Public Safety Officers' Benefits Program, 76520-76536 [E8-29703]

Agencies

• Department of Justice
• Office of Justice Programs
• Justice Programs Office

[Federal Register Volume 73, Number 243 (Wednesday, December 17, 2008)]
[Rules and Regulations]
[Pages 76520-76536]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29703]


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DEPARTMENT OF JUSTICE

Office of Justice Programs

28 CFR Part 32

[Docket No.: OJP (BJA) 1478]
RIN 1121-AA75


Public Safety Officers' Benefits Program

AGENCY: Office of Justice Programs, Justice.

ACTION: Final rule.

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SUMMARY: The Office of Justice Programs (OJP) of the U.S. Department of 
Justice published the proposed rule for the Public Safety Officers' 
Benefits (PSOB) Program on July 10, 2008, 73 FR 39632. During the 
comment period, OJP received comments on its proposed rule from 
numerous parties. After further review of the proposed rule and careful 
consideration and analysis of all comments, OJP has made amendments 
that are incorporated into this final rule, which is intended (insofar 
as consistent with law) to be effective and applicable to all claims 
from and after the effective date hereof, whether pending (in any 
stage) as of that date or subsequently filed.

DATES: Effective January 16, 2009.

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:
    Further to Executive Order 12866's call upon agencies to examine 
existing regulations for opportunities to achieve their intended 
regulatory goal more effectively, and pursuant to 42 U.S.C. 3796c(a), 
3796(a) & (b), 3796d-3(a) & (b), and 3782(a) (each of which expressly 
authorizes the issuance of regulations), on July 10, 2008, OJP 
published the proposed rule for the PSOB Program. During the comment 
period, BJA received comments on its proposed rule from numerous 
interested parties: National police and fire associations; municipal 
police, fire, and rescue departments; survivors of fallen public safety 
officers; and individual concerned citizens, including claims 
attorneys. Additionally, Members of Congress commented on the proposal.
    Some commentators approved of the specific provisions proposed, but 
others were dissatisfied with them, finding one or another proposed 
provision confusing, unclear, or too restrictive, and expressing 
concerns about BJA's implementation of the program. One

[[Page 76521]]

Member of Congress, Representative Donald A. Manzullo, made the 
following comments in the Congressional Record:

    Madam Speaker, I rise to recognize the Department of Justice for 
recently proposed regulations relating to the Public Safety 
Officers' Benefit Program. The program provides death benefits for 
the survivors of public safety officers who die in the line of duty; 
and disability benefits to those officers who have been permanently 
and totally disabled by a catastrophic personal injury sustained in 
the line of duty, and thereby prevented from performing any gainful 
work; and also educational assistance benefits for surviving family 
members. Among other things, these proposed regulations will help to 
shore up the program against fraud and abuse by clarifying the 
requirements for certifications and their effect. I strongly support 
the mission of the Public Safety Officers' Benefit Program, and I 
commend the Department of Justice for keeping the regulations up to 
date and for taking action to ensure that the funds available go to 
those public safety officers (and their survivors) that deserve 
them. I would like to take a moment to comment on the statutory 
predicate for some of these regulations.
    As the 9th Circuit Court of Appeals recognized,\1\ Public Law 
94-430 creates a ``limited program,'' whose principal purpose is to 
help ensure that the families of ``public'' officers be protected 
from financial calamity that is likely to result from the death or 
permanent and total disability, in the line of duty, of the primary 
money-maker. The statute (including the two parallel 2001 benefits 
statutes, which do not, strictly speaking, amend the Public Law or 
directly affect the precise program it creates) enshrines various 
and competing policy considerations and purposes that it proposes to 
achieve by particular means that have been worked out, over the last 
30 years and more, in the legislative process. Because no law 
pursues its ends at all costs, the limitations expressly or 
implicitly contained in its text and structure are no less an 
articulation of its purposes (and the intent, goals, and policies 
that inform it), than its substantive grants of authority are. 
Benefits under these statutes-charges on the public fisc--are to be 
granted fairly, but not speculatively, or beyond what the statutory 
language unequivocally requires and unequivocally expresses, or 
beyond the letter of the difficult judgments reached in the 
legislative process and clearly reflected in the statutory text. It 
is precisely to enable the Department to balance and harmonize these 
various considerations into a single workable and coherent program 
that the law confers extraordinary administrative and interpretive 
authority on the Department. For example, at least seven distinct 
statutory provisions--42 U.S.C. 3796c(a) (twice), 3796(a) & (b), 
3796d-3(a) & (b), 3782(a)--expressly authorize the Department to 
issue program regulations and policies here, and the law expressly 
provides that those regulations and policies are determinative of 
conflict of law issues relating to the program, and that 
responsibility for making final determinations shall rest with the 
Department. Under the Public Law (as under the parallel 2001 
statutes), the very right to a death or disability benefit, which 
the Supreme Court correctly has recognized as a legal ```gratuity''' 
\2\ (and thus not ``remedial'' in nature), is not freestanding, but 
contingent, rather, upon a determination by the Department.
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    \1\ Russell, 637 F.2d 1261 (1980); Holstine, No. 80-7477 (Aug. 
4, 1982), 688 F.2d 846 (table).
    \2\ Rose v. Arkansas State Police, 479 U.S. 1, 4 (1986) (quoting 
legislative history).
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    When Public Law 94-430 was enacted in 1976, only the Circuit 
Courts or the old Court of Claims (of similar rank) heard appeals 
from final rulings of the Department of Justice thereunder, which 
meant that only one level of judicial review ordinarily was 
available to claimants and the Department, alike. In 1982 (when the 
appellate functions of the Court of Claims generally were merged 
into the newly-created Court of Appeals for the Federal Circuit), 
jurisdiction over these appeals--apparently as a result of an 
oversight--was not transferred to the Federal Circuit, and thus 
(unlike the case with other administrative appeals, see, e.g., 28 
U.S.C. 1295, 1296), by default, lay in what is now the Court of 
Federal Claims, established under Article I of the Constitution, 
rather than Article III, with an additional level of appeals 
available in the Federal Circuit. Although there are notable and 
distinguished exceptions,\3\ over the past decade or so, many of the 
Federal Claims Court's rulings on these appeals applied the law 
incorrectly,\4\ sometimes disregarding the express terms of the 
relevant statute \5\ or implementing regulations,\6\ or binding and 
applicable Federal Circuit/Court of Claims precedent,\7\

