficiaries when the officer dies 

without a spouse or eligible children. Id. 

3796(a)(4). This amendment removes 

the need for a one-year waiting period 

to ensure payment to the beneficiary of 

the officer’s ‘‘most recently executed life 

insurance policy,’’ and accordingly, BJA 

has amended the definition of this term 

and added other terms to conform to the 

statutory amendments. 

III. Hometown Heroes Provisions 

The implementation of the Hometown 

Heroes Act presented a difficult task 

because the statutory presumption 

created by that Act contains a number 

of undefined terms. Some commentators 

approved of the approach in the 

proposed rule, but others were 

dissatisfied with the proposed 

provisions, finding them too restrictive 

or difficult to apply, and expressing 

concerns about BJA’s implementation of 

the statutory presumption. After 

reviewing the comments, BJA is 

persuaded that the provisions in the 

proposed rule relating to the Hometown 

Heroes Act should be amended in order 

to avoid their being more restrictive 

than the statute. In making these 

amendments, BJA has adopted a much 

more conceptual approach than it did in 

the proposed rule; specifically, BJA has 

replaced its prior per-se rule approach 

involving enumerated risk factors, with 

a rule tied to the concept of causation. 

A discussion of amendments of 

particular note follows. 

Competent medical evidence to the 

contrary. One commentator opined that 

this term referred to ‘‘medical evidence 

[that] indicated that there was an 

intervening, non-duty-related factor or 

event which would have independently 

caused’’ the public safety officer’s heart 

attack or stroke. BJA essentially agrees 

with this comment, and had attempted 

to capture the basic thrust of this same 

notion in the definition of this term in 

the proposed rule. Accordingly, in the 

final rule, BJA adopts a revised 

definition: 

Competent medical evidence to contrary—

The presumption raised by the [Hometown 

Heroes Act provision] is overcome by 

competent medical evidence to the contrary, 

when evidence indicates to a degree of 

medical probability that circumstances other 

than any engagement or participation 

described in the [Hometown Heroes Act 

provision], considered in combination (as 

one circumstance) or alone, were a 

substantial factor in bringing the heart attack 

or stroke about. 

Complementing this definition is the 

term ‘‘circumstances other than 

engagement or participation,’’ which, in 

turn, is defined and does not include 

line of duty actions or activity; other 

definitions have been added to effect 

this new conceptual approach. 

Nonroutine stressful or strenuous 

physical activity. The term, as written in 

the Hometown Heroes Act, contains an 

ambiguity, which BJA resolved in the 

proposed rule after closely considering 

the floor statements of the Congressional 

sponsors of the bill that became the Act. 

Nonetheless, one commentator 

criticized BJA’s proposed definition of 

this term (‘‘ ‘nonroutine stressful 

physical activity’ or ‘non-routine 

strenuous physical activity’ ’’), opining 

that the term should be interpreted to 

mean, instead, ‘‘ ‘nonroutine stressful 

activity’ or ’strenuous physical 

activity.’ ’’ The commentator asserted 

that the legislative history had made it 

clear that the term should be so read, 

and quoted selectively from the floor 

statements of both sponsors of the bill 

(Rep. James Sensenbrenner and Sen. 

Patrick Leahy) to that effect. Despite the 

commentator’s assertion, the selections 

quoted do not actually resolve the 

ambiguity, and, in any event, the 

commentator appears to have 

overlooked the sentences (by the same 

speakers) immediately preceding the 

floor statements quoted, which do 

apparently resolve it, by summarily 

referring to the term ‘‘nonroutine 

stressful or strenuous physical activity’’

as ‘‘physical activity.’’ 149 Cong. Rec. 

H12,299 (daily ed., Nov. 21, 2003) 

(describing the concern of some 

Members of Congress had that the bill 

as originally drafted would ‘‘cover 

officers who did not engage in any 

physical activity, but merely happened 

to suffer a heart attack while at work’’

(emphasis added)); id. at S16,053 (Nov. 

25, 2003) (same). In their (nearlyidentical) floor statements, both 

Congressional sponsors refer to 

‘‘physical activity’’ alone—without 

qualification—as the target concept in 

the substitute amendment that inserted 

the term ‘‘nonroutine stressful or 

strenuous physical activity’’ into the bill 

specifically to allay the concerns of 

those Members of Congress: 

The substitute amendment would create a 

presumption that an officer who died as a 

direct and proximate result of a heart attack 

or stroke died as a direct and proximate 

result of a personal injury sustained in the 

line of duty if: (1) That officer participated 

in a training exercise that involved 

nonroutine stressful or strenuous physical 


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activity or responded to a situation and such 

participation or response involved 

nonroutine stressful or strenuous physical 

law enforcement, hazardous material 

response, emergency medical services, prison 

security, fire suppression, rescue, disaster 

relief or other emergency response activity; 

(2) that officer suffered a heart attack or 

stroke while engaging or within 24 hours of 

engaging in that physical activity; and (3) 

such presumption cannot be overcome by 

competent medical evidence. 

149 Cong. Rec. at H12,299 to H12,300 

(emphasis added); id. at S16,053 (same). 

Given the foregoing, BJA has made no 

change to the definition of this term. 

Retroactivity. A few commentators 

opined that the Hometown Heroes Act 

should apply retroactively. Despite 

BJA’s great sympathy for those who 

have lost loved ones to duty-related 

heart attacks or strokes, BJA has no 

authority to give retroactive effect to 

that Act by rule or regulation. See, e.g., 

Bice v. United States, 61 Fed. Cl. 420 

(2004). 

Training exercise. One commentator 

requested that the criteria for ‘‘training 

exercise’’ be amended to clarify that not 

all training exercises include 

simulations of actual emergencies or 

provoke a high level of alarm, fear, or 

anxiety; the commentator urged BJA to 

include training exercises that merely 

‘‘include physical training and 

exercise.’’ BJA believes that the 

commentator misunderstood the 

proposed rule. Under the proposed rule, 

training exercises that ‘‘[e]ntail an 

unusually-high level of physical 

exertion’’ (without reference to 

simulation of actual emergencies or 

provocation of high levels of alarm, fear, 

or anxiety) also are covered, if the other 

criteria in the rule are satisfied. For this 

reason, BJA has made no change here. 

24-hour window. One commentator 

expressed concern that it will be 

difficult to pinpoint the time when the 

24-hour window for engagement or 

participation in non-routine stressful or 

strenuous physical line-of-duty activity 

begins, and that the time-frame 

proposed in the rule was too restrictive. 

BJA agrees that the pinpointing the time 

well may be difficult in particular cases, 

but, as this time period is specified in 

the statute, it cannot be changed by rule. 

IV. Line of Duty Activity or Action and 

Line of Duty Injury 

Generally speaking, the first thing that 

BJA must ‘‘determine[]’’ in any PSOB 

death or disability claim is ‘‘Was the 

individual on whom the claim is based 

a public safety officer within the 

meaning of the PSOB Act and its 

implementing regulations?’’ or, put 

somewhat differently, ‘‘Did the 

individual possess the legal authority to 

act as a public safety officer such as to 

confer that status upon him?’’ Under the 

Act, 42 U.S.C. 3796(a) & (b), once BJA 

‘‘determines’’ that the individual did 

possess that status, the next thing BJA 

must ‘‘determine[]’’ is whether that 

officer died (or was permanently and 

totally disabled) in the ‘‘line of duty.’’

And just as a claim necessarily must fail 

if the individual did not possess the 

legal status of public safety officer, so it 

must fail if the death or injury did not 

occur in the ‘‘line of duty.’’ Given the 

signal importance of the ‘‘line of duty’’

concept to understanding the PSOB 

Program, it is unsurprising that the term 

generated several comments. 

One commentator opined that the 

bifurcated definitions of ‘‘line of duty 

activity or action’’ and ‘‘line of duty 

injury’’ in the proposed rule narrows the 

meaning of the single term ‘‘line of 

duty’’ in the current rule, and that the 

proposed rule appeared to fall short of 

the interpretation of ‘‘line of duty’’

given in Davis v. United States, 50 Fed. 

Cl. 192 (2001). BJA believes that the 

commentator has misunderstood the 

reasoning behind the bifurcation of the 

concept of ‘‘line of duty’’ into the two 

defined terms. Conceptually, the term 

‘‘line of duty’’ remains unchanged from 

the current rule to the final rule. 

At present, and under the final rule, 

the key issue in determining whether an 

individual (whom BJA has 

‘‘determine[d]’’ to be ‘‘a public safety 

officer’’) acted in the ‘‘line of duty’’ is 

whether he was performing activities or 

actions that he was authorized or 

obligated to perform as a public safety 

officer. For a public safety officer whose 

primary function is the relevant area of 

public safety activities defined by the 

PSOB Act (e.g., law enforcement, fire 

protection, emergency medical 

response), the definitions of ‘‘line of 

duty action or activity’’ and ‘‘line of 

duty injury’’ in the rule do not require 

that a public safety officer be engaged in 

any particular line of duty action in 

order to be considered as acting in the 

line of duty: What it does require, 

rather, is that the officer be performing 

an action or activity that he is 

‘‘authorized or obligated to perform by 

law, rule, regulation or condition of 

employment’’ as a public safety officer 

at the time of his injury, or that it be 

shown that his injury resulted from his 

status as a public safety officer (e.g., 

where a police officer (on or off-duty) is 

killed precisely because of his status as 

a police officer). For such ‘‘primary 

function’’ officers, it is presumed that, 

while they are ‘‘on the clock,’’ all of 

their authorized activities and actions 

are done in their capacity as public 

safety officers, and thus are ‘‘line of 

duty’’ actions or activities. In sharp 

contrast, for those who are not ‘‘primary 

function’’ officers (i.e., those whose 

primary functions are not public safety 

activities and actions covered by the 

PSOB Act), the rule does require that 

they actually be performing a public 

safety action or activity (e.g., law 

enforcement, fire protection, emergency 

medical response), at the time of the 

injury in order for it to be considered in 

the ‘‘line of duty.’’

Logically, it follows that the concept 

of ‘‘line of duty’’ is not limited only to 

activities and actions the public safety 

officer performs while ‘‘on the clock.’’

When an off-duty public safety officer 

responds to a situation with an action 

that he is authorized or obligated to 

perform as a public safety officer, he 

effectively goes ‘‘on duty.’’ The 

definitions of ‘‘line of duty action or 

activity’’ and ‘‘line of duty injury’’

articulate this well-settled notion of 

‘‘line of duty’’ and are consistent with 

the current rule and with the rulings of 

the courts. This understanding of ‘‘line 

of duty’’ has been consistently applied 

by BJA throughout the 30-year life of the 

PSOB program. In any event, in order to 

make it as clear as possible that line of 

duty injuries include those that result 

from the individual’s status as a public 

safety officer, BJA has included specific 

language to that effect in the definition 

of ‘‘line of duty injury’’ in the final rule. 

Authorized commuting. Two 

commentators questioned whether the 

new definition of ‘‘authorized 

commuting’’ was unduly narrow. One 

commentator posited that, although the 

PSOB Act does not cover all conceivable 

commuting injuries, neither does it or 

the term ‘‘line of duty’’ exclude all 

commuting injuries. BJA agrees, and the 

definition of ‘‘authorized commuting’’

in the proposed regulation is consistent 

with this understanding. The definition 

is based on the concept of ‘‘line of duty’’

under both the current and final rules: 

When a public safety officer is engaged 

in activities or actions that he is 

obligated or authorized to perform as a 

public safety officer, he is acting in the 

line of duty, or is, in effect, ‘‘on duty.’’

In general, under workers’

compensation law, injuries incurred 

while commuting to and from work are 

not necessarily regarded as occurring 

within the scope of employment, except 

under certain circumstances where it 

can be shown that there is a ‘‘ ‘sufficient 

nexus between the employment and the 

injury to conclude that it was a 

circumstance of employment.’ ’’ Russell, 

637 F.2d at 1265 (quoting Hicks v. 

General Motors, 238 N.W.2d 194, 196 

(Mich. Ct. App. 1975)). Analogously, in 

the case of a public safety officer’s 


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commuting to and from work, a 

‘‘sufficient nexus’’ between the 

circumstances and his duty as a public 

safety officer must be shown to establish 

that he was, in effect, ‘‘on duty,’’ and 

thus engaged in a ‘‘line of duty activity 

or action.’’ The definition of 

‘‘authorized commuting’’ sets out three 

particular circumstances that long have 

been recognized by BJA and the courts, 

where it can be shown that a ‘‘sufficient 

nexus’’ exists between his employment 

as a public safety officer and the injury: 

(1) The officer is responding to a 

particular fire, police or rescue 

emergency; (2) the officer is commuting 

to or from work in an agency vehicle; or 

(3) the officer is commuting to or from 

work in a personal vehicle that he is 

required to use for his work. One 

commentator questioned why the mode 

of transportation was the focus of this 

provision and whether ‘‘authorized 

commuting’’ would cover officers who 

walked to work or who used public 

transportation. The mode of 

transportation articulated in the 

exceptions is what gives rise to the 

‘‘nexus’’ between employment (i.e., 

duty) and the circumstances. Clearly, as 

discussed in the preceding discussion of 

the ‘‘line of duty’’ definition, whenever 

a public safety officer responds to an 

emergency with authorized action, he is 

‘‘on duty.’’ A public safety officer who 

is using an agency vehicle (or 

alternatively, using the vehicle that he 

is required to use in his work) is 

presumed rebuttably to be ‘‘on duty’’

while using the vehicle. In the case of 

officers who are commuting to or from 

work with other modes of 

transportation, the ordinary line of duty 

analysis would apply: Where it can be 

shown that they were injured while 

engaging in line of duty activities or 

actions, or that they sustained the injury 

as a result of their status as public safety 

officers, they would be considered as 

acting in the line of duty. 

V. Section-by-Section Analysis 

Section 32.2 Computation of Time 

One commentator expressed concern 

about the way in which ‘‘filing’’ is 

effected under this provision, and in 

particular, opined that the term 

‘‘actually received’’ was somewhat 

vague and could cause an unfair result 

for claimants if it were understood to 

refer strictly to the intended recipient 

(rather than his office). In response to 

this observation, BJA has amended this 

provision by specifying that a filing is 

deemed filed ‘‘on the day that is 

actually received at the office’’ of the 

receiving party. 

Section 32.3 Definitions 

Convincing evidence. One 

commentator opined that using the 

same word within a definition was 

inappropriate. BJA disagrees. The term 

‘‘clear and convincing evidence’’ is a 

legal term of art that articulates a 

specific and well-settled legal standard 

of proof that is higher than a 

‘‘preponderance of the evidence’’

standard but lower than a ‘‘beyond a 

reasonable doubt’’ standard. Black’s Law 

Dictionary 251 (6th ed. 1990) (‘‘That 

proof which results in reasonable 

certainty of the truth of the ultimate fact 

in controversy.’’). 

Crime. As two commentators aptly 

pointed out, although the term ‘‘crime’’

implicitly includes juvenile 

delinquency laws, clarifying language is 

needed to remove any ambiguity as to 

the point. BJA agrees. Accordingly, the 

definition of ‘‘crime’’ now includes the 

phrase ‘‘an act or omission punishable 

as a criminal misdemeanor or felony.’’

Firefighter. A number of firefighter 

associations questioned whether this 

definition, read together with the terms 

‘‘fire suppression,’’ ‘‘rescue squad or 

ambulance crew member,’’ and ‘‘line of 

duty activity or action,’’ would exclude 

some of the duties and tasks performed 

by firefighters. In this vein, one 

commentator proposed use of the term 

‘‘fire protection’’ in order to ensure 

inclusion of all such duties and tasks. 

