[Federal Register Volume 71, Number 154 (Thursday, August 10, 2006)]
[Rules and Regulations]
[Pages 46028-46050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6783]



[[Page 46027]]

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Part V





Department of Justice





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Office of Justice Programs



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28 CFR Part 32



Public Safety Officers' Benefits Program; Final Rule

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

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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

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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-
V[eacute]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.

[[Page 46029]]

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:
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    \1\ E.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.
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    (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 double-payment 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 plainly-absurd 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

[[Page 46030]]

civilian capacity.'' Pub. L. 109-162, sec. 1164, 119 Stat. at 3120.
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    \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).
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    (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 law-enforcement 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.''
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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).'').
    \4\ See, 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.'').
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    (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].''
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    \5\ For 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.
    \6\ See, 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)).
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    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 
most-recent amendments to the PSOB Act:


[[Page 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 non-civilians 
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 (nearly-
identical) 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

[[Page 46032]]

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

[[Page 46033]]

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, 
hazardous-material 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

[[Page 46034]]

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, --
---- Fed. Cl. ------ (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, ------ Fed. Cl. --
---- (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

[[Page 46035]]

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 Sec.  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 thirty-day 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 time-frame 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.

[[Page 46036]]

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 foreign-based 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

[[Page 46037]]

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.

0
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).


Sec.  32.0  Scope of part.

    This part implements the Act.

Subpart A--General Provisions


Sec.  32.1  Scope of subpart.

    This subpart contains provisions generally applicable to this part.


Sec.  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.


Sec.  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--

[[Page 46038]]

    (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 
Sec.  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

[[Page 46039]]

    (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 
similarly-situated 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

[[Page 46040]]

    (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 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 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

[[Page 46041]]

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--

[[Page 46042]]

    (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.


Sec.  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.


Sec.  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.


Sec.  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):

[[Page 46043]]

    (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.


Sec.  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.


Sec.  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


Sec.  32.11  Scope of subpart.

    Consistent with Sec.  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.


Sec.  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 Sec.  32.15(a)(1)(i) (or the receipt of the certification described 
in Sec.  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.


Sec.  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

[[Page 46044]]

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 hazardous-materials 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;

[[Page 46045]]

    (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.


Sec.  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.


Sec.  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.


Sec.  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

[[Page 46046]]

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 legally-adoptive 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.


Sec.  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 Sec.  32.8, 
any denial that is not the subject of such a request shall constitute 
the final agency determination.

Subpart C--Disability Benefit Claims


Sec.  32.21  Scope of subpart.

    Consistent with Sec.  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.


Sec.  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 Sec.  32.25(a)(1)(i) (or receipt of the certification described in 
Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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).


Sec.  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 Sec.  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).


Sec.  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 Sec.  32.27 shall 
be reconsidered if the

[[Page 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 Sec.  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 Sec.  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 Sec.  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 Sec.  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.


Sec.  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 Sec.  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 Sec.  32.27; and
    (2) Of a negative disability finding that is affirmed pursuant to 
his motion for reconsideration under Sec.  32.27.
    (b) Consistent with Sec.  32.8, the following shall constitute the 
final agency determination:
    (1) Any denial not described in Sec.  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 Sec.  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


Sec.  32.31  Scope of subpart.

    Consistent with Sec.  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.


Sec.  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.


Sec.  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 three-quarter-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,

[[Page 46048]]

reduced by the amount of educational assistance benefits from non-
governmental 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 Sec.  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.


Sec.  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.


Sec.  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).


Sec.  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.

[[Page 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.


Sec.  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 Sec.  32.8, 
any denial that is not the subject of such a request shall constitute 
the final agency determination.

Subpart E--Hearing Officer Determinations


Sec.  32.41  Scope of subpart.

    Consistent with Sec.  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 Sec.  32.27), or D of this part.


Sec.  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 Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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 Sec.  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 Sec.  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.


Sec.  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 Sec.  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.

[[Page 46050]]

Subpart F--Director Appeals and Reviews


Sec.  32.51  Scope of subpart.

    Consistent with Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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 Sec.  32.8, any approval or denial described in 
Sec.  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