[[Page 76522]]

and even Supreme Court precedent.\8\ To order the administering 
agency to pay on a claim when payment is not clearly warranted by 
the programmatic statutes and their implementing regulations and 
administrative interpretive superstructure is as much an affront to 
the law as for the agency not to pay when payment is clearly 
required by those statutes and regulations.
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    \3\ E.g., Dawson, 75 Fed. Cl. 53 (2007); LaBare, 72 Fed. Cl. 111 
(2006); Cook, No. 05-1050C (Jun. 15, 2006); Porter, 64 Fed. Cl. 143 
(2005); One Feather, 61 Fed. Cl. 619 (2004); Davison, No. 99-361C, 
(Apr. 19, 2002); Brister, No. 01-180C (Mar. 27, 2002); Yanco, 45 
Fed. Cl. 782 (2000); Ramos-V[eacute]lez, No. 93-588C (Jan. 31, 
1995); Chacon, 32 Fed. Cl. 684 (1995); Nease, No. 91-1518C (Mar. 29, 
1993); see also Cartwright, 16 Cl. Ct. 238 (1989); Durco, 14 Cl. Ct. 
423 (1988); Wydra, No. 764-83C (Jan. 31, 1986); Tafoya, 8 Cl. Ct. 
256 (1985); North, 555 F.Supp. 832 (1982). When appealed, these 
decisions invariably have been affirmed.
    \4\ E.g., Winuk, 77 Fed. Cl. 207 (2007) (holding that the 
Department was required to accept, as legally sufficient 
certifications, instruments and language that would have been 
insufficient even for an ordinary certificate of service in court); 
White, 74 Fed. Cl. 769 (2006), appeal filed, No. 2007-5126; 
Hillensbeck, 74 Fed. Cl. 477 (2006) (holding that the position of 
the Department (which was actually correct, see, e.g., Nease, supra, 
slip op. at 5 n.4; 132 Cong. Rec. 27,928-929 (1986) (colloquy 
between Sens. Sasser and Thurmond)) was ``substantially 
unjustified''); Bice, 72 Fed. Cl. 432 (2006); Groff, 72 Fed. Cl. 68 
(2006); Messick, 70 Fed. Cl. 319 (2006); Hillensbeck, 69 Fed. Cl. 
369 (2006) (this holding immediately occasioned the enactment of 
corrective legislation, Pub. L. 109-162, Sec.  1164(a)(2)); 
Cassella, 68 Fed. Cl. 189 (2005); Hawkins, 68 Fed. Cl. 74 (2005) 
(this holding immediately occasioned the enactment of corrective 
legislation, see Pub. L. 109-162, Sec.  1164(a)(4)); Hillensbeck, 68 
Fed. Cl. 62 (2005); Bice, 61 Fed. Cl. 420 (2004); Davis, 50 Fed. Cl. 
192 (2001); Demutiis, 48 Fed. Cl. 81 (2000); Davis, 46 Fed. Cl. 421 
(2000); Greeley, 30 Fed. Cl. 721 (1994); see also Canfield, No. 339-
79C (July 27, 1982).
    \5\ E.g., Winuk, 77 Fed. Cl. at 225 (directing the agency to pay 
only one of two living parents the full benefit amount, despite the 
statutory command that the amount be divided between living parents 
``in equal shares''), and at 224 (holding certain instruments to be 
legally sufficient certifications, even though they did not contain 
elements expressly required by the statute--e.g., ``identification 
of all eligible payees of benefits,'' and acknowledgment that the 
decedent actually was ``employed by [the certifying] agency'' 
itself), and at 220-21 (holding that ``under the statute the 
[agency] is directed to expedite payment without further inquiry 
upon the requisite certification,'' even though the statute 
distinguishes between ``eligible payees of benefits'' (i.e., 
individuals--potentially eligible for payment of benefits under the 
statute--for whom the certifications are made by the public safety 
agencies), on the one hand, and ``qualified beneficiaries'' (i.e., 
individuals whose claims the Department of Justice determines to 
qualify for benefits under the statute and implementing regulations, 
upon considering those certifications as prima facie evidence), on 
the other), and at 218-225 (holding that a certification under the 
2001 statutes could go to status (i.e., that they authorize 
certification that an individual was an officer at the time of 
injury), even though, under those statutes, such certifications may 
go only to line-of-duty (i.e., properly speaking, they authorize 
certification only that an individual, acknowledged otherwise to 
have the requisite status, ``was killed or suffered a catastrophic 
injury'' under the required circumstances); Hillensbeck, 69 Fed. Cl. 