Similarly, another commentator 

suggested that BJA consider the 

definition of ‘‘firefighter’’ contained in 

the Fair Labor Standards Act and 

reevaluate the definitions of 

‘‘firefighter’’ and ‘‘rescue squad crew 

member’’ as drafted in the proposed 

rule. BJA agrees substantially with these 

helpful comments and has adopted the 

term ‘‘fire protection,’’ defined to 

include suppression of fire, hazardousmaterial emergency response, and 

emergency medical service or rescue 

activity, and has made conforming 

changes in defining the terms 

‘‘hazardous-material response’’ and 

‘‘and emergency medical services,’’ as 

well as corresponding changes as 

necessary in other definitions. 

The president of a municipal fire 

marshals association also commented 

on this definition and requested that the 

term ‘‘fire marshal’’ be included to 

ensure coverage, pointing out that many 

fire marshals perform both law 

enforcement and firefighting duties, are 

certified peace officers, and also engage 

in hazardous materials mitigation. In 

considering this comment, BJA found 

that, according to the National 

Association of State Fire Marshals, fire 

marshal responsibilities vary 

considerably among jurisdictions, and 

range from regulatory responsibilities 

(some of which involve criminal law 

enforcement), to actual firefighting and 

hazardous material emergency response. 

Some fire marshals have a more 

regulatory role, for example, issuing 

rules and conducting inspections; others 

have the authority to issue criminal 

citations and enforce fire safety laws 

and regulations; while still others may 

not necessarily have the same authority 

as police officers. In light of this wide 

variation, BJA determined that the term 

‘‘fire marshal’’ does not lend itself to a 

clear definition. BJA also finds that it is 

unnecessary to define the term 

specifically in order for fire marshals to 

be covered under the PSOB Act in 

appropriate circumstances. A PSOB 

claim involving a fire marshal will be 

analyzed as it always has been by the 

PSOB program: Where it can be shown 

that a fire marshal had the authority to 

engage in ‘‘fire protection’’ (as defined 

in the final rule and discussed above) or 

law enforcement activities, he would be 

considered a ‘‘public safety officer’’

under the Act; where it cannot be 

shown, he would not be. As with all 

PSOB claims, once the threshold 

determination of the individual’s status 

as a public safety officer is made, the 

second inquiry (relating to line of duty) 

would follow, as to whether his fire 

protection or law enforcement duties 

were primary or secondary duties. In 

any event, as a result of the foregoing 

regulatory changes, the rule enunciated 

in the holding of Messick ex rel. Kangas 

v. United States, 70 Fed. Cl. 319 (2006), 

appeal filed, No. 06–5087 (Fed. Cir. May 

26, 2006) has been nullified or rendered 

moot. 

Gross negligence. One commentator 

questioned whether the gross negligence 

provision would exclude first 

responders who did not wear protective 

clothing while participating in the 

breakdown of clandestine drug labs, 

because their employers either did not 

provide the clothing, or did not mandate 

that it be worn, and as a result, were 

exposed to chemicals that lead to 

terminal illness. The analysis of cases 

under the ‘‘gross negligence’’ provision 

necessarily would entail consideration 

of many different evidentiary matters, 

and as such, the question does not lend 

itself productively to being answered 

hypothetically. As a general matter, it is 

important to point out that 

‘‘occupational diseases’’ have always 

been excluded as injuries under the 

PSOB Act. See, e.g., Smykowski v. 

United States, 647 F.2d 1103, 1105 & 

n.6 (Ct. Cl. 1981). This is because the 

PSOB Act requires that in order to be 


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46034 Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Rules and Regulations 

eligible, the claimant must show that 

the public safety officer died or was 

disabled as ‘‘direct and proximate’’ or 

‘‘direct’’ result of an injury. Evidence of 

generalized exposure to chemicals, 

without more, is not sufficient to show 

direct causation. The PSOB program has 

paid claims, however, where claimants 

have shown with preponderant 

evidence (i.e., evidence showing that it 

is more likely than not) the required 

causal connection between the public 

safety officer’s illness or death and the 

exposure to chemicals while on duty. 

Intentional action or activity. One 

commentator expressed concern that the 

definitions of ‘‘intention,’’ ‘‘intentional 

action or activity,’’ and ‘‘intentional 

misconduct,’’ which implement 42 

U.S.C. 3796a, could result in 

disqualifying a public safety officer 

whose intentional line of duty acts were 

a substantial factor in causing his death 

or catastrophic injury. In response to 

this concern, BJA has amended the 

definition of ‘‘intentional action or 

activity’’ specifically to exclude line of 

duty actions or activities. 

Instrumentality. A private corporate 

provider of fire and rescue services 

expressed concerns about the 

requirement in the definition of 

‘‘instrumentality’’ of a public agency 

that an entity share sovereign immunity 

with a public agency, or that the 

relevant agency have tort liability for the 

acts and omissions of the entity. In 

contrast to these concerns, another 

commentator expressed approval of the 

thrust of this definition. The PSOB Act 

dictates that a ‘‘public safety officer’’

must be ‘‘an individual serving a public 

agency in an official capacity,’’ which 

means that the individual must be 

cloaked with the public agency’s 

authority (i.e., must be authorized, 

recognized or designated as a functional 

part of a public agency), and his acts 

and omissions must be legally 

recognized as those of the public 

agency. It follows, then, that in order for 

an entity to be considered an 

‘‘instrumentality’’ of a public agency, its 

acts and omissions must be similarly 

legally recognized by a public agency by 

cloaking the entity’s acts and omissions 

with its sovereign immunity or 

assuming tort liability for them. This is 

consistent with the Act. 

Official capacity. One commentator 

pointed out that it was somewhat 

unclear in the definition of ‘‘official 

capacity’’ who was supposed to 

authorize, recognize, or designate the 

individual as functionally within or part 

of an agency. In response, BJA has 

included language to indicate that these 

actions are to be taken by the public 

agency itself. The definition of this term 

incorporates a concept that has been 

consistently applied by BJA throughout 

the 30-year life of the PSOB program, 

and was expressly upheld by the 

Federal Circuit in Chacon v. United 

States, 48 F.3d 508, 512–513 (Fed. Cir. 

1995). The proposed rule was (and the 

final rule is) expressly intended to 

codify this holding in Chacon. Related 

to this definition are the definitions of 

‘‘department or agency,’’ ‘‘employee,’’

‘‘functionally within or part of,’’

‘‘instrumentality,’’ and ‘‘official duties,’’

which are consonant with the rule 

enunciated in the holding of LaBare v. 

United States, lll Fed. Cl. lll 

(2006), and which, all told (and in 

combination with other changes made 

here), nullify or render moot the rule 

enunciated in the holding of Groff v. 

United States, lll Fed. Cl. lll 

(2006). 

Parent-child relationship. In 

reviewing the proposed rule, BJA 

observed that this term as written was 

more restrictive than the statute in that 

it could appear that the relationship 

could be demonstrated only by the 

evidence prescribed in the definition. 

To avoid this result, BJA has greatly 

simplified the rule by providing only 

that the relationship be shown through 

convincing evidence, without specifying 

the particular evidence required. As a 

result of this change, BJA will consider 

any proper evidence, which may consist 

of such things as a written 

acknowledgment of parenthood; a 

judicial decree ordering child support; a 

public or religious record naming the 

public safety officer as parent (with the 

officer’s consent); affidavits (from 

persons without direct or indirect 

financial interest in a PSOB claim) 

attesting that the child was accepted by 

the officer as his child; records of a 

public agency or a school (with the 

officer’s consent); the claiming of the 

child as a dependent on the officer’s tax 

return; or other credible evidence 

indicating acceptance of the individual 

as a child by the public safety officer. 

An analogous change was made in the 

definition of ‘‘child-parent 

relationship.’’

Rescue activity and rescue squad or 

ambulance crew. In response to the 

point made by one commentator that the 

proposed regulation, unlike the current 

regulation, did not contain a definition 

of ‘‘rescue,’’ BJA has included within 

the final rule (‘‘rescue activity’’) the 

substance of that definition in the 

current rule, and made the 

corresponding changes to the definition 

of ‘‘rescue squad or ambulance crew.’’

Terrorist attack. There were several 

comments relating to the definition of 

‘‘terrorist attack.’’ First, the comments 

expressed concern about the 

requirement that the BJA Director make 

a determination that a terrorist attack 

was one of an ‘‘extraordinary or 

cataclysmic character so as to make 

particularized factual finding 

impossible, impractical, or unduly 

burdensome,’’ and opined that the 

Director’s determination could ‘‘trump’’

the determination by the Attorney 

General that such an event was a 

terrorist act. Simply put, the comments 

appear to spring from the mistaken 

belief that the term ‘‘terrorist attack’’ is 

synonymous with ‘‘terrorist act.’’

Additionally, the comments expressed 

concern about coverage of public safety 

officers who prevent or investigate 

aspects of terrorism and suggest that the 

regulations be expanded to ensure such 

coverage. There is no applicable 

statutory definition of the term ‘‘terrorist 

attack,’’ which was enacted into law 

here as section 611 of the USA 

PATRIOT Act (not an amendment to the 

PSOB Act, but codified at 42 U.S.C. 

3796c–1). But on its face, the term fairly 

may be understood to mean an ‘‘act of 

terrorism’’ (which is a term defined in 

the USA PATRIOT Act) that is in the 

nature of an ‘‘attack.’’ For this reason, 

the proposed rule is written in terms of 

an event that is ‘‘extraordinary’’ or 

‘‘cataclysmic’’—in short, an event that 

approximates those that gave rise to the 

enactment of section 611. The notion 

informing the certification process 

described at section 611 is avoidance of 

potentially enormous administrative 

burdens for claimants that could lead to 

unnecessary delays of benefit payments; 

the provision, in principle, is not 

intended to add another dimension of 

coverage for public safety officers. 

Nonetheless, BJA agrees with the 

commentator that determination of what 

constitutes a ‘‘terrorist attack’’ should be 

left to the Attorney General and those to 

whom he may delegate his authority. 

For this reason, BJA has amended the 

definition of ‘‘terrorist attack,’’ omitting 

the language requiring the BJA 

Director’s determination. With regard to 

coverage of prevention and investigation 

of terrorist acts, section 611 itself 

requires such coverage, and nothing in 

the proposed rule was intended to 

prevent it (or lawfully could have done 

so). Insofar as a public safety officer acts 

in the line of duty, whether preventing, 

responding to, or investigating a 

terrorist attack, he would be covered 

under section 611. Nonetheless, in order 

that there be no question on the point, 

BJA has added clarifying language to 

this effect in the final rule. 

Voluntary intoxication. One 

commentator questioned whether the 


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regime set out in the definition of 

‘‘voluntary intoxication’’ might preclude 

valid claims involving alcohol 

consumption. The PSOB Act clearly sets 

out the legal limits with respect to 

alcohol and the rule cannot reach 

beyond what is required by statute. 

Nonetheless, further to this 

commentator’s question, BJA has made 

some clarifying changes, relating to 

intoxication, in the final rule. 

Section 32.5 Evidence 

One commentator expressed concerns 

about the evidence provisions. First, the 

commentator objected to the use of the 

term ‘‘preponderance of the evidence’’

proposed in sec. 32.5(a), arguing that the 

evidentiary standard of ‘‘preponderance 

of the evidence’’ required for claimants 

to make successful claims places a 

greater burden of proof on them than in 

the current rule. In the commentator’s 

view, BJA is replacing the ‘‘reasonable 

doubt’’ provision in the current 

regulations with a ‘‘new and higher 

evidentiary standard.’’ The 

commentator clearly misunderstands 

this provision in the current rule, as 

well as the application of the 

‘‘preponderance of the evidence’’

standard with regard to PSOB claims. 

First, the current ‘‘reasonable doubt’’

provision does not apply to the 

claimant’s burden of proof; i.e., it does 

not require the claimant to provide 

evidence rising to the level of 

‘‘reasonable doubt.’’ The provision in 

the current rule, rather, is merely an 

evidentiary mechanism that assists the 

decision-maker in weighing factual 

evidence arising from the circumstances 

of a public safety officer’s death or total 

and permanent disability. 

Unfortunately, this provision has 

generated no end of misunderstanding, 

confusion, and misapplication among 

claimants, and as well as disagreement 

in the courts. See, e.g., Tafoya v. United 

States, 8 Cl. Ct. 256 (1985); Demutiis v. 

United States, 49 Fed. Cl. 81 (2000), 

aff’d in part, 291 F.3d 1373 (Fed. Cir. 

2002); Bice v. United States, 61 Fed. Cl. 

420 (2004). For this reason, BJA 

proposed the removal of this provision 

and the articulation of the standard of 

proof as preponderant evidence (also 

known as ‘‘more likely than not,’’ cf. 

Black’s Law Dictionary 1182 (6th ed. 

1990)). This commonly applied 

standard is the same standard BJA has 

used as a default matter in its 

application of the evidentiary 

provisions in the current rule. 

Nonetheless, the commentator’s 

comment has persuaded BJA that the 

term ‘‘preponderance of the evidence’’

may be daunting to some members of 

the public, so it has rephrased the 

standard as ‘‘more likely than not’’ in 

the final rule. Second, the commentator 

objects to the language of § 32.5(e), 

which provides that certifications under 

42 U.S.C. 3796c–1 ‘‘shall constitute 

prima facie evidence * * * of the 

public agency’s acknowledgment that 

public safety officer, as of the event date 

was * * * serving the agency in an 

official capacity,’’ alleging that this 

could exclude public safety officers who 

heroically respond to events outside of 

their jurisdiction, or without express 

authorization of their agency. The 

proposed rule requires nothing more 

than what is required by 42 U.S.C. 

3796c–1, which dictates what must be 

certified, and BJA has no authority to 

change those requirements. 

Section 32.7 Fees for Representative 

Services 

One commentator made the excellent 

suggestion that the rate of payment for 

representative services in PSOB claims 

should be linked to the Equal Access to 

Justice Act (‘‘EAJA’’). BJA has 

consistently used the EAJA as its guide 

in determining attorneys fees, and 

agrees that specifying this in the rule 

itself will better inform claimants and 

their representatives with regard to 

these payments. 

Section 32.12 Time for Filing a Claim 

One commentator asked how the 

thirty-three (33) day time frame 

proposed for certain filings (but not for 

the initial filing of claims themselves) 

was arrived upon by BJA. BJA started 

from the premise of a standard thirtyday period and then added three more 

days (the time period customarily given 

to parties in civil litigation, under the 

so-called ‘‘Mailbox Rule.’’) See, e.g., 

Fed. R. Civ. P. 6(e). 

Section 32.13 Definitions 

Beneficiary of a life insurance policy 

of a public safety officer. One 

commentator remarked about the moral 

difficulty occasioned by cases where it 

is determined that only one of the 

officer’s parents is the ‘‘the individual 

designated by such officer as beneficiary 

under such officer’s most recently 

executed life insurance policy,’’ see 42 

U.S.C. 3796(a)(4), and only that parent 

receives payment because of that 

designation. The commentator 

requested that BJA consider a way to 

allow each parent to receive 50% of the 

benefit in these cases. The PSOB Act 

itself dictates that designated 

beneficiaries are to receive benefits 

according to the terms of the 

designation, and dictates that those 

beneficiaries are to receive priority over 

parents; this statutorily compelled result 

cannot be changed by rule. 

Additionally, the commentator 

requested that the one-year waiting 

period currently required of claimants 

who are life-insurance beneficiaries be 

omitted. Prior to the enactment of the 

DOJ Reauthorization Act, it was not 

immediately possible to determine the 

universe of insurance policies in a 

claim, and, in order to avoid the risk of 

erroneous and/or double payment, BJA 

required a one-year period to pass in 

order to ensure that no other life 

insurance policy existed that was more 

‘‘recently executed.’’ The DOJ 

Reauthorization Act amended 42 U.S.C. 

3796(a)(4) to require that the qualifying 

life insurance policy be ‘‘on file at the 

time of death with [the officer’s] public 

safety agency,’’ thereby obviating the 

need for a one-year waiting period. 

Accordingly, BJA has made appropriate 

conforming changes that are contained 

in the final rule. 

Section 32.15 Prerequisite Certification 

One commentator questions the 

reasoning behind this requirement, as 

status as a public safety officer and line 

of duty determinations by the 

decedent’s employing agency are legal 

determinations. The commentator 

appears to misunderstand the provision, 

which is aimed at establishing various 

things as factual, not legal, matters; i.e., 

to establish how the employing agency 

regarded the public safety officer at the 

time of fatal injury. Certain facts, key to 

entitlement to benefits under the statute, 

are particularly within the ken of the 

employing public agencies, and benefits 

are not payable under the PSOB Act 

when the employing public agency itself 

has refused to pay analogous benefits on 

the ground that the individual was not 

a public safety officer, or was not 

serving the public agency in an official 

capacity at the time of the fatal injury, 

or was not injured in the line of duty, 

as the case may be. For this reason, BJA 

has not adopted any change here (or in 

sec. 32.25, an analogous provision) in 

response to this comment. 

Section 32.28 Reconsideration 

One commentator opined that the 

three-year period for the staying of a 

reconsideration of a disability claim was 

an insufficient amount of time for the 

effects of a catastrophic injury to fully 

develop. The commentator has 

misunderstood the regulation. The timeframe is actually nine years because, 

upon conclusion of the stay, the 

claimant has six additional years to file 

evidence with the PSOB Office in 

support of his claimed disability. In the 

final rule, BJA has amended this 

provision to clarify this point. 


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Section 32.33 Definitions 

After further review of the definitions 

proposed in this section, BJA has 

concluded that several changes are 

warranted—first, to clarify analytical 

distinctions that are commonly applied 

in the program but were not apparent 

(or not easily apparent) on the face of 

the proposed rule (e.g., there are two 

different kinds of education benefit 

‘‘claims’’: ‘‘threshold claims’’ and 

‘‘financial claims’’; definitions of 

‘‘eligible dependent,’’ ‘‘grading period’’), 

thus making the final rule easier for 

claimants to use; and second, to correct 

proposed language that would or might 

have had the unintentional effect of 

making the rule more restrictive or 

limiting than the statute (e.g., the 

definitions of ‘‘child of eligible public 

safety officer,’’ ‘‘dependent,’’

‘‘educational expenses,’’ ‘‘eligible 

dependent,’’ ‘‘spouse of an eligible 

public safety officer at the time of death 

or on the date of a totally and 

permanently disabling injury,’’ ‘‘tax 

year’’). 

Section 32.36 Payment and 

Repayment 

Additional internal review of the 

proposed rule leads BJA to change the 

proposed provisions relating to financial 

need so as to clarify their operation in 

much greater detail and thus to ensure 

their conformity to the ‘‘sliding scale’’

requirements of the statute. 

Additionally, a provision in this section 

is being changed to clarify that the 

circumstances under which repayment 

to the United States may be warranted 

are more limited than was apparent on 

the face of the proposed rule. 

Section 32.45 Hearings 

In response to one commentator’s 

recommendation that witnesses be 

sworn and sequestered, BJA has 

amended the final rule here and in 

section 32.5(c) to adopt certain 

provisions of the Federal Rules of 

Evidence (over and above those already 

prescribed in the proposed rule) and to 

include an express provision requiring 

the hearing officer to exclude witnesses 

from hearings while others are giving 

testimony (except for the claimant or 

any person whose presence is shown by 

the claimant to be essential to 

presentation of his claim). Another 

commentator questioned whether this 

section permits a record review of a 

claim (i.e., a review without a hearing). 

BJA responds that (in the event a 

claimant does not request a hearing) a 

record review, supplemented with any 

evidence the hearing officer may 

require, is precisely the means by which 

a hearing officer ordinarily would 

determine a claim. In furtherance of this 

point, BJA has made amendments, 

contained in the final rule, that make 

express the determining official’s 

authority to require evidence. 

II. Regulatory Certifications 

Regulatory Flexibility Act 

The Office of Justice Programs, in 

accordance with the Regulatory 

Flexibility Act (5 U.S.C. 605(b)), has 

reviewed this regulation and by 

approving it certifies that this regulation 

will not have a significant economic 

impact on a substantial number of small 

entities for the following reasons: This 

final rule addresses Federal agency 

procedures; furthermore, this final rule 

makes amendments to clarify existing 

regulations and agency practice 

concerning death, disability, and 

education payments and assistance to 

eligible public safety officers and their 

survivors and does nothing to increase 

the financial burden on any small 

entities. 

Executive Order 12866 

This final rule has been drafted and 

reviewed in accordance with Executive 

Order No. 12866 (Regulatory Planning 

and Review), sec. 1(b), Principles of 

Regulation. The costs of implementing 

this final rule are minimal. Claimants 

must complete and submit no more than 

four forms; a ‘‘Claim for Death 

Benefits,’’ OMB Form No. 1121–0024; a 

‘‘Report of Public Safety Officers’

Death,’’ OMB Form No. 1121–0025; a 

‘‘Report of Public Safety Officers’

Permanent and Total Disability,’’ OMB 

Form No. 1121–0166; an ‘‘Application 

for Public Safety Officers’ Educational 

Assistance (42 U.S.C. 3796d),’’ OMB 

Form No. 1121–0220; and a ‘‘Consent to 

Release Information’’ pursuant to 5 

U.S.C. 552a(b); and supply adequate 

documentation concerning the public 

safety officer’s injury. The only costs to 

OJP consist of appropriated funds. The 

benefits of the final rule far exceed the 

costs. The amendments clarify the 

preexisting regulations and provide 

coverage for chaplains, life insurance 

and death beneficiaries, and the 

survivors of certain heart attack and 

stroke victims. 

The Office of Justice Programs has 

determined that this final rule is a 

‘‘significant regulatory action’’ under 

Executive Order No. 12866 (Regulatory 

Planning and Review), sec. 3(f), and 

accordingly this final rule has been 

reviewed by the Office of Management 

and Budget. 

Executive Order 13132 

This final rule will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on 

distribution of power and 

responsibilities among the various 

levels of government. The PSOB Act 

provides benefits to individuals and 

does not impose any special or unique 

requirements on States or localities. 

Therefore, in accordance with Executive 

Order No. 13132, it is determined that 

this final rule does not have sufficient 

federalism implications to warrant the 

preparation of a Federalism Assessment. 

Executive Order 12988—Civil Justice 

Reform 

This final rule meets the applicable 

standards set forth in sections 3(a) & 

(b)(2) of Executive Order No. 12988. 

Unfunded Mandates Reform Act of 1995 

This final rule will not result in the 

expenditure by State, local and tribal 

governments, in the aggregate, or by the 

private sector, of $100,000,000 or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. The PSOB Act is a federal 

benefits program that provides benefits 

directly to qualifying individuals. 

Therefore, no actions were deemed 

necessary under the provisions of the 

Unfunded Mandates Reform Act of 

1995. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This final rule is not a major rule as 

defined by section 804 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996. This final rule will 

not result in an annual effect on the 

economy of $100,000,000 or more; a 

major increase in costs or prices; or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

Paperwork Reduction Act 

The collection of information 

requirements contained in this final rule 

have been submitted to and approved by 

OMB, in accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501, 

et seq.). Claimants seeking benefits 

under the PSOB Act variously must 

complete and return up to three of four 

OMB-approved forms: a ‘‘Claim for 

Death Benefits,’’ OMB Form No. 1121–

0024; a ‘‘Report of Public Safety 

Officers’ Death,’’ OMB Form No. 1121–

0025; a ‘‘Report of Public Safety 


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Officers’ Permanent and Total 

Disability,’’ OMB Form No. 1121–0166; 

and an ‘‘Application for Public Safety 

Officers’ Educational Assistance (42 

U.S.C. 3796d),’’ OMB Form No. 1121–

0220. 

List of Subjects in 28 CFR Part 32 

Administrative practice and 

procedure, Claims, Disability benefits, 

Education, Emergency medical services, 

Firefighters, Law enforcement officers, 

Reporting and recordkeeping 

requirements, Rescue squad. 

■ Accordingly, for the reasons set forth 

in the preamble, part 32 of chapter I of 

Title 28 of the Code of Federal 

Regulations is revised to read as follows: 

PART 32—PUBLIC SAFETY OFFICERS’

DEATH, DISABILITY, AND 

EDUCATIONAL ASSISTANCE BENEFIT 

CLAIMS 

Sec. 

32.0 Scope of part. 

Subpart A—General Provisions 

32.1 Scope of subpart. 

32.2 Computation of time; filing. 

32.3 Definitions. 

32.4 Terms; construction, severability. 

32.5 Evidence. 

32.6 Payment and repayment. 

32.7 Fees for representative services. 

32.8 Exhaustion of administrative remedies. 

Subpart B—Death Benefit Claims 

32.11 Scope of subpart. 

32.12 Time for filing claim. 

32.13 Definitions. 

32.14 PSOB Office determination. 

32.15 Prerequisite certification. 

32.16 Payment. 

32.17 Request for Hearing Officer 

determination. 

Subpart C—Disability Benefit Claims 

32.21 Scope of subpart. 

32.22 Time for filing claim. 

32.23 Definitions. 

32.24 PSOB Office determination. 

32.25 Prerequisite certification. 

32.26 Payment. 

32.27 Motion for reconsideration of 

negative disability finding. 

32.28 Reconsideration of negative disability 

finding. 

32.29 Request for Hearing Officer 

determination. 

Subpart D—Educational Assistance Benefit 

Claims 

32.31 Scope of subpart. 

32.32 Time for filing claim. 

32.33 Definitions. 

32.34 PSOB Office determination. 

32.35 Disqualification. 

32.36 Payment and repayment. 

32.37 Request for Hearing Officer 

determination. 

Subpart E—Hearing Officer Determinations 

32.41 Scope of subpart. 

32.42 Time for filing request for 

determination. 

32.43 Appointment and assignment of 

Hearing Officers. 

32.44 Hearing Officer determination. 

32.45 Hearings. 

32.46 Director appeal. 

Subpart F—Director Appeals & Reviews 

32.51 Scope of subpart. 

32.52 Time for filing Director appeal. 

32.53 Review. 

32.54 Director determination. 

32.55 Judicial appeal. 

Authority: Public Safety Officers’ Benefits 

Act of 1976 (42 U.S.C. ch. 46, subch. 12); 

Public Law 107–37; USA PATRIOT Act, sec. 

611 (42 U.S.C. 3796c–1). 

§ 32.0 Scope of part. 

This part implements the Act. 

Subpart A—General Provisions 

§ 32.1 Scope of subpart. 

This subpart contains provisions 

generally applicable to this part. 

§ 32.2 Computation of time; filing. 

(a) In computing any period of time 

prescribed or allowed, the day of the 

act, event, or default from which the 

designated period of time begins to run 

shall not be included. The last day of 

the period so computed shall be 

included, unless it is a Saturday, a 

Sunday, or a federal legal holiday, or, 

when the act to be done is a filing with 

the PSOB Office, a day on which 

weather or other conditions have caused 

that Office to be closed or inaccessible, 

in which event the period runs until the 

end of the next day that is not one of 

the aforedescribed days. 

(b) A filing is deemed filed with the 

PSOB Office, a Hearing Officer, the 

Director, or any other OJP office, 

-officer, -employee, or -agent, only on 

the day that it actually is received at the 

office of the same. When a filing is 

prescribed to be filed with more than 

one of the foregoing, it shall be deemed 

filed as of the day the last such one so 

receives it. 

(c) Notice is served by the PSOB 

Office upon an individual on the day 

that it is—

(1) Mailed, by U.S. mail, addressed to 

the individual (or to his representative) 

at his (or his representative’s) last 

address known to such Office; 

(2) Delivered to a courier or other 

delivery service, addressed to the 

individual (or to his representative) at 

his (or his representative’s) last address 

known to such Office; or 

(3) Sent by electronic means such as 

telefacsimile or electronic mail, 

addressed to the individual (or to his 

representative) at his (or his 

representative’s) last telefacsimile 

number or electronic-mail address, or 

other electronic address, known to such 

Office. 

(d) In the event of withdrawal or 

abandonment of a filing, the time 

periods prescribed for the filing thereof 

shall not be tolled, unless, for good 

cause shown, the Director grants a 

waiver. 

(e) No claim may be filed (or 

approved) under the Act, at 42 U.S.C. 

3796(a) or (b), with respect to an injury, 

if a claim under the Act, at 42 U.S.C. 

3796c–1 or Public Law 107–37, has been 

approved, with respect to the same 

injury. 

(f) No claim may be filed (or 

approved) under the Act, at 42 U.S.C. 

3796c–1 or Public Law 107–37, with 

respect to an injury, if a claim under the 

Act, at 42 U.S.C. 3796(a) or (b), has been 

approved, with respect to the same 

injury. 

§ 32.3 Definitions. 

Act means the Public Safety Officers’

Benefits Act of 1976 (generally codified 

at 42 U.S.C. 3796, et seq.; part L of title 

I of the Omnibus Crime Control and 

Safe Streets Act of 1968) (including 

(uncodified) section 5 thereof (rule of 

construction and severability)), as 

applicable according to its effective date 

and those of its various amendments 

(e.g., Sept. 29, 1976 (deaths of State and 

local law enforcement officers and 

firefighters); Jan. 1, 1978 (educational 

assistance); Oct. 1, 1984 (deaths of 

federal law enforcement officers and 

firefighters); Oct. 18, 1986 (deaths of 

rescue squad and ambulance crew 

members); Nov. 29, 1990 (disabilities); 

Oct. 30, 2000 (disaster relief workers); 

Sept. 11, 2001 (chaplains and insurance 

beneficiaries); Dec. 15, 2003 (certain 

heart attacks and strokes); and Apr. 5, 

2006 (designated beneficiaries)); and 

also includes Public Law 107–37 and 

sections 611 and 612 of the USA 

PATRIOT Act (all three of which relate 

to payment of benefits, described under 

subpart 1 of such part L, in connection 

with terrorist attacks). 

Adopted child—An individual is an 

adopted child of a public safety officer 

only if—

(1) The individual is legally adopted 

by the officer; or 

(2) As of the injury date, and not 

being a stepchild, the individual was—

(i) Known by the officer not to be his 

biological first-generation offspring; and 

(ii) After the officer obtained such 

knowledge, in a parent-child 

relationship with him. 

Authorized commuting means travel 

by a public safety officer—


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(1) In the course of actually 

responding to a fire, rescue, or police 

emergency; or 

(2) Between home and work (at a situs 

authorized or required by the public 

agency he serves)—

(i) Using a vehicle provided by such 

agency, pursuant to a requirement or 

authorization by such agency that he 

use the same for commuting; or 

(ii) Using a vehicle not provided by 

such agency, pursuant to a requirement 

by such agency that he use the same for 

work. 

BJA means the Bureau of Justice 

Assistance, OJP. 

Cause—A death, injury, or disability 

is caused by intentional misconduct if—

(1) The misconduct is a substantial 

factor in bringing it about; and 

(2) It is a reasonably foreseeable result 

of the misconduct. 

Chaplain means a clergyman, or other 

individual trained in pastoral 

counseling, who meets the definition 

provided in the Act, at 42 U.S.C. 

3796b(2). 