381-82 and 68 Fed. Cl. at 73-74 (holding, despite an express 
statutory reference to ``public employee member of a rescue squad or 
ambulance crew,'' that the agency committed legal error in 
understanding the statute to require members of rescue squads or 
ambulance crews to be public employees).
    \6\ E.g., Winuk, 77 Fed. Cl. at 222 (holding the agency to have 
committed legal error, ``in the absence* * * of a regulatory 
definition of service to a public agency in an official capacity''); 
but see 28 CFR 32.3 (containing a highly relevant definition of 
``Official capacity''), and at 220-21 (holding that ``under the 
statute the [agency] is directed to expedite payment without further 
inquiry upon the requisite certification''); but see 28 CFR 32.3 
(definitions of ``Eligible payee'' ] (1), ``Employed by a public 
agency'' ] (1), & ``Qualified beneficiary'' ] (1)(i)), 
32.6(b)(2)(ii), 32.53(b)(2)); Bice, 61 Fed. Cl. at 434 (finding the 
agency to have committed prejudicial legal error when it declined to 
consider action by a private non-profit memorial foundation 
chartered under State law to be ``evidence [or a] finding[] of fact 
presented by [a] State, local, [or] Federal administrative [or] 
investigating agenc[y]'' under since-repealed 28 CFR Sec.  32.5).
    \7\ E.g., (a) Winuk, 77 Fed. Cl. at 221-22, 225 (giving 
dispositive effect to post-hoc State government action purporting to 
alter the actual facts at issue; but see Chacon, 48 F.3d 508, 513 
(1995) (post-hoc State government actions ``do not erase the 
fact[s]''); cf. also Groff, 493 F.3d 1343, 1355 (2007) (``post-
mortem statements'' of government agencies do not ``transform[ 
private parties] into government employees'')), and at 218-21 
(declaring it erroneous for the agency not to have understood 
``should'' to mean ``must''; but see Maggit, 202 F.3d 1370, 1378 
(2000) (``should'' in benefits law not understood to mean 
``must'')), and at 224 (holding the decedent's lack of any legal 
authority or legal duty to engage in public safety activity to be 
irrelevant to whether he was a public safety officer (as opposed to 
being a good Samaritan); but see Amber-Messick, 483 F.3d 1316, 1323-
25 (2007) (public safety officer status turns on actual legal 
authority to engage in requisite public safety activity); Cassella, 
469 F.3d 1376, 1386 (2006) (public safety officer status turns on 
whether one is ``appointed for and given the authorization or 
obligation to perform [requisite public safety] duties''); Hawkins, 
469 F.3d 993 (2006) (the decedent's ``actual responsibilities or 
obligations as appointed, rather than some theoretical 
authorizations, are controlling'' for determining public safety 
officer status); Howard, 231 Ct. Cl. 507, 510 (1981) (``eligibility 
under the Act turns on whether the specific activity causing death 
was an inherent part of employment as an officer and whether it was 
required'' of the decedent); Budd, 225 Ct. Cl. 725, 726-27 n.6 
(1980) (the activity causing ``the death must be `authorized, 
required, or normally associated with' an officer's * * * 
duties''));
    (b) White, 74 Fed. Cl. at 776-79 (terming ``ridiculous'' the 
agency's position that the inchoate right to the gratuity expired 
upon the death of the statutory beneficiary prior to actually 
receiving it); but see Semple, 24 Ct. Cl. 422 (1889) (the inchoate 
right to a legal gratuity expires upon the death of a statutory 
beneficiary prior to actually receiving it); cf. also 16 Att'y Gen. 
408 (1879));
    (c) Hillensbeck, 74 Fed. Cl. at 481 (directly contrary to the 
precise rationale that informs the Federal Circuit's reversal of the 
same judge, a few days earlier, in a substantially-similar case, 
Hawkins, 469 F.3d 993, 1002 (2006)), and at 482-84 (adjusting and 
awarding attorney fees in a manner directly contrary to the holding 
in Levernier Constr., 947 F.2d 497, 503-04 (1997)); and
    (d) Davis, 50 Fed. Cl. at 211 and 46 Fed. Cl. at 424-25 
(declaring controlling language in Budd, 225 Ct. Cl. at 727 n.6, to 
be mere ``dicta'' and ``non-precedential,'' and either 