Child of a public safety officer means 

an individual—

(1) Who—

(i) Meets the definition provided in 

the Act, at 42 U.S.C. 3796b(3), in any 

claim—

(A) Arising from the public safety 

officer’s death, in which the death was 

simultaneous (or practically 

simultaneous) with the injury; or 

(B) Filed after the public safety 

officer’s death, in which the claimant is 

the officer’s—

(1) Biological child, born after the 

injury date; 

(2) Adopted child, adopted by him 

after the injury date; or 

(3) Stepchild, pursuant to a marriage 

entered into by him after the injury date; 

or 

(ii) In any claim not described in 

paragraph (1)(i) of this definition—

(A) Meets (as of the injury date) the 

definition provided in the Act, at 42 

U.S.C. 3796b(3), mutatis mutandis (i.e., 

with ‘‘deceased’’ and ‘‘death’’ being 

substituted, respectively, by ‘‘deceased 

or disabled’’ and ‘‘injury’’); or 

(B) Having been born after the injury 

date, is described in paragraph 

(1)(i)(B)(1), (2), or (3) of this definition; 

and 

(2) With respect to whom the public 

safety officer’s parental rights have not 

been terminated, as of the injury date. 

Convincing evidence means clear and 

convincing evidence. 

Crime means an act or omission 

punishable as a criminal misdemeanor 

or felony. 

Criminal laws means that body of law 

that declares what acts or omissions are 

crimes and prescribes the punishment 

that may be imposed for the same. 

Department or agency—An entity is a 

department or agency within the 

meaning of the Act, at 42 U.S.C. 

3796b(8), and this part, only if the entity 

is—

(1) A court; 

(2) An agency described in the Act, at 

42 U.S.C. 3796b(9)(B) or (C); or 

(3) Otherwise a public entity—

(i) That is legally an express part of 

the internal organizational structure of 

the relevant government; 

(ii) That has no legal existence 

independent of such government; and 

(iii) Whose obligations, acts, 

omissions, officers, and employees are 

legally those of such government. 

Determination means the approval or 

denial of a claim (including an 

affirmance or reversal pursuant to a 

motion for reconsideration under 

§ 32.27), or the determination described 

in the Act, at 42 U.S.C. 3796(c). 

Director means the Director of BJA. 

Direct and proximate result of an 

injury—Except as may be provided in 

the Act, at 42 U.S.C. 3796(k), a death or 

disability results directly and 

proximately from an injury if the injury 

is a substantial factor in bringing it 

about. 

Disaster relief activity means activity 

or an action encompassed within the 

duties described in the Act, at 42 U.S.C. 

3796b(9)(B) or (C). 

Disaster relief worker means any 

individual who meets the definition 

provided in the Act, at 42 U.S.C. 

3796b(9)(B) or (C). 

Disturbance includes any significant 

and negative alteration, any significant 

negative deviation from the objectively 

normal, or any significant deterioration. 

Divorce means a legally-valid divorce 

from the bond of wedlock (i.e., the bond 

of marriage), except that, 

notwithstanding any other provision of 

law, a spouse (or purported spouse) of 

a living individual shall be considered 

to be divorced from that individual 

within the meaning of this definition if, 

subsequent to his marriage (or 

purported marriage) to that individual, 

the spouse (or purported spouse)—

(1) Holds himself out as being 

divorced from, or not being married to, 

the individual; 

(2) Holds himself out as being married 

to another individual; or 

(3) Was a party to a ceremony 

purported by the parties thereto to be a 

marriage between the spouse (or 

purported spouse) and another 

individual. 

Drugs or other substances means 

controlled substances within the 

meaning of the drug control and 

enforcement laws, at 21 U.S.C. 802(6). 

Educational/academic institution 

means an institution whose primary 

purpose is educational or academic 

learning. 

Eligible payee means—

(1) A beneficiary described in the Act, 

at 42 U.S.C. 3796(a), with respect to a 

claim under subpart B of this part; or 

(2) A beneficiary described in the Act, 

at 42 U.S.C. 3796(b), with respect to a 

claim under subpart C of this part. 

Emergency medical services means—

(1) Provision of first-response 

emergency medical care (other than in 

a permanent medical-care facility); or 

(2) Transportation of persons in 

medical distress (or under emergency 

conditions) to medical-care facilities. 

Employed by a public agency—A 

public safety officer is employed, within 

the meaning of the Act, at 42 U.S.C. 

3796c–1 or Public Law 107–37, by a 

public agency, when he—

(1) Is employed by the agency in a 

civilian capacity; and 

(2) Is—

(i) Serving the agency in an official 

capacity (with respect to officers of any 

kind but disaster relief workers); or 

(ii) Performing official duties as 

described in the Act, at 42 U.S.C. 

3796b(9)(B) or (C) (with respect to 

disaster relief workers). 

Employee does not include—

(1) Any independent contractor; or 

(2) Any individual who is not eligible 

to receive death or disability benefits 

from the purported employer on the 

same basis as a regular employee of 

such employer would. 

Filing means any claim, request, 

motion, election, petition, or appeal, 

and any item or matter (e.g., evidence, 

certifications, authorizations, waivers, 

legal arguments, or lists) that is, or may 

be, filed with the PSOB Office. 

Fire protection means—

(1) Suppression of fire; 

(2) Hazardous-materials emergency 

response; or 

(3) Emergency medical services or 

rescue activity of the kind performed by 

firefighters. 

Fire, rescue, or police emergency 

includes disaster-relief emergency. 

Firefighter means an individual 

who—

(1) Is trained in—

(i) Suppression of fire; or 

(ii) Hazardous-materials emergency 

response; and 

(2) Has the legal authority and 

-responsibility to engage in the 

suppression of fire, as—

(i) An employee of the public agency 

he serves, which legally recognizes him 

to have such (or, at a minimum, does 

not deny (or has not denied) him to 

have such); or 


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(ii) An individual otherwise included 

within the definition provided in the 

Act, at 42 U.S.C. 3796b(4). 

Functionally within or -part of—No 

individual shall be understood to be 

functionally within or -part of a public 

agency solely by virtue of an 

independent contractor relationship. 

Gross negligence means great, 

heedless, wanton, indifferent, or 

reckless departure from ordinary care, 

prudence, diligence, or safe practice—

(1) In the presence of serious risks 

that are known or obvious; 

(2) Under circumstances where it is 

highly likely that serious harm will 

follow; or 

(3) In situations where a high degree 

of danger is apparent. 

Hazardous-materials emergency 

response means emergency response to 

the threatened or actual release of 

hazardous materials, where life, 

property, or the environment is at 

significant risk. 

Heart attack means myocardial 

infarction or sudden cardiac arrest. 

Illegitimate child—An individual is 

an illegitimate child of a public safety 

officer only if he is a natural child of the 

officer, and the officer is not married to 

the other biological parent at (or at any 

time after) the time of his conception. 

Incapable of self-support because of 

physical or mental disability—An 

individual is incapable of self-support 

because of physical or mental disability 

if he is under a disability within the 

meaning of the Social Security Act, at 

42 U.S.C. 423(d)(1)(A), applicable 

mutatis mutandis. 

Independent contractor includes any 

volunteer, servant, employee, 

contractor, or agent, of an independent 

contractor. 

Injury means a traumatic physical 

wound (or a traumatized physical 

condition of the body) caused by 

external force (such as bullets, 

explosives, sharp instruments, blunt 

objects, or physical blows), chemicals, 

electricity, climatic conditions, 

infectious disease, radiation, virii, or 

bacteria, but does not include any 

occupational disease, or any condition 

of the body caused or occasioned by 

stress or strain. 

Injury date means the time of the line 

of duty injury that—

(1) Directly and proximately results in 

the public safety officer’s death, with 

respect to a claim under—

(i) Subpart B of this part; or 

(ii) Subpart D of this part, by virtue of 

his death; or 

(2) Directly (or directly and 

proximately) results in the public safety 

officer’s total and permanent disability, 

with respect to a claim under—

(i) Subpart C of this part; or 

(ii) Subpart D of this part, by virtue of 

his disability. 

Instrumentality means entity, and 

does not include any individual, except 

that no entity shall be considered an 

instrumentality within the meaning of 

the Act, at 42 U.S.C. 3796b(8), or this 

part, unless, as of the injury date, 

(1) The entity—

(i) Is legally established, -recognized, 

or -organized, such that it has legal 

existence; and 

(ii) Is so organized and controlled, 

and its affairs so conducted, that it 

operates and acts solely and exclusively 

as a functional part of the relevant 

government, which legally recognizes it 

as such (or, at a minimum, does not 

deny (or has not denied) it to be such); 

and 

(2) The entity’s—

(i) Functions and duties are solely and 

exclusively of a public character; 

(ii) Services are provided generally to 

the public as such government would 

provide if acting directly through its 

public employees (i.e., they are 

provided without regard to any 

particular relationship (such as a 

subscription) a member of the public 

may have with such entity); and 

(iii) Acts and omissions are, and are 

recognized by such government as (or, 

at a minimum, not denied by such 

government to be), legally—

(A) Those of such government, for 

purposes of sovereign immunity; or 

(B) The responsibility of such 

government, for purposes of tort 

liability. 

Intention—A death, injury, or 

disability is brought about by a public 

safety officer’s intention if—

(1) An intentional action or activity of 

his is a substantial factor in bringing it 

about; and 

(2) It is a reasonably foreseeable result 

of the intentional action or activity. 

Intentional action or activity means 

activity or action (other than line of 

duty activity or action), including 

behavior, that is—

(1) A result of conscious volition, or 

otherwise voluntary; 

(2) Not a result of legal insanity or of 

impulse that is legally and objectively 

uncontrollable; and 

(3) Not performed under legal duress 

or legal coercion of the will. 

Intentional misconduct—Except with 

respect to voluntary intoxication at the 

time of death or catastrophic injury, a 

public safety officer’s action or activity 

is intentional misconduct if—

(1) As of the date it is performed, 

(i) Such action or activity—

(A) Is in violation of, or otherwise 

prohibited by, any statute, rule, 

regulation, condition of employment or 

service, official mutual-aid agreement, 

or other law; or 

(B) Is contrary to the ordinary, usual, 

or customary practice of similarlysituated officers within the public 

agency in which he serves; and 

(ii) He knows, or reasonably should 

know, that it is so in violation, 

prohibited, or contrary; and 

(2) Such action or activity—

(i) Is intentional; and 

(ii) Is—

(A) Performed without reasonable 

excuse; and 

(B) Objectively unjustified. 

Involvement—An individual is 

involved in crime and juvenile 

delinquency control or reduction, or 

enforcement of the criminal laws 

(including juvenile delinquency), only if 

he is an officer of a public agency and, 

in that capacity, has legal authority and 

-responsibility to arrest, apprehend, 

prosecute, adjudicate, correct or detain 

(in a prison or other detention or 

confinement facility), or supervise (as a 

parole or probation officer), persons 

who are alleged or found to have 

violated the criminal laws, and is 

recognized by such agency, or the 

relevant government (or, at a minimum, 

not denied by such agency, or the 

relevant government), to have such 

authority and responsibility. 

Itemized description of representative 

services provided—A description of 

representative services provided is 

itemized only when it includes—

(1) The beginning and end dates of the 

provision of the services; 

(2) An itemization of the services 

provided and the amount of time spent 

in providing them; and 

(3) An itemization of the expenses 

incurred in connection with the services 

provided for which reimbursement is 

sought. 

Kinds of public safety officers—The 

following are the different kinds of 

public safety officers: 

(1) Law enforcement officers; 

(2) Firefighters; 

(3) Chaplains; 

(4) Members of rescue squads or 

ambulance crews; and 

(5) Disaster relief workers. 

Law enforcement means enforcement 

of the criminal laws, including—

(1) Control or reduction of crime or of 

juvenile delinquency; 

(2) Prosecution or adjudication of 

individuals who are alleged or found to 

have violated such laws; 

(3) Corrections or detention (in a 

prison or other detention or 

confinement facility) of individuals who 

are alleged or found to have violated 

such laws; and 


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(4) Supervision of individuals on 

parole or probation for having violated 

such laws. 

Line of duty activity or action—

Activity or an action is performed in the 

line of duty, in the case of a public 

safety officer who is—

(1) A law enforcement officer, a 

firefighter, or a member of a rescue 

squad or ambulance crew—

(i) Whose primary function (as 

applicable) is law enforcement, fire 

protection, rescue activity, or the 

provision of emergency medical 

services, only if, not being described in 

the Act, at 42 U.S.C. 3796a(1), and not 

being a frolic or detour, it is activity or 

an action that he is obligated or 

authorized by statute, rule, regulation, 

condition of employment or service, 

official mutual-aid agreement, or other 

law, to perform (including any social, 

ceremonial, or athletic functions (or any 

training programs) to which he is 

assigned, or for which he is 

compensated), under the auspices of the 

public agency he serves, and such 

agency (or the relevant government) 

legally recognizes that activity or action 

to be so obligated or authorized (or, at 

a minimum, does not deny (or has not 

denied) it to be such); or 

(ii) Whose primary function is not law 

enforcement, fire protection, rescue 

activity, or the provision of emergency 

medical services, only if, not being 

described in the Act, at 42 U.S.C. 

3796a(1), and not being a frolic or 

detour—

(A) It is activity or an action that he 

is obligated or authorized by statute, 

rule, regulation, condition of 

employment or service, official mutualaid agreement, or other law, to perform, 

under the auspices of the public agency 

he serves, and such agency (or the 

relevant government) legally recognizes 

that activity or action to be so obligated 

or authorized (or, at a minimum, does 

not deny (or has not denied) it to be 

such); and 

(B) It is performed (as applicable) in 

the course of law enforcement, 

providing fire protection, engaging in 

rescue activity, providing emergency 

medical services, or training for one of 

the foregoing, and such agency (or the 

relevant government) legally recognizes 

it as such (or, at a minimum, does not 

deny (or has not denied) it to be such); 

(2) A disaster relief worker, only if, 

not being described in the Act, at 42 

U.S.C. 3796a(1), and not being a frolic 

or detour, it is disaster relief activity, 

and the agency he serves (or the relevant 

government), being described in the Act, 

at 42 U.S.C. 3796b(9)(B) or (C), legally 

recognizes it as such (or, at a minimum, 

does not deny (or has not denied) it to 

be such); or 

(3) A chaplain, only if, not being 

described in the Act, at 42 U.S.C. 

3796a(1), and not being a frolic or 

detour—

(i) It is activity or an action that he is 

obligated or authorized by statute, rule, 

regulation, condition of employment or 

service, official mutual-aid agreement, 

or other law, to perform, under the 

auspices of the public agency he serves, 

and such agency (or the relevant 

government) legally recognizes it as 

such (or, at a minimum, does not deny 

(or has not denied) it to be such); and 

(ii) It is performed in the course of 

responding to a fire, rescue, or police 

emergency, and such agency (or the 

relevant government) legally recognizes 

it as such (or, at a minimum, does not 

deny (or has not denied) it to be such). 

Line of duty injury—An injury is 

sustained in the line of duty only if—

(1) It is sustained in the course of—

(i) Performance of line of duty activity 

or a line of duty action; or 

(ii) Authorized commuting; or 

(2) Convincing evidence demonstrates 

that such injury resulted from the 

injured party’s status as a public safety 

officer. 

Mental faculties means brain 

function. 

Natural child—An individual is a 

natural child of a public safety officer 

only if he is a biological child of the 

officer, and the officer is alive at the 

time of his birth. 

Occupational disease means a disease 

that routinely constitutes a special 

hazard in, or is commonly regarded as 

a concomitant of, an individual’s 

occupation. 

Official capacity—An individual 

serves a public agency in an official 

capacity only if—

(1) He is officially authorized, 

-recognized, or -designated (by such 

agency) as functionally within or -part 

of it; and 

(2) His acts and omissions, while so 

serving, are legally those of such agency, 

which legally recognizes them as such 

(or, at a minimum, does not deny (or has 

not denied) them to be such). 

Official duties means duties that are 

officially authorized, -recognized, or 

-designated by an employing entity, 

such that the performance of those 

duties is legally the action of such 

entity, which legally recognizes it as 

such (or, at a minimum, does not deny 

(or has not denied) it to be such). 

Officially recognized or designated 

member of a department or agency 

means a member of a department or 

agency, or of an instrumentality, of a 

government described in the Act, at 42 

U.S.C. 3796b(8), who is officially 

recognized (or officially designated) as 

such a member by the same. 

Officially recognized or designated 

public employee of a department or 

agency means a public employee of a 

department or agency who is officially 

recognized (or officially designated) as a 

public safety officer, by the same. 

Officially recognized or designated 

public employee member of a squad or 

crew means a public employee member 

of a squad or crew who is officially 

recognized (or officially designated) as 

such a public employee member, by the 

public agency under whose auspices the 

squad or crew operates. 

OJP means the Office of Justice 

Programs, U.S. Department of Justice. 

Parent means a father or a mother. 

Parent-child relationship means a 

relationship between a public safety 

officer and another individual, in which 

the officer has the role of parent (other 

than biological or legally-adoptive), as 

shown by convincing evidence. 

Performance of duties in a grossly 

negligent manner at the time of death or 

catastrophic injury means gross 

negligence, as of or near the injury date, 

in the course of authorized commuting 

or performance of line of duty activity 

or a line of duty action, where such 

negligence is a substantial contributing 

factor in bringing such death or injury 

about. 

Posthumous child—An individual is a 

posthumous child of a public safety 

officer only if he is a biological child of 

the officer, and the officer is—

(1) Alive at the time of his conception; 

and 

(2) Not alive at the time of his birth. 

PSOB determining official means, as 

applicable, any of the following: 

(1) The PSOB Office; 

(2) The Hearing Officer; or 

(3) The Director. 

PSOB Office means the unit of BJA 

that directly administers the Public 

Safety Officers’ Benefits program, except 

that, with respect to the making of any 

finding, determination, affirmance, 

reversal, assignment, authorization, 

decision, judgment, waiver, or other 

ruling, it means such unit, acting with 

the concurrence of OJP’s General 

Counsel. 

Public employee means—

(1) An employee of a government 

described in the Act, at 42 U.S.C. 

3796b(8), (or of a department or agency 

thereof) and whose acts and omissions 

while so employed are legally those of 

such government, which legally 

recognizes them as such (or, at a 

minimum, does not deny (or has not 

denied) them to be such); or 

(2) An employee of an instrumentality 

of a government described in the Act, at 


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42 U.S.C. 3796b(8), who is eligible to 

receive death or disability benefits from 

such government on the same basis as 

an employee of that government (within 

the meaning of paragraph (1) of this 

definition) would. 

Public employee member of a squad 

or crew means a member of a squad or 

crew who is a public employee under 

the auspices of whose public agency 

employer the squad or crew operates. 

Public employee of a department or 

agency means a public employee whose 

public agency employer is the 

department or agency. 

Qualified beneficiary—An individual 

is a qualified beneficiary under the Act, 

at 42 U.S.C. 3796c–1 or Public Law 107–

37, only if he is an eligible payee—

(1) Who qualifies as a beneficiary 

pursuant to a determination that—

(i) The requirements of the Act, at 42 

U.S.C. 3796(a) or (b) (excluding the 

limitations relating to appropriations), 

as applicable, have been met; and 

(ii) The provisions of this part, as 

applicable, relating to payees otherwise 

have been met; and 

(2) Whose actions were not a 

substantial contributing factor to the 

death of the public safety officer (with 

respect to a claim under subpart B of 

this part). 

Representative services include 

expenses incurred in connection with 

such services. 

Rescue activity means search or 

rescue assistance in locating or 

extracting from danger persons lost, 

missing, or in imminent danger of 

serious bodily harm. 

Rescue squad or ambulance crew 

means a squad or crew whose members 

are rescue workers, ambulance drivers, 

paramedics, health-care responders, 

emergency medical technicians, or other 

similar workers, who—

(1) Are trained in rescue activity or 

the provision of emergency medical 

services; and 

(2) As such members, have the legal 

authority and -responsibility to—

(i) Engage in rescue activity; or 

(ii) Provide emergency medical 

services. 

Spouse means an individual’s lawful 

husband, -wife, -widower, or -widow 

(i.e., with whom the individual lawfully 

entered into marriage), and includes a 

spouse living apart from the individual, 

other than pursuant to divorce, except 

that, notwithstanding any other 

provision of law—

(1) For an individual purporting to be 

a spouse on the basis of a common-law 

marriage (or a putative marriage) to be 

considered a spouse within the meaning 

of this definition, it is necessary (but not 

sufficient) for the jurisdiction of 

domicile of the parties to recognize such 

individual as the lawful spouse of the 

other; and 

(2) In deciding who may be the 

spouse of a public safety officer—

(i) The relevant jurisdiction of 

domicile is the officer’s (as of the injury 

date); and 

(ii) With respect to a claim under 

subpart B of this part, the relevant date 

is that of the officer’s death. 

Stepchild—An individual is a 

stepchild of a public safety officer only 

if the individual is the legally-adoptive 

or biological first-generation offspring of 

a public safety officer’s current, 

deceased, or former spouse, which 

offspring (not having been legally 

adopted by the officer)—

(1) Was conceived before the marriage 

of the officer and the spouse; and 

(2) As of the injury date—

(i) Was known by the officer not to be 

his biological first-generation offspring; 

and 

(ii) After the officer obtained such 

knowledge—

(A) Received over half of his support 

from the officer; 

(B) Had as his principal place of 

abode the home of the officer and was 

a member of the officer’s household; or 

(C) Was in a parent-child relationship 

with the officer. 

Stress or strain includes physical 

stress or strain, mental stress or strain, 

post-traumatic stress disorder, and 

depression. 

Stroke means cerebral vascular 

accident. 

Student means an individual who 

meets the definition provided in the 

Act, at 42 U.S.C. 3796b(3)(ii), with 

respect to an educational/academic 

institution. 

Substantial contributing factor—A 

factor substantially contributes to a 

death, injury, or disability, if the 

factor—

(1) Contributed to the death, injury, or 

disability to a significant degree; or 

(2) Is a substantial factor in bringing 

the death, injury, or disability about. 

Substantial factor—A factor 

substantially brings about a death, 

injury, disability, heart attack, or stroke 

if—

(1) The factor alone was sufficient to 

have caused the death, injury, disability, 

heart attack, or stroke; or 

(2) No other factor (or combination of 

factors) contributed to the death, injury, 

disability, heart attack, or stroke to so 

great a degree as it did. 

Suppression of fire means 

extinguishment, physical prevention, or 

containment of fire, including on-site 

hazard evaluation. 

Terrorist attack—An event or act is a 

terrorist attack within the meaning of 

the Act, at 42 U.S.C. 3796c–1(a), only if 

the Attorney General determines that—

(1) There is a reasonable indication 

that the event or act was (or would be 

or would have been, with respect to a 

priori prevention or investigation 

efforts) an act of domestic or 

international terrorism within the 

meaning of the criminal terrorism laws, 

at 18 U.S.C. 2331; and 

(2) The event or act (or the 

circumstances of death or injury) was of 

such extraordinary or cataclysmic 

character as to make particularized 

factual findings impossible, impractical, 

unnecessary, or unduly burdensome. 

Voluntary intoxication at the time of 

death or catastrophic injury means the 

following: 

(1) With respect to alcohol, 

(i) In any claim arising from a public 

safety officer’s death in which the death 

was simultaneous (or practically 

simultaneous) with the injury, it means 

intoxication as defined in the Act, at 42 

U.S.C. 3796b(5), unless convincing 

evidence demonstrates that the officer 

did not introduce the alcohol into his 

body intentionally; and 

(ii) In any claim not described in 

paragraph (1)(i) of this definition, unless 

convincing evidence demonstrates that 

the officer did not introduce the alcohol 

into his body intentionally, it means 

intoxication—

(A) As defined in the Act, at 42 U.S.C. 

3796b(5), mutatis mutandis (i.e., with 

‘‘post-mortem’’ (each place it occurs) 

and ‘‘death’’ being substituted, 

respectively, by ‘‘post-injury’’ and 

‘‘injury’’); and 

(B) As of the injury date; and 

(2) With respect to drugs or other 

substances, it means a disturbance of 

mental or physical faculties resulting 

from their introduction into the body of 

a public safety officer, as evidenced by 

the presence therein, as of the injury 

date—

(i) Of any controlled substance 

included on Schedule I of the drug 

control and enforcement laws (see 21 

U.S.C. 812(a)), or any controlled 

substance included on Schedule II, III, 

IV, or V of such laws (see 21 U.S.C. 

812(a)) and with respect to which there 

is no therapeutic range or maximum 

recommended dosage, unless 

convincing evidence demonstrates that 

such introduction was not a culpable act 

of the officer’s under the criminal laws; 

or 

(ii) Of any controlled substance 

included on Schedule II, III, IV, or V of 

the drug control and enforcement laws 

(see 21 U.S.C. 812(a)) and with respect 

to which there is a therapeutic range or 

maximum recommended dosage—


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(A) At levels above or in excess of 

such range or dosage, unless convincing 

evidence demonstrates that such 

introduction was not a culpable act of 

the officer’s under the criminal laws; or 

(B) At levels at, below, or within such 

range or dosage, unless convincing 

evidence demonstrates that—

(1) Such introduction was not a 

culpable act of the officer’s under the 

criminal laws; or 

(2) The officer was not acting in an 

intoxicated manner immediately prior 

to the injury date. 

§ 32.4 Terms; construction, severability. 

(a) The first three provisions of 1 

U.S.C. 1 (rules of construction) shall 

apply. 

(b) If benefits are denied to any 

individual pursuant to the Act, at 42 

U.S.C. 3796a(4), or otherwise because 

his actions were a substantial 

contributing factor to the death of the 

public safety officer, such individual 

shall be presumed irrebuttably, for all 

purposes, not to have survived the 

officer. 

(c) Any provision of this part held to 

be invalid or unenforceable by its terms, 

or as applied to any person or 

circumstance, shall be construed so as 

to give it the maximum effect permitted 

by law, unless such holding shall be one 

of utter invalidity or unenforceability, in 

which event such provision shall be 

deemed severable herefrom and shall 

not affect the remainder hereof or the 

application of such provision to other 

persons not similarly situated or to 

other, dissimilar circumstances. 

§ 32.5 Evidence. 

(a) Except as otherwise may be 

expressly provided in the Act or this 

part, a claimant has the burden of 

persuasion as to all material issues of 

fact, and by the standard of proof of 

‘‘more likely than not.’’

(b) Except as otherwise may be 

expressly provided in this part, the 

PSOB determining official may, at his 

discretion, consider (but shall not be 

bound by) the factual findings of a 

public agency. 

(c) Rules 401 (relevant evidence), 402 

(admissibility), 602 to 604 (witnesses), 

701 to 704 (testimony), 901 to 903 

(authentication), and 1001 to 1008 

(contents of writings, records, and 

photographs) of the Federal Rules of 

Evidence shall apply to all filings, 

hearings, and other proceedings or 

matters. 

(d) In determining a claim, the PSOB 

determining official may, at his 

discretion, draw an adverse inference if, 

without reasonable justification or 

excuse—

(1) A claimant fails or refuses to file 

with the PSOB Office—

(i) Such material- or relevant evidence 

or -information within his possession, 

control, or ken as may reasonably be 

requested from time to time by such 

official; or 

(ii) Such authorizations or waivers as 

may reasonably be requested from time 

to time by such official to enable him (or 

to assist in enabling him) to obtain 

access to material- or relevant evidence 

or -information of a medical, personnel, 

financial, or other confidential nature; 

or 

(2) A claimant under subpart C of this 

part fails or refuses to appear in 

person—

(i) At his hearing under subpart E of 

this part (if there be such a hearing); or 

(ii) Before such official (or otherwise 

permit such official personally to 

observe his condition), at a time and 

location reasonably convenient to both, 

as may reasonably be requested by such 

official. 

(e) In determining a claim, the PSOB 

determining official may, at his 

discretion, draw an inference of 

voluntary intoxication at the time of 

death or catastrophic injury if, without 

reasonable justification or excuse, 

appropriate toxicologic analysis 

(including autopsy, in the event of 

death) is not performed, and/or the 

results thereof are not filed with the 

PSOB Office, where there is credible 

evidence suggesting that intoxication 

may have been a factor in the death or 

injury, or that the public safety officer—

(1) As of or near the injury date, 

was—

(i) A consumer of alcohol)—

(A) In amounts likely to produce a 

blood-alcohol level of .10 per centum or 

greater in individuals similar to the 

officer in weight and sex; or 

(B) In any amount, after ever having 

been treated at an inpatient facility for 

alcoholism; 

(ii) A consumer of controlled 

substances included on Schedule I of 

the drug control and enforcement laws 

(see 21 U.S.C. 812(a)); or 

(iii) An abuser of controlled 

substances included on Schedule II, III, 

IV, or V of the drug control and 

enforcement laws (see 21 U.S.C. 812(a)); 

or 

(2) Immediately prior to the injury 

date, was under the influence of alcohol 

or drugs or other substances or 

otherwise acting in an intoxicated 

manner. 

(f) In determining a claim under the 

Act, at 42 U.S.C. 3796c–1 or Public Law 

107–37, the certification described 

therein shall constitute prima facie 

evidence—

(1) Of the public agency’s 

acknowledgment that the public safety 

officer, as of the injury date, was (as 

applicable)—

(i) A public safety officer of the kind 

described in the certification; 

(ii) Employed by the agency; 

(iii) One of the following: 

(A) With respect to a law enforcement 

officer, an officer of the agency; 

(B) With respect to a firefighter, 

(1) An officially recognized or 

designated member of the agency (if it 

is a legally organized volunteer fire 

department); or 

(2) An employee of the agency; 

(C) With respect to a chaplain, 

(1) An officially recognized or 

designated member of the agency (if it 

is a legally organized police or volunteer 

fire department); or 

(2) An officially recognized or 

designated public employee of the 

agency (if it is a legally organized police 

or fire department); 

(D) With respect to a member of a 

rescue squad or ambulance crew, an 

officially recognized or designated 

public employee member of one of the 

agency’s rescue squads or ambulance 

crews; or 

(E) With respect to a disaster relief 

worker, an employee of the agency (if it 

is described in the Act, at 42 U.S.C. 

3796b(9)(B) or (C)); and 

(iv) Killed (with respect to a claim 

under subpart B of this part), or totally 

and permanently disabled (with respect 

to a claim under subpart C of this part), 

as a direct and proximate result of a line 

of duty injury; and 

(2) That there are no eligible payees 

other than those identified in the 

certification. 

§ 32.6 Payment and repayment. 

(a) No payment shall be made to (or 

on behalf of) more than one individual, 

on the basis of being a particular public 

safety officer’s spouse. 

(b) No payment shall be made, save—

(1) To (or on behalf of) a living payee; 

and 

(2) Pursuant to—

(i) A claim filed by (or on behalf of) 

such payee; and 

(ii) Except as provided in the Act, at 

42 U.S.C. 3796(c), approval of such 

claim. 

(c) Any amounts that would be paid 

but for the provisions of paragraph (b) 

of this section shall be retained by the 

United States and not paid. 

(d) With respect to the amount paid 

to a payee (or on his behalf) pursuant to 

a claim, the payee shall repay the 

following, unless, for good cause shown, 

the Director grants a full or partial 

waiver pursuant to the Act, at 42 U.S.C. 

3796(m): 


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(1) The entire amount, if approval of 

the claim was based, in whole or in 

material part, on the payee’s (or any 

other person’s or entity’s) fraud, 

concealment or withholding of evidence 

or information, false or inaccurate 

statements, mistake, wrongdoing, or 

deception; or 

(2) The entire amount subject to 

divestment, if the payee’s entitlement to 

such payment is divested, in whole or 

in part, such as by the subsequent 

discovery of individuals entitled to 

make equal or superior claims. 

(e) At the discretion of the Director, 

repayment of amounts owing or 

collectable under the Act or this part 

may, as applicable, be executed through 

setoffs against future payments on 

financial claims under subpart D of this 

part. 