``erroneous[]'' or ``mistaken[]''); but see Howard, 229 Ct. Cl. at 
510 (holding that same Budd language to be legally 
``dispositive'')).
    \8\ E.g., Winuk, 77 Fed. Cl. at 225 (declaring the 2001 statutes 
to be ``remedial laws''); White, 74 Fed. Cl. 773 (declaring Pub.L. 
94-430 to be a ``remedial statute''); LaBare, 72 Fed. Cl. at 124 (a 
correct ruling, overall, but unfortunately describing P.L. 94-430 as 
``remedial legislation''); Bice, 72 Fed. Cl. at 450 (declaring Pub. 
L. 94-430 to be a ``remedial statute''); Groff, 72 Fed. Cl. at 79 
(declaring P.L. 94-430 to be ``remedial in nature''); Bice, 61 Fed. 
Cl. at 435 (declaring P.L. 94-430 to be a ``remedial statute''); 
Davis, 50 Fed. Cl. at 208 (describing P.L. 94-430 in remedial 
terms); Demutiis, 48 Fed. Cl. at 86 (declaring P.L. 94-430 to be 
``remedial in nature''); but see Rose, 479 U.S. at 4 (holding the 
program benefit to be a legal ```gratuity''' (cf. Lynch, 292 U.S. 
571, 577 (1934); 36 Att'y Gen. 227, 230 (1930))). No opinion of the 
Federal Circuit/Court of Claims describes the program as 
``remedial.''
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    Overall, the sixteen opinions issued to date by the Federal 
Circuit (and its predecessor) under the statute \9\ indicate a 
proper understanding of the law and the application of the Chevron 
doctrine to the Department's determinations. (All but two of these 
opinions were affirmances of the administering agency; in Demutiis, 
the agency was affirmed on all points but a very minor one (relating 
to application of a (now-repealed) regulation),\10\ and the 1980 
holding in Harold, which reversed the Department's determination, 
itself soon thereafter was rendered moot, as a practical matter, by 
a statutory amendment consonant with the Department's position.) For 
these reasons, the corrective proviso in the consolidated 
appropriations legislation, entrusting judicial appeals under Public 
Law 94-430 (and the two 2001 statutes) exclusively to the Federal 
Circuit\11\ (and returning to a single level of judicial review, as 
originally intended) should further the purposes of the program, 
reduce litigation costs for claimants and the taxpayers, and serve 
the interests of justice.
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    \9\ Groff, 493 F.3d 1343 (2007) (two cases); Amber-Messick, 483 
F.3d 1316 (2007); Cassella, 469 F.3d 1376 (2006); Hawkins, 469 F.3d 
993 (2006); Demutiis, 291 F.3d 1373 (2002); Yanco, 258 F.3d 1356 
(2001); Greeley, 50 F.3d 1009 (1995); Chacon, 48 F.3d 508 (1995); 
Canfield, No. 339-79 (Dec. 29, 1982); Russell, 231 Ct. Cl. 1022 
(1982); Melville, 231 Ct. Cl. 776 (1982); Howard, 231 Ct. Cl. 507 
(1981); Smykowski, 647 F.2d 1103 (1981); Morrow, 647 F.2d 1099 
(1981); Budd, 225 Ct. Cl. 725 (1980); Harold, 634 F.2d 547 (1980). 
No opinion was issued in Bice, 227 Fed. App'x 927 (2007); Porter, 
176 Fed. App'x 111 (2006); or One Feather, 132 Fed. App'x 840 
(2005).
    \10\ Without opinion, in Bice, the Federal Circuit affirmed the 
Federal Claims Court judgment, which was based entirely on a 
misapplication of this same now-repealed regulation.
    \11\ In providing that the ``appeals from final decisions of the 
Bureau'' that it refers to specifically include those ``under any 
statute authorizing payment of benefits described under subpart 1'' 
of Pub. L. 90-351, title I, part L (i.e., the 2001 statutes), the 
legislation (among other things) is framed to counter the holding in 
Winuk, 77 Fed. Cl. at 220-21, that ``under the statute the [agency] 
is directed to expedite payment without further inquiry upon the 
requisite certification,'' as a result of which holding the 
Department was ordered by the court to accept as ``certified'' 
purported ``facts'' that were known not to be true, and, further, to 
accept such ``certification'' not as mere prima facie evidence 
(rebuttable by other evidence) of those purported ``facts,'' but as 
dispositive and binding on the Department, thus purporting to deny 
it its legal authority to render meaningful, substantive ``final 
decisions'' under those statutes.