§ 32.7 Fees for representative services. 

(a) A person seeking to receive any 

amount from (or with respect to) a 

claimant for representative services 

provided in connection with any claim 

may petition the PSOB Office for 

authorization under this section. Such 

petition shall include—

(1) An itemized description of the 

services; 

(2) The total amount sought to be 

received, from any source, as 

consideration for the services; 

(3) An itemized description of any 

representative or other services 

provided to (or on behalf of) the 

claimant in connection with other 

claims or causes of action, unrelated to 

the Act, before any public agency or 

non-public entity (including any 

insurer), arising from the public safety 

officer’s death, disability, or injury; 

(4) The total amount requested, 

charged, received, or sought to be 

received, from any source, as 

consideration for the services described 

in paragraph (a)(3) of this section; 

(5) A statement of whether the 

petitioner has legal training or is 

licensed to practice law, and a 

description of any special qualifications 

possessed by the petitioner (other than 

legal training or a license to practice 

law) that increased the value of his 

services to (or on behalf of) the 

claimant; 

(6) A certification that the claimant 

was provided, simultaneously with the 

filing of the petition, with—

(i) A copy of the petition; and 

(ii) A letter advising the claimant that 

he could file his comments on the 

petition, if any, with the PSOB Office, 

within thirty-three days of the date of 

that letter; and 

(7) A copy of the letter described in 

paragraph (a)(6)(ii) of this section. 

(b) Unless, for good cause shown, the 

Director extends the time for filing, no 

petition under paragraph (a) of this 

section shall be considered if the 

petition is filed with the PSOB Office 

later than one year after the date of the 

final agency determination of the claim. 

(c) Subject to paragraph (d) of this 

section, an authorization under 

paragraph (a) of this section shall be 

based on consideration of the following 

factors: 

(1) The nature of the services 

provided by the petitioner; 

(2) The complexity of the claim; 

(3) The level of skill and competence 

required to provide the petitioner’s 

services; 

(4) The amount of time spent on the 

claim by the petitioner; 

(5) The results achieved as a function 

of the petitioner’s services; 

(6) The level of administrative or 

judicial review to which the claim was 

pursued and the point at which the 

petitioner entered the proceedings; 

(7) The ordinary, usual, or customary 

fee charged by other persons (and by the 

petitioner) for services of a similar 

nature; and 

(8) The amount authorized by the 

PSOB Office in similar cases. 

(d) No amount shall be authorized 

under paragraph (a) of this section for—

(1) Any stipulated-, percentage-, or 

contingency fee; 

(2) Services at a rate in excess of that 

specified in 5 U.S.C. 504(b)(1)(A)(ii) 

(Equal Access to Justice Act); or 

(3) Services provided in connection 

with—

(i) Obtaining or providing evidence or 

information previously obtained by the 

PSOB determining official; 

(ii) Preparing the petition; or 

(iii) Explaining or delivering an 

approved claim to the claimant. 

(e) Upon a petitioner’s failure 

(without reasonable justification or 

excuse) to pursue in timely fashion his 

filed petition under paragraph (a) of this 

section, the Director may, at his 

discretion, deem the same to be 

abandoned, as though never filed. Not 

less than thirty-three days prior thereto, 

the PSOB Office shall serve the 

petitioner and the claimant with notice 

of the Director’s intention to exercise 

such discretion. 

(f) Upon its authorizing or not 

authorizing the payment of any amount 

under paragraph (a) of this section, the 

PSOB Office shall serve notice of the 

same upon the claimant and the 

petitioner. Such notice shall specify the 

amount, if any, the petitioner is 

authorized to charge the claimant and 

the basis of the authorization. 

(g) No agreement for representative 

services in connection with a claim 

shall be valid if the agreement provides 

for any consideration other than under 

this section. A person’s receipt of 

consideration for such services other 

than under this section may, among 

other things, be the subject of referral by 

BJA to appropriate professional, 

administrative, disciplinary, or other 

legal authorities. 

§ 32.8 Exhaustion of administrative 

remedies. 

No determination or negative 

disability finding that, at the time made, 

may be subject to a request for a Hearing 

Officer determination, a motion for 

reconsideration, or a Director appeal, 

shall be considered a final agency 

determination for purposes of judicial 

review, unless all administrative 

remedies have been exhausted. 

Subpart B—Death Benefit Claims 

§ 32.11 Scope of subpart. 

Consistent with § 32.1, this subpart 

contains provisions applicable to claims 

made under the Act—

(a) At 42 U.S.C. 3796(a); or 

(b) At 42 U.S.C. 3796c–1 or Public 

Law 107–37, with respect to a public 

safety officer’s death. 

§ 32.12 Time for filing claim. 

(a) Unless, for good cause shown, the 

Director extends the time for filing, no 

claim shall be considered if it is filed 

with the PSOB Office after the later of—

(1) Three years after the public safety 

officer’s death; or 

(2) One year after the receipt or denial 

of any benefits described in 

§ 32.15(a)(1)(i) (or the receipt of the 

certification described in 

§ 32.15(a)(1)(ii)). 

(b) A claimant may file with his claim 

such supporting evidence and legal 

arguments as he may wish to provide. 

§ 32.13 Definitions. 

Adoptive parent of a public safety 

officer means any individual who (not 

being a step-parent), as of the injury 

date, was the legally-adoptive parent of 

the public safety officer, or otherwise 

was in a child-parent relationship with 

him. 

Beneficiary of a life insurance policy 

of a public safety officer—An individual 

(living or deceased on the date of death 

of the public safety officer) is designated 

as beneficiary of a life insurance policy 

of such officer as of such date, only if 

the designation is, as of such date, legal 

and valid (as a designation of 

beneficiary of a life insurance policy) 

and unrevoked (by such officer or by 

operation of law), except that—

(1) Any designation of an individual 

(including any designation of the 


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biological or adoptive offspring of such 

individual) made in contemplation of 

such individual’s marriage (or 

purported marriage) to such officer shall 

be considered to be revoked by such 

officer as of such date of death if the 

marriage (or purported marriage)—not 

having taken place as of such date of 

death—did not take place when 

scheduled, unless preponderant 

evidence demonstrates that—

(i) The alteration in schedule was for 

reasons other than personal differences 

between the officer and the individual; 

or 

(ii) No such revocation was intended 

by the officer; and 

(2) Any designation of a spouse (or 

purported spouse) made in 

contemplation of or during such 

spouse’s (or purported spouse’s) 

marriage (or purported marriage) to such 

officer (including any designation of the 

biological or adoptive offspring of such 

individual) shall be considered to be 

revoked by such officer as of such date 

of death if the spouse (or purported 

spouse) is divorced from such officer 

after the date of designation and before 

such date of death, unless preponderant 

evidence demonstrates that no such 

revocation was intended by the officer. 

Beneficiary under the Act, at 42 

U.S.C. 3796(a)(4)(A)—An individual 

(living or deceased on the date of death 

of the public safety officer) is 

designated, by such officer (and as of 

such date), as beneficiary under the Act, 

at 42 U.S.C. 3796(a)(4)(A), only if the 

designation is, as of such date, legal and 

valid and unrevoked (by such officer or 

by operation of law), except that—

(1) Any designation of an individual 

(including any designation of the 

biological or adoptive offspring of such 

individual) made in contemplation of 

such individual’s marriage (or 

purported marriage) to such officer shall 

be considered to be revoked by such 

officer as of such date of death if the 

marriage (or purported marriage)—not 

having taken place as of such date of 

death—did not take place when 

scheduled, unless preponderant 

evidence demonstrates that—

(i) The alteration in schedule was for 

reasons other than personal differences 

between the officer and the individual; 

or 

(ii) No such revocation was intended 

by the officer; and 

(2) Any designation of a spouse (or 

purported spouse) made in 

contemplation of or during such 

spouse’s (or purported spouse’s) 

marriage (or purported marriage) to such 

officer (including any designation of the 

biological or adoptive offspring of such 

spouse (or purported spouse) shall be 

considered to be revoked by such officer 

as of such date of death if the spouse (or 

purported spouse) is divorced from such 

officer subsequent to the date of 

designation and before such date of 

death, unless preponderant evidence 

demonstrates that no such revocation 

was intended by the officer. 

Cardiovascular disease includes heart 

attack and stroke. 

Child-parent relationship means a 

relationship between a public safety 

officer and another individual, in which 

the individual (other than the officer’s 

biological or legally-adoptive parent) 

has the role of parent, as shown by 

convincing evidence. 

Circumstances other than engagement 

or participation means—

(1) An event or events; or 

(2) An intentional risky behavior or 

intentional risky behaviors. 

Commonly accepted means generally 

agreed upon within the medical 

profession. 

Competent medical evidence to the 

contrary—The presumption raised by 

the Act, at 42 U.S.C. 3796(k), is 

overcome by competent medical 

evidence to the contrary, when evidence 

indicates to a degree of medical 

probability that circumstances other 

than any engagement or participation 

described in the Act, at 42 U.S.C. 

3796(k)(1), considered in combination 

(as one circumstance) or alone, were a 

substantial factor in bringing the heart 

attack or stroke about. 

Direct and proximate result of a heart 

attack or stroke—A death results 

directly and proximately from a heart 

attack or stroke if the heart attack or 

stroke is a substantial factor in bringing 

it about. 

Engagement in a situation—A public 

safety officer is engaged in a situation 

only when, within his line of duty—

(1) He is in the course of actually—

(i) Engaging in law enforcement; 

(ii) Suppressing fire; 

(iii) Responding to a hazardousmaterials emergency; 

(iv) Performing rescue activity; 

(v) Providing emergency medical 

services; or 

(vi) Performing disaster relief activity; 

or 

(vii) Otherwise responding to a fire, 

rescue, or police emergency; and 

(2) The public agency he serves (or 

the relevant government) legally 

recognizes him to be in such course (or, 

at a minimum, does not deny (or has not 

denied) him so to be). 

Event includes occurrence, but does 

not include any engagement or 

participation described in the Act, at 42 

U.S.C. 3796(k)(1). 

Excessive consumption of alcohol—

An individual is an excessive consumer 

of alcohol if he consumes alcohol in 

amounts commonly accepted to be 

associated with substantially-increased 

risk of cardiovascular disease. 

Execution of a designation of 

beneficiary under the Act, at 42 U.S.C. 

3796(a)(4)(A) means the legal and valid 

execution, by the public safety officer, 

of a writing that, designating a 

beneficiary, expressly, specifically, or 

unmistakably refers to—

(1) The Act (or the program it creates); 

or 

(2) All the death benefits with respect 

to which such officer lawfully could 

designate a beneficiary (if there be no 

writing that satisfies paragraph (1) of 

this definition). 

Execution of a life insurance policy 

means, with respect to a life insurance 

policy, the legal and valid execution, by 

the individual whose life is insured 

thereunder, of—

(1) The approved application for 

coverage; 

(2) A designation of beneficiary; or 

(3) A designation of the mode of 

benefit. 

Medical probability—A fact is 

indicated to a degree of medical 

probability, when, pursuant to a 

medical assessment, the fact is indicated 

by a preponderance of such evidence as 

may be available. 

Most recently executed designation of 

beneficiary under the Act, at 42 U.S.C. 

3796(a)(4)(A) means the most recently 

executed such designation that, as of the 

date of death of the public safety officer, 

designates a beneficiary. 

Most recently executed life insurance 

policy of a public safety officer means 

the most recently executed policy 

insuring the life of a public safety officer 

that, being legal and valid (as a life 

insurance policy) upon its execution, as 

of the date of death of such officer—

(1) Designates a beneficiary; and 

(2) Remains legally in effect. 

Nonroutine strenuous physical 

activity—Except as excluded by the Act, 

at 42 U.S.C. 3796(l), nonroutine 

strenuous physical activity means line 

of duty activity that—

(1) Is not performed as a matter of 

routine; and 

(2) Entails an unusually-high level of 

physical exertion. 

Nonroutine stressful or strenuous 

physical activity means nonroutine 

stressful physical activity or nonroutine 

strenuous physical activity. 

Nonroutine stressful physical 

activity—Except as excluded by the Act, 

at 42 U.S.C. 3796(l), nonroutine stressful 

physical activity means line of duty 

activity that—

(1) Is not performed as a matter of 

routine; 


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(2) Entails non-negligible physical 

exertion; and 

(3) Occurs—

(i) With respect to a situation in 

which a public safety officer is engaged, 

under circumstances that objectively 

and reasonably—

(A) Pose (or appear to pose) 

significant dangers, threats, or hazards 

(or reasonably-foreseeable risks thereof), 

not faced by similarly-situated members 

of the public in the ordinary course; and 

(B) Provoke, cause, or occasion an 

unusually-high level of alarm, fear, or 

anxiety; or 

(ii) With respect to a training exercise 

in which a public safety officer 

participates, under circumstances that 

objectively and reasonably—

(A) Simulate in realistic fashion 

situations that pose significant dangers, 

threats, or hazards; and 

(B) Provoke, cause, or occasion an 

unusually-high level of alarm, fear, or 

anxiety. 

Parent of a public safety officer means 

a public safety officer’s surviving—

(1) Biological or adoptive parent 

whose parental rights have not been 

terminated, as of the injury date; or 

(2) Step-parent. 

Participation in a training exercise—

A public safety officer participates (as a 

trainer or trainee) in a training exercise 

only if it is a formal part of an official 

training program whose purpose is to 

train public safety officers in, prepare 

them for, or improve their skills in, 

particular activity or actions 

encompassed within their respective 

lines of duty. 

Public safety agency, organization, or 

unit means a department or agency (or 

component thereof)—

(1) In which a public safety officer 

serves in an official capacity, with or 

without compensation, as such an 

officer (of any kind but disaster relief 

worker); or 

(2) Of which a public safety officer is 

an employee, performing official duties 

as described in the Act, at 42 U.S.C. 

3796b(9)(B) or (C), as a disaster relief 

worker. 

Risky behavior means—

(1) Failure (without reasonable 

justification or excuse) to undertake 

treatment—

(i) Of any commonly-accepted 

cardiovascular-disease risk factor 

associated with clinical values, where 

such risk factor is—

(A) Known (or should be known) to be 

present; and 

(B) Present to a degree that 

substantially exceeds the minimum 

value commonly accepted as indicating 

high risk; 

(ii) Of any disease or condition 

commonly accepted to be associated 

with substantially-increased risk of 

cardiovascular disease, where such 

associated disease or condition is 

known (or should be known) to be 

present; or 

(iii) Where a biological parent, 

-sibling, or -child, is known to have (or 

have a history of) cardiovascular 

disease; 

(2) Smoking an average of more than 

one-half of a pack of cigarettes (or its 

equivalent) per day; 

(3) Excessive consumption of alcohol; 

(4) Consumption of controlled 

substances included on Schedule I of 

the drug control and enforcement laws 

(see 21 U.S.C. 812(a)), where such 

consumption is commonly accepted to 

be associated with increased risk of 

cardiovascular disease; or 

(5) Abuse of controlled substances 

included on Schedule II, III, IV, or V of 

the drug control and enforcement laws 

(see 21 U.S.C. 812(a)), where such abuse 

is commonly accepted to be associated 

with increased risk of cardiovascular 

disease. 

Step-parent of a public safety officer 

means a current or former spouse of the 

legally-adoptive or biological parent 

(living or deceased) of a public safety 

officer conceived (or legally adopted) by 

that parent before the marriage of the 

spouse and the parent, which spouse 

(not being a legally-adoptive parent of 

the officer), as of the injury date, 

(1) Received over half of his support 

from the officer; 

(2) Had as his principal place of abode 

the home of the officer and was a 

member of the officer’s household; or 

(3) Was in a child-parent relationship 

with the officer. 