154 Cong. Rec. E1,833 (daily ed., Sept. 18, 2008) (some minor 
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formatting changes made).

    Finally, the Department held a conference call with representatives 
from the following organizations, shortly after the notice of proposed 
rulemaking was issued, in which it provided a briefing on the proposals 
and offered an opportunity for questions and answers: Fraternal Order 
of Police, National Sheriffs' Association, International Association of 
Fire Chiefs, National Fallen Firefighters Foundation, National 
Association of Police Organizations, Major County Sheriffs' 
Association, Sergeants Benevolent Association of New York City, 
Concerns of Police Survivors, Congressional Fire Services Institute, 
National Organization of Black Law Enforcement Executives, National 
Fire Protection Association, National Volunteer Fire Council, 
International Association of Women Police.
    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 a few clarifying changes to 
provisions in the proposed rule where there were some previously 
unnoticed ambiguities, or where the language was more complex than 
necessary. This final rule is intended (insofar as consistent with law) 
to be effective and applicable to all claims from and after the 
effective date hereof, whether pending (in any stage) as of that date 
or subsequently filed. A general discussion of the comments received 
and changes made, broken out generally by topic area, follows:
     Authorized commuting. Several comments on this proposed 
definition were received, some of which questioned whether the proposed 
changes (which generally are intended to broaden the scope of coverage) 
were unduly narrow. Overall, the comments focused particularly on four 
points. First, some commentators objected to the proposed addition of 
``(as authorized)'' to paragraph (1) of the definition, opining that 
the added term could preclude eligibility for benefits ``unless the 
qualifying public safety officer was specifically `authorized' to 
respond to the public safety emergency.'' These commentators 
misunderstand the term, which is in no way limited to direct, 
particular, or specific authorizations and would not require that the 
responses at issue be ``specifically'' authorized. Nothing in the 
proposed rule indicated, or should be understood to indicate, such a 
result, which would be sharply contrary to OJP's intention, which is to 
cover both general authorizations (e.g., any response obligated or 
authorized by statute, rule, regulation, condition of employment or 
service, official mutual-aid agreement, or other law, under the 
auspices of the relevant public agency), and specific authorizations 
(e.g., any response obligated or authorized by particular direction, 
indication, or command).
    Second, some commentators questioned the use of ``and 
extraordinary'' in the portion of paragraph (1) of the definition that 
was proposed to expand coverage, asking whether the term were ``a 
reference to dangerous circumstances''--as opposed to a reference to 
something that ``simply is not commonplace''--and insisted that 
eligibility should not be precluded in cases where the injury was 
sustained during travel ``pursuant to a particular request'' by the 
public safety agency, to perform even non-dangerous line of duty public 
safety activity. OJP agrees, and nothing in the proposed rule 
indicated, or should be understood to indicate, otherwise. In the 
proposed rule, the term ``extraordinary'' was intended to mean nothing 
more and