Undertaking of treatment—An 

individual undertakes treatment, when 

he consults with a physician licensed to 

practice medicine in any jurisdiction 

described in the Act, at 42 U.S.C. 

3796b(8), and complies substantially 

with his recommendations. 

§ 32.14 PSOB Office determination. 

(a) Upon its approving or denying a 

claim, the PSOB Office shall serve 

notice of the same upon the claimant 

(and upon any other claimant who may 

have filed a claim with respect to the 

same public safety officer). In the event 

of a denial, such notice shall—

(1) Specify the factual findings and 

legal conclusions that support it; and 

(2) Provide information as to 

requesting a Hearing Officer 

determination. 

(b) Upon a claimant’s failure (without 

reasonable justification or excuse) to 

pursue in timely fashion the 

determination, by the PSOB Office, of 

his filed claim, the Director may, at his 

discretion, deem the same to be 

abandoned. Not less than thirty-three 

days prior thereto, the PSOB Office shall 

serve the claimant with notice of the 

Director’s intention to exercise such 

discretion. 

§ 32.15 Prerequisite certification. 

(a) Except as provided in the Act, at 

42 U.S.C. 3796c–1 or Public Law 107–

37, and unless, for good cause shown, 

the Director grants a waiver, no claim 

shall be approved unless the following 

(which shall be necessary, but not 

sufficient, for such approval) are filed 

with the PSOB Office: 

(1) Subject to paragraph (b) of this 

section, a certification from the public 

agency in which the public safety officer 

served (as of the injury date) that he 

died as a direct and proximate result of 

a line of duty injury, and either—

(i) That his survivors (listed by name, 

address, relationship to him, and 

amount received) have received (or 

legally are entitled to receive) the 

maximum death benefits legally payable 

by the agency with respect to deaths of 

public safety officers of his kind, rank, 

and tenure; or 

(ii) Subject to paragraph (c) of this 

section, that the agency is not legally 

authorized to pay—

(A) Any benefits described in 

paragraph (a)(1)(i) of this section, to any 

person; or 

(B) Any benefits described in 

paragraph (a)(1)(i) of this section, to 

public safety officers of the kind, rank, 

and tenure described in such paragraph; 

(2) A copy of any rulings made by any 

public agency that relate to the officer’s 

death; and 

(3) A certification from the claimant 

listing every individual known to him 

who is or might be the officer’s child, 

spouse, or parent. 

(b) The provisions of paragraph (a)(1) 

of this section shall also apply with 

respect to every public agency that 

legally is authorized to pay death 

benefits with respect to the agency 

described in that paragraph. 

(c) No certification described in 

paragraph (a)(1)(ii) of this section shall 

be deemed complete unless it—

(1) Lists every public agency (other 

than BJA) that legally is authorized to 

pay death benefits with respect to the 

certifying agency; or 

(2) States that no public agency (other 

than BJA) legally is authorized to pay 

death benefits with respect to the 

certifying agency. 

§ 32.16 Payment. 

(a) No payment shall be made to (or 

on behalf of) more than one individual, 

on the basis of being a public safety 


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officer’s parent as his mother, or on that 

basis as his father. If more than one 

parent qualifies as the officer’s mother, 

or as his father, payment shall be made 

to the one with whom the officer 

considered himself, as of the injury 

date, to have the closest relationship, 

except that any biological or legallyadoptive parent whose parental rights 

have not been terminated as of the 

injury date shall be presumed rebuttably 

to be such one. 

(b) Any amount payable with respect 

to a minor or incompetent shall be paid 

to his legal guardian, to be expended 

solely for the benefit of such minor or 

incompetent. 

§ 32.17 Request for Hearing Officer 

determination. 

In order to exhaust his administrative 

remedies, a claimant seeking relief from 

the denial of his claim shall request a 

Hearing Officer determination under 

subpart E of this part. Consistent with 

§ 32.8, any denial that is not the subject 

of such a request shall constitute the 

final agency determination. 

Subpart C—Disability Benefit Claims 

§ 32.21 Scope of subpart. 

Consistent with § 32.1, this subpart 

contains provisions applicable to claims 

made under the Act—

(a) At 42 U.S.C. 3796(b); or 

(b) At 42 U.S.C. 3796c–1 or Public 

Law 107–37, with respect to a public 

safety officer’s disability. 

§ 32.22 Time for filing claim. 

(a) Unless, for good cause shown, the 

Director extends the time for filing, no 

claim shall be considered if it is filed 

with the PSOB Office after the later of—

(1) Three years after the injury date; 

or 

(2) One year after the receipt or denial 

of any benefits described in 

§ 32.25(a)(1)(i) (or receipt of the 

certification described in 

§ 32.25(a)(1)(ii)). 

(b) A claimant may file with his claim 

such supporting evidence and legal 

arguments as he may wish to provide. 

§ 32.23 Definitions. 

Direct result of an injury—A disability 

results directly from an injury if the 

injury is a substantial factor in bringing 

the disability about. 

Gainful work means full-or part-time 

activity that actually is compensated or 

commonly is compensated. 

Medical certainty—A fact exists to a 

degree of medical certainty, when, 

pursuant to a medical assessment, the 

fact is demonstrated by convincing 

evidence. 

Permanently disabled—An individual 

is permanently disabled only if there is 

a degree of medical certainty (given the 

current state of medicine in the United 

States) that his disabled condition—

(1) Will progressively deteriorate or 

remain constant, over his expected 

lifetime; or 

(2) Otherwise has reached maximum 

medical improvement. 

Product of an injury—Permanent and 

total disability is produced by a 

catastrophic injury suffered as a direct 

and proximate result of a personal 

injury if the disability is a direct result 

of the personal injury. 

Residual functional capacity means 

that which an individual still is capable 

of doing, as shown by medical (and, as 

appropriate, vocational) assessment, 

despite a disability. 

Totally disabled—An individual is 

totally disabled only if there is a degree 

of medical certainty (given the current 

state of medicine in the United States) 

that his residual functional capacity is 

such that he cannot perform any gainful 

work. 

§ 32.24 PSOB Office determination. 

(a) Upon its approving or denying a 

claim, the PSOB Office shall serve 

notice of the same upon the claimant. In 

the event of a denial, such notice shall—

(1) Specify the factual findings and 

legal conclusions that support it; and 

(2) Provide information as to—

(i) Requesting a Hearing Officer 

determination; or 

(ii) As applicable, moving to 

reconsider a negative disability finding. 

(b) Upon a claimant’s failure (without 

reasonable justification or excuse) to 

pursue in timely fashion the 

determination of his filed claim, the 

Director may, at his discretion, deem the 

same to be abandoned. Not less than 

thirty-three days prior thereto, the PSOB 

Office shall serve the claimant with 

notice of the Director’s intention to 

exercise such discretion. 

§ 32.25 Prerequisite certification. 

(a) Except as provided in the Act, at 

42 U.S.C. 3796c–1 or Public Law 107–

37, and unless, for good cause shown, 

the Director grants a waiver, no claim 

shall be approved unless the following 

(which shall be necessary, but not 

sufficient, for such approval) are filed 

with the PSOB Office: 

(1) Subject to paragraph (b) of this 

section, a certification from the public 

agency in which the public safety officer 

served (as of the injury date) that he was 

permanently and totally disabled as a 

direct result of a line of duty injury, and 

either—

(i) That he has received (or legally is 

entitled to receive) the maximum 

disability benefits (including workers’

compensation) legally payable by the 

agency with respect to disabled public 

safety officers of his kind, rank, and 

tenure; or 

(ii) Subject to paragraph (c) of this 

section, that the agency is not legally 

authorized to pay—

(A) Any benefits described in 

paragraph (a)(1)(i) of this section, to any 

person; or 

(B) Any benefits described in 

paragraph (a)(1)(i) of this section, to 

public safety officers of the kind, rank, 

and tenure described in such paragraph; 

and 

(2) A copy of—

(i) Each State, local, and federal 

income tax return filed by or on behalf 

of the public safety officer from the year 

before the injury date to the date of 

determination by the PSOB determining 

official; and 

(ii) Any rulings made by any public 

agency that relate to the claimed 

disability. 

(b) The provisions of paragraph (a)(1) 

of this section shall also apply with 

respect to every public agency that 

legally is authorized to pay disability 

benefits with respect to the agency 

described in that paragraph. 

(c) No certification described in 

paragraph (a)(1)(ii) of this section shall 

be deemed complete unless it—

(1) Lists every public agency (other 

than BJA) that legally is authorized to 

pay disability benefits with respect to 

the certifying agency; or 

(2) States that no public agency (other 

than BJA) legally is authorized to pay 

disability benefits with respect to the 

certifying agency. 

§ 32.26 Payment. 

The amount payable on a claim shall 

be the amount payable, as of the injury 

date, pursuant to the Act, at 42 U.S.C. 

3796(b). 

§ 32.27 Motion for reconsideration of 

negative disability finding. 

A claimant whose claim is denied in 

whole or in part on the ground that he 

has not shown that his claimed 

disability is total and permanent may 

move for reconsideration, under § 32.28, 

of the specific finding as to the total and 

permanent character of the claimed 

disability (in lieu of his requesting a 

Hearing Officer determination with 

respect to the same). 

§ 32.28 Reconsideration of negative 

disability finding. 

(a) Unless, for good cause shown, the 

Director extends the time for filing, no 

negative disability finding described in 

§ 32.27 shall be reconsidered if the 


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Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Rules and Regulations 46047 

motion under that section is filed with 

the PSOB Office later than thirty-three 

days after the service of notice of the 

denial. 

(b) Notwithstanding any other 

provision of this section, no negative 

disability finding described in § 32.27 

shall be reconsidered—

(1) If or after such reconsideration is 

rendered moot (e.g., by the final denial 

of the claim on other grounds, without 

possibility of further administrative or 

judicial recourse); or 

(2) If a request for a Hearing Officer 

determination has been filed in timely 

fashion with respect to such finding. 

(c) Unless, for good cause shown, the 

Director grants a waiver, upon the 

making of a motion under § 32.27, 

reconsideration of the negative 

disability finding described in that 

section shall be stayed for three years. 

Upon the conclusion of the stay, the 

claimant shall have not more than six 

years to file evidence with the PSOB 

Office in support of his claimed 

disability. 

(d) Upon a claimant’s failure (without 

reasonable justification or excuse) to file 

in timely fashion evidence pursuant to 

paragraph (c) of this section, the 

Director may, at his discretion, deem the 

motion for reconsideration to be 

abandoned, as though never filed. Not 

less than thirty-three days prior thereto, 

the PSOB Office shall serve the claimant 

with notice of the Director’s intention to 

exercise such discretion. 

(e) No negative disability finding 

described in § 32.27 shall be reversed 

unless a copy (which shall be necessary, 

but not sufficient, for such reversal) of 

each federal, State, and local income tax 

return filed by or on behalf of the 

claimant from the year before the date 

of the motion for reconsideration under 

that section to the date of reversal is 

filed with the PSOB Office. 

(f) Upon its affirming or reversing a 

negative disability finding described in 

§ 32.27, the PSOB Office shall serve 

notice of the same upon the claimant. In 

the event of an affirmance, such notice 

shall—

(1) Specify the factual findings and 

legal conclusions that support it; and 

(2) Provide information as to 

requesting a Hearing Officer 

determination of the disability finding. 

§ 32.29 Request for Hearing Officer 

determination. 

(a) In order to exhaust his 

administrative remedies, a claimant 

seeking relief from the denial of his 

claim shall request a Hearing Officer 

determination under subpart E of this 

part—

(1) Of—

(i) His entire claim, if he has not 

moved for reconsideration of a negative 

disability finding under § 32.27; or 

(ii) The grounds (if any) of the denial 

that are not the subject of such motion, 

if he has moved for reconsideration of 

a negative disability finding under 

§ 32.27; and 

(2) Of a negative disability finding 

that is affirmed pursuant to his motion 

for reconsideration under § 32.27. 

(b) Consistent with § 32.8, the 

following shall constitute the final 

agency determination: 

(1) Any denial not described in 

§ 32.27 that is not the subject of a 

request for a Hearing Officer 

determination under paragraph (a)(1)(i) 

of this section; 

(2) Any denial described in § 32.27 

that is not the subject of a request for a 

Hearing Officer determination under 

paragraph (a)(1)(ii) of this section, 

unless the negative disability finding is 

the subject of a motion for 

reconsideration; and 

(3) Any affirmance that is not the 

subject of a request for a Hearing Officer 

determination under paragraph (a)(2) of 

this section. 

Subpart D—Educational Assistance 

Benefit Claims 

§ 32.31 Scope of subpart. 

Consistent with § 32.1, this subpart 

contains provisions applicable to claims 

(i.e., threshold claims and financial 

claims) made under the Act, at 42 U.S.C. 

3796d–1. 

§ 32.32 Time for filing claim. 

(a) Subject to the Act, at 42 U.S.C. 

3796d–1(c), and to paragraph (b) of this 

section, a claim may be filed with the 

PSOB Office at any time after the injury 

date. 

(b) Unless, for good cause shown, the 

Director grants a waiver, no financial 

claim may be filed with the PSOB 

Office, with respect to a grading period 

that commences more than six months 

after the date of filing. 

(c) A claimant may file with his claim 

such supporting evidence and legal 

arguments as he may wish to provide. 

§ 32.33 Definitions. 

Application means claim (i.e., a 

threshold claim or a financial claim). 

Assistance means financial assistance. 

Child of an eligible public safety 

officer means the child of a public safety 

officer, which officer is an eligible 

public safety officer. 

Dependent—An individual is a 

dependent of an eligible public safety 

officer, if—

(1) Being a child of the officer, the 

individual—

(i) Was claimed properly as the 

officer’s dependent (within the meaning 

of the Internal Revenue Code, at 26 

U.S.C. 152) on the officer’s federal 

income-tax return (or could have been 

claimed if such a return had been 

required by law)—

(A) For the tax year of (or immediately 

preceding) either the injury date or the 

date of the officer’s death (with respect 

to a claim by virtue of such death); or 

(B) For the relevant tax year (with 

respect to a claim by virtue of the 

officer’s disability); or 

(ii) Is the officer’s posthumous child; 

or 

(2) Being a spouse of the officer at the 

time of the officer’s death or on the date 

of the officer’s totally and permanently 

disabling injury, the individual received 

over half of his support from the officer 

(or had as his principal place of abode 

the home of the officer and was a 

member of the officer’s household)—

(i) As of either the injury date or the 

date of the officer’s death (with respect 

to a claim by virtue of such death); or 

(ii) In the relevant tax year (with 

respect to a claim by virtue of the 

officer’s disability). 

Educational assistance benefits means 

benefits specifically to assist in paying 

educational expenses. 

Educational expenses means such of 

the following as may be in furtherance 

of the educational, professional, or 

vocational objective of the program of 

education that forms the basis of a 

financial claim: 

(1) Tuition and fees, as described in 

20 U.S.C. 1087ll(1) (higher education 

assistance); 

(2) Reasonable expenses for—

(i) Room and board (if incurred for 

attendance on at least a half-time basis); 

(ii) Books; 

(iii) Computer equipment; 

(iv) Supplies; 

(v) Transportation; and 

(3) For attendance on at least a threequarter-time basis, a standard allowance 

for miscellaneous personal expenses 

that is the greater of—

(i) The allowance for such expenses, 

as established by the eligible 

educational institution for purposes of 

financial aid; or 

(ii) $200.00 per month. 

Eligible dependent means an 

individual who—

(1) Is a dependent of an eligible public 

safety officer; 

(2) Attends a program of education, as 

described in the Act, at 42 U.S.C. 

3796d–1(a)(1); and 

(3) Is otherwise eligible to receive 

financial assistance pursuant to the Act 

or this subpart. 

Eligible educational expenses means a 

claimant’s educational expenses, 


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46048 Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Rules and Regulations 

reduced by the amount of educational 

assistance benefits from nongovernmental organizations that the 

claimant has received or will receive. 

Eligible public safety officer means a 

public safety officer—

(1) With respect to whose death, 

benefits under subpart B of this part 

properly have been paid; or 

(2) With respect to whose disability, 

benefits under subpart C of this part 

properly—

(i) Have been paid; or 

(ii) Would have been paid, but for the 

operation of paragraph (b)(1) of § 32.6. 

Financial assistance means financial 

assistance, as described in the Act, at 42 

U.S.C. 3796d–1. 

Financial claim means a request for 

financial assistance, with respect to 

attendance at a program of education, 

for a particular grading period. 

Financial need—An individual is in 

financial need for a particular grading 

period to the extent that the amount of 

his eligible educational expenses for 

that period exceed the sum of—

(1) The amount of his educational 

assistance benefits as described in the 

Act, at 42 U.S.C. 3796d–1(a)(3)(A); and 

(2) His expected family contribution 

calculated pursuant to 20 U.S.C. 1087nn 

(higher education assistance). 

Funds means financial assistance. 

Grading period means the period of 

attendance (e.g., a semester, a trimester, 

a quarter) in a program of education, 

after (or with respect to) which period 

grades are assigned, units of credit are 

awarded, or courses are considered 

completed, as determined by the eligible 

educational institution. 

Prospective financial claim means a 

financial claim with respect to a grading 

period that ends after the claim is filed. 

Public safety agency means a public 

agency—

(1) In which a public safety officer 

serves in an official capacity, with or 

without compensation, as such an 

officer (of any kind but disaster relief 

worker); or 

(2) Of which a public safety officer is 

an employee, performing official duties 

as described in the Act, at 42 U.S.C. 

3796b(9)(B) or (C), as a disaster relief 

worker. 

Retroactive financial claim means a 

financial claim with respect to a grading 

period that ends before the claim is 

filed. 

Spouse of an eligible public safety 

officer at the time of the officer’s death 

or on the date of a totally and 

permanently disabling injury means the 

spouse of a public safety officer (which 

officer is an eligible public safety 

officer) as of—

(1) The date of the officer’s death 

(with respect to a claim by virtue of 

such death); or 

(2) The injury date (with respect to a 

claim by virtue of the officer’s 

disability). 

Tax Year—With respect to a claim by 

virtue of an eligible public safety 

officer’s disability, the relevant tax year 

is—

(1) The tax year of (or immediately 

preceding) the injury date; 

(2) Any tax year during which the 

program of education that forms the 

basis of the claim is attended or is 

pursued; 

(3) The tax year immediately 

preceding the date on which the 

program of education that forms the 

basis of the claim commenced (or is to 

commence); or 

(4) The tax year of (or immediately 

preceding) the officer’s death, where the 

program of education that forms the 

basis of the claim commenced (or is to 

commence) after the date of such death. 

Threshold claim means a request for 

determination of general eligibility to 

receive financial assistance. 

§ 32.34 PSOB Office determination. 

(a) In the event of the PSOB Office’s 

denying a claim, the notice it serves 

upon the claimant shall—

(1) Specify the factual findings and 

legal conclusions that support the 

denial; and 

(2) Provide information as to 

requesting a Hearing Officer 

determination. 

(b) No financial claim shall be 

approved, unless the claimant’s 

threshold claim has been approved. 

(c) Upon a claimant’s failure (without 

reasonable justification or excuse) to 

pursue in timely fashion the 

determination of his filed claim, the 

Director may, at his discretion, deem the 

same to be abandoned. Not less than 

thirty-three days prior thereto, the PSOB 

Office shall serve the claimant with 

notice of the Director’s intention to 

exercise such discretion. 

§ 32.35 Disqualification. 

No claim shall be approved if the 

claimant is—

(a) In default on any student loan 

obtained under 20 U.S.C. 1091 (higher 

education assistance), unless, for good 

cause shown, the Director grants a 

waiver; or 

(b) Subject to a denial of federal 

benefits under 21 U.S.C. 862 (drug 

traffickers and possessors). 

§ 32.36 Payment and repayment. 

(a) The computation described in the 

Act, at 42 U.S.C. 3796d–1(a)(2), shall be 

based on a certification from the eligible 

educational institution as to the 

claimant’s full-, three-quarter-, half-, or 

less-than-half-time student status, 

according to such institution’s own 

academic standards and practices. 

(b) No payment shall be made with 

respect to any grading period that ended 

before the injury date. 

(c) With respect to any financial 

claim, no amount shall be payable that 

exceeds the amount of the eligible 

educational expenses that form the basis 

of the claim. 

(d) In the event that appropriations for 

a fiscal year are insufficient for full 

payment of all approved or anticipated 

financial claims, the following 

payments shall be made—

(1) The amounts payable on approved 

prospective financial claims from 

claimants in financial need, to the 

extent of such need (if sufficient funds 

be available therefor), in the order the 

claims are approved; 

(2) All other amounts payable on 

approved prospective financial claims 

(in the order the claims are approved), 

if sufficient funds be available 

therefor—

(i) After payment of all amounts 

payable pursuant to paragraph (d)(1) of 

this section; and 

(ii) After making allowance for 

anticipated amounts payable in the 

fiscal year pursuant to paragraph (d)(1) 

of this section; and 

(3) The amounts payable on approved 

retroactive financial claims (in the order 

the claims are approved), if sufficient 

funds be available therefor—

(i) After payment of all amounts 

payable pursuant to paragraphs (d)(1) 

and (2) of this section; and 

(ii) After making allowance for 

anticipated amounts payable in the 

fiscal year, pursuant to paragraphs (d)(1) 

and (2) of this section. 

(e) In the event that, at the conclusion 

of a fiscal year, any amounts remain 

payable on an approved financial claim, 

such amounts shall remain payable 

thereafter until paid (when 

appropriations be sufficient therefor). 

(f) In the event that any amounts 

remain payable on an approved 

prospective financial claim after the end 

of the grading period that forms its 

basis, such claim shall be deemed an 

approved retroactive financial claim for 

purposes of paragraph (d) of this 

section. 

(g) No payment shall be made to (or 

on behalf of) any individual, on the 

basis of being a particular living public 

safety officer’s spouse, unless the 

individual is the officer’s spouse on the 

date of payment. 


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Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Rules and Regulations 46049 

(h) Unless, for good cause shown, the 

Director grants a full or partial waiver, 

a payee shall repay the amount paid to 

him (or on his behalf) pursuant to a 

prospective financial claim if, during 

the grading period that forms its basis—

(1) He fails to maintain satisfactory 

progress under 20 U.S.C. 1091(c) (higher 

education assistance); 

(2) He fails to maintain the enrollment 

status described in his claim; or 

(3) By his acts or omissions, he is or 

becomes ineligible for financial 

assistance. 

§ 32.37 Request for Hearing Officer 

determination. 

In order to exhaust his administrative 

remedies, a claimant seeking relief from 

the denial of his claim shall request a 

Hearing Officer determination under 

subpart E of this part. Consistent with 

§ 32.8, any denial that is not the subject 

of such a request shall constitute the 

final agency determination. 

Subpart E—Hearing Officer 

Determinations 

§ 32.41 Scope of subpart. 

Consistent with § 32.1, this subpart 

contains provisions applicable to 

requests for Hearing Officer 

determination of claims denied under 

subpart B, C (including affirmances of 

negative disability findings described in 

§ 32.27), or D of this part. 

§ 32.42 Time for filing request for 

determination. 

(a) Unless, for good cause shown, the 

Director extends the time for filing, no 

claim shall be determined if the request 

therefor is filed with the PSOB Office 

later than thirty-three days after the 

service of notice of—

(1) The denial (under subpart B, C 

(except as may be provided in paragraph 

(a)(2) of this section), or D of this part) 

of a claim; or 

(2) The affirmance (under subpart C of 

this part) of a negative disability finding 

described in § 32.27. 

(b) A claimant may file with his 

request for a Hearing Officer 

determination such supporting evidence 

and legal arguments as he may wish to 

provide. 

§ 32.43 Appointment and assignment of 

Hearing Officers. 

(a) Pursuant to 42 U.S.C. 3787 

(employment and authority of hearing 

officers), Hearing Officers may be 

appointed from time to time by the 

Director, to remain on the roster of such 

Officers at his pleasure. 

(b) Upon the filing of a request for a 

Hearing Officer determination, the 

PSOB Office shall assign the claim to a 

Hearing Officer on the roster; the PSOB 

Office may assign a particular claim to 

a specific Hearing Officer if it judges, in 

its discretion, that his experience or 

expertise suit him especially for it. 

(c) Upon its making the assignment 

described in paragraph (b) of this 

section, the PSOB Office shall serve 

notice of the same upon claimant, with 

an indication that any evidence or legal 

argument he wishes to provide is to be 

filed simultaneously with the PSOB 

Office and the Hearing Officer. 

(d) With respect to an assignment 

described in paragraph (b) of this 

section, the Hearing Officer’s 

consideration shall be—

(1) De novo, rather than in review of 

the findings, determinations, 

affirmances, reversals, assignments, 

authorizations, decisions, judgments, 

rulings, or other actions of the PSOB 

Office; and 

(2) Consistent with subpart B, C, or D 

of this part, as applicable. 

(e) OJP’s General Counsel shall 

provide advice to the Hearing Officer as 

to all questions of law relating to a claim 

assigned pursuant to paragraph (b) of 

this section. 

§ 32.44 Hearing Officer determination. 

(a) Upon his determining a claim, the 

Hearing Officer shall file notice of the 

same simultaneously with the Director 

(for his review under subpart F of this 

part (in the event of approval)), the 

PSOB Office, and OJP’s General 

Counsel, which notice shall specify the 

factual findings and legal conclusions 

that support it. 

(b) Upon a Hearing Officer’s denying 

a claim, the PSOB Office shall serve 

notice of the same upon the claimant 

(and upon any other claimant who may 

have filed a claim with respect to the 

same public safety officer), which notice 

shall—

(1) Specify the Hearing Officer’s 

factual findings and legal conclusions 

that support it; and 

(2) Provide information as to Director 

appeals. 

(c) Upon a claimant’s failure (without 

reasonable justification or excuse) to 

pursue in timely fashion the 

determination of his claim pursuant to 

his filed request therefor, the Director 

may, at his discretion, deem the request 

to be abandoned, as though never filed. 

Not less than thirty-three days prior 

thereto, the PSOB Office shall serve the 

claimant with notice of the Director’s 

intention to exercise such discretion. 

§ 32.45 Hearings. 

(a) At the election of a claimant under 

subpart B or C of this part, the Hearing 

Officer shall hold a hearing, at a 

location agreeable to the claimant and 

the Officer, for the sole purposes of 

obtaining, consistent with § 32.5(c), 

(1) Evidence from the claimant and 

his fact or expert witnesses; and 

(2) Such other evidence as the 

Hearing Officer, at his discretion, may 

rule to be necessary or useful. 

(b) Unless, for good cause shown, the 

Director extends the time for filing, no 

election under paragraph (a) of this 

section shall be honored if it is filed 

with the PSOB Office later than ninety 

days after service of the notice described 

in § 32.43(c). 

(c) Not less than seven days prior to 

any hearing, the claimant shall file 

simultaneously with the PSOB Office 

and the Hearing Officer a list of all 

expected fact or expert witnesses and a 

brief summary of the evidence each 

witness is expected to provide. 

(d) At any hearing, the Hearing 

Officer—

(1) May exclude any evidence whose 

probative value is substantially 

outweighed by considerations of undue 

delay, waste of time, or needless 

presentation of cumulative evidence; 

and 

(2) Shall exclude witnesses (other 

than the claimant, or any person whose 

presence is shown by the claimant to be 

essential to the presentation of his 

claim), so that they cannot hear the 

testimony of other witnesses. 

(e) Each hearing shall be recorded, 

and the original of the complete record 

or transcript thereof shall be made a part 

of the claim file. 

(f) Unless, for good cause shown, the 

Director grants a waiver, a claimant’s 

failure to appear at a hearing (in person 

or through a representative) shall 

constitute a withdrawal of his election 

under paragraph (a) of this section. 

(g) Upon a claimant’s failure to pursue 

in timely fashion his filed election 

under paragraph (a) of this section, the 

Director may, at his discretion, deem the 

same to be abandoned. Not less than 

thirty-three days prior thereto, the PSOB 

Office shall serve the claimant with 

notice of the Director’s intention to 

exercise such discretion. 

§ 32.46 Director appeal. 

(a) In order to exhaust his 

administrative remedies, a claimant 

seeking relief from the denial of his 

claim shall appeal to the Director under 

subpart F of this part. 

(b) Consistent with § 32.8, any claim 

denial that is not appealed to the 

Director under paragraph (a) of this 

section shall constitute the final agency 

determination, unless the denial is 

reviewed otherwise under subpart F of 

this part. 


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46050 Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Rules and Regulations 

Subpart F—Director Appeals and 

Reviews 

§ 32.51 Scope of subpart. 

Consistent with § 32.1, this subpart 

contains provisions applicable to 

Director appeals and reviews of claim 

approvals and denials made under 

subpart E of this part, and reviews of 

claim approvals under the Act, at 42 

U.S.C. 3796c–1 or Public Law 107–37. 

§ 32.52 Time for filing Director appeal. 

(a) Unless, for good cause shown, the 

Director extends the time for filing, no 

Director appeal shall be considered if it 

is filed with the PSOB Office later than 

thirty-three days after the service of 

notice of the denial (under subpart E of 

this part) of a claim. 

(b) A claimant may file with his 

Director appeal such supporting 

evidence and legal arguments as he may 

wish to provide. 

§ 32.53 Review. 

(a) Upon the filing of the approval 

(under subpart E of this part) of a claim, 

the Director shall review the same. 

(b) The Director may review—

(1) Any claim denial made under 

subpart E of this part; and 

(2) Any claim approval made under 

the Act, at 42 U.S.C. 3796c–1 or Public 

Law 107–37. 

(c) Unless the Director judges that it 

would be unnecessary, the PSOB Office 

shall serve notice upon the claimant 

(and upon any other claimant who may 

have filed a claim with respect to the 

same public safety officer) of the 

initiation of a review under paragraph 

(a) or (b) of this section. Unless the 

Director judges that it would be 

unnecessary, such notice shall—

(1) Indicate the principal factual 

findings or legal conclusions at issue; 

and 

(2) Offer a reasonable opportunity for 

filing of evidence or legal arguments. 

§ 32.54 Director determination. 

(a) Upon the Director’s approving or 

denying a claim, the PSOB Office shall 

serve notice of the same simultaneously 

upon the claimant (and upon any other 

claimant who may have filed a claim 

with respect to the same public safety 

officer), and upon any Hearing Officer 

who made a determination with respect 

to the claim. In the event of a denial, 

such notice shall—

(1) Specify the factual findings and 

legal conclusions that support it; and 

(2) Provide information as to judicial 

appeals (for the claimant or claimants). 

(b) Upon a claimant’s failure (without 

reasonable justification or excuse) to 

pursue in timely fashion the 

determination of his claim pursuant to 

his filed Director appeal, the Director 

may, at his discretion, deem the same to 

be abandoned, as though never filed. 

Not less than thirty-three days prior 

thereto, the PSOB Office shall serve the 

claimant with notice of the Director’s 

intention to exercise such discretion. 

§ 32.55 Judicial appeal. 

(a) A claimant seeking relief from the 

denial of his claim may appeal 

judicially under 28 U.S.C. 1491(a) 

(claims against the United States). 

(b) Consistent with § 32.8, any 

approval or denial described in 

§ 32.54(a) shall constitute the final 

agency determination. 

Regina B. Schofield, 

Assistant Attorney General. 

[FR Doc. 06–6783 Filed 8–9–06; 8:45 am] 

BILLING CODE 4410–18–P 


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