[[Page 76523]]

nothing less than what it says on its face: ``not ordinary.'' As was 
stated in the preamble to the PSOB rule promulgated on August 10, 2006,

although the PSOB Act does not cover all conceivable commuting 
injuries, neither does it or the term ``line of duty'' exclude all 
commuting injuries. [T]he 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)). * * * In the case of 
officers who are commuting to or from work [other than under certain 
circumstances], 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.

71 FR 46,028, 46,032-033. The term ``extraordinary'' accordingly is 
used in the provision to preclude any suggestion or inference that the 
portion of paragraph (1) that would expand coverage encompasses 
ordinary commuting.
    Third, some commentators made the excellent suggestion that the 
definition also should cover travel pursuant to a public safety 
agency's call for one of its public safety officers to perform 
emergency response activity within the agency's authority (as opposed 
to a call to perform only one of the four specific species of public 
safety activity otherwise defined in the regulations). OJP agrees and 
accordingly has made changes in paragraph (1) of this definition, in 
paragraph (1)(ii)(B) of the definition of Line of duty activity or line 
of duty action, and in section 32.5(i).
    Finally, one commentator expressed sound concerns that the proposed 
definition did not make clear that the word ``situs'' therein referred 
to any place designated for the performance of public safety activity. 
A conforming change has been made to the rule.
     Divorce. One commentator correctly pointed out that the 
definition of this term, as proposed, did not make clear on its face 
that a legal divorce (discussed in the first half of the definition) 
always trumps the de-facto-divorce provisions in the second half 
thereof. A change has been made accordingly.
     Certification. The proposed provisions generated several 
different comments, but overall the general concern was that the 
provisions--particularly as applied to prerequisite certifications 
currently described in sections 32.15 and 32.25 of the PSOB regulations 
and most particularly as applied to ``claimants, who may not be 
sophisticated''--potentially could ``result in the improper rejection 
of certain claims on non-substantive, technical grounds'' by 
``requiring a near-impossible-to-attain level of precision.'' These 
comments, which often were grounded in significant misconceptions of 
the facts and holdings of decisions of the Court of Federal Claims, are 
somewhat inapposite, because (as indicated in the preamble to the 
proposed rule) the thrust of these provisions is merely to incorporate 
current general agency practice into the body of the regulations: The 
primary purpose of placement in the regulations, therefore, is to 
provide the public with clear notice of what the agency in main already 
has been doing in the PSOB Program for years (in an effort to ``help to 
shore up the program against fraud and abuse,'' as Rep. Manzullo 
recognized), not to provide the agency with a regulatory predicate to 
start a new practice. (This is in keeping with the holdings of the 
Federal Circuit in Amber-Messick v. United States, 483 F.3d 1316 
(2007), cert. denied, 128 S.Ct. 648 (2007); Groff v. United States, 493 
F.3d 1343 (2007), cert. denied, 128 S.Ct. 1219 (2008), that the 
agency's practice already has ``the force of law,'' even if not in the 
regulation) In sum, the apprehensions of the commentators on this point 
are unwarranted, particularly as sections 32.15 and 32.25 both contain 
express provisions for administrative waiver of the certification 
requirements. In connection with the hundreds of claims that it has 
processed with the basic substance of the proposed definition of 
Certification in place, BJA has not hesitated to waive the 
certification requirements as appropriate. Moreover, where there has 
been a significant defect (as to form or substance) in certifications 
that have been received, BJA's invariable practice has been to offer 
the certifying party (almost always a public agency, rather than a 
claimant) ample notice of the defect and ample opportunity to cure it.
     Commonly accepted. Several commentators, apprehensive as 
to how it might come to be applied, objected to what they seem to have 
believed was a proposed ``new'' definition of Commonly accepted. No 
``new'' definition of that term was proposed: The same definition, 
rather, currently found in the regulation at section 32.13 (and applied 
to hundreds of PSOB claims, without incident, for several years), 
simply was proposed to be moved, without any change whatsoever, to 
section 32.3.
     Training. Several comments (one of which was very 
favorable) were received in connection with the proposed provisions 
relating to training. The critical comments focused particularly on 
four points. First, some commentators objected variously to the 
proposed inclusion of ``official'' and/or ``his public agency'' in 
connection with ``training program'' within the definitions of Line of 
duty activity or line of duty action and Participation in a training 
exercise, and suggested that the words ``official'' and/or ``his public 
agency'' be removed, because ``a plain reading of the proposed language 
would seem to suggest that a local or State law enforcement officer who 
attends a training program conducted by the Federal government and dies 
as a result of his participation in the program would not be considered 
as having died in the line of duty, even if the officer's employing 
agency approved or even directed that the officer participate in the 
training program.'' These commentators misunderstand the rule; 
specifically, the commentators appear to misapprehend the significance 
of the definition (included in the proposed rule) of Official training 
program of a public agency, which expressly encompassed any program 
whatsoever--``(1) That is officially sponsored, -conducted, or -
authorized by the public agency; and (2) Whose purpose is to train 
public safety officers in (or to improve their skills in), specific 
activity or actions encompassed within their respective lines of 
duty.'' OJP intended this proposed definition to be applied to the term 
found in the proposed definitions of Line of duty activity or line of 
duty action and Participation in a training exercise, and nothing in 
the proposed rule indicated, or should be understood to indicate, 
otherwise or to require that the officer's public agency itself offer 
the training: Under the rule, it suffices on this point merely that the 
training be sponsored, conducted, or authorized by the officer's public 
agency. To clarify any possible confusion here, OJP has amended the 
term defined to read ``Official training program of a public safety 
officer's public agency,'' and has made conforming changes in its text.

[[Page 76524]]

    Second, some commentators objected variously to the proposed 
inclusion of ``mandatory'' in connection with training activity in the 
definition of Participation in a training exercise, and suggested that 
it be removed, because it could ``exclude officers who, even with their 
agencies' approval, participate in voluntary training.'' As to the word 
``mandatory,'' the comments have persuaded OJP that the provision as 
proposed would (inadvertently) make the rule more restrictive than the 
statute; accordingly (as described immediately below) it has made 
changes in the final rule to ensure that non-mandatory activity also is 
covered.
    Third, as to the proposed inclusion of ``formal'' and/or 
``structured,'' the comments appear to misapprehend the statute. For 
the presumption established by 42 U.S.C. 3796(k) to arise, a public 
safety officer must have ``engaged in a situation * * * involv[ing 
certain public safety] activity'' or ``participated in a training 
exercise.'' Applying the traditional interpretive canon noscitur a 
sociis, 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.''), BJA has understood the use of ``participation in a 
training exercise'' in the statute to be informed by the parallel use 
there of ``engagement in a situation involving public safety 
activity'': There is a distinction between ``engagement in a situation 
involving public safety activity'' (which is what the statute requires 
as a predicate for the presumption, and notionally would include such 
things as--

involvement in a physical struggle with a suspected or convicted 
criminal; performing a search and rescue mission; performing or 
assisting with emergency medical treatment; performing or assisting 
with fire suppression; involvement in a situation that requires 
either a high speed response or pursuit on foot or in a vehicle; 
participation in hazardous material response; responding to a riot 
that broke out at a public event; and physically engaging in the 
arrest or apprehension of a suspected criminal[,]

149 Cong. Rec. H12,299 to H12,300 (daily ed., Nov. 21, 2003) (statement 
of Rep. Sensenbrenner); id. at S16,053 (Nov. 25, 2003) (statement of 
Sen. Leahy)), on the one hand, and mere ``engagement in public safety 
activity'' (which could include--

sitting at a desk; typing on a computer; talking on the telephone; 
reading or writing paperwork or other literature; watching a police 
or corrections facility's monitors of cells or grounds; teaching a 
class; cleaning or organizing an emergency response vehicle; signing 
in or out a prisoner; driving a vehicle on routine patrol; and 
directing traffic at or participating in a local parade[,]

149 Cong. Rec. at H12,300; id. at S16,053--all of which are important 
public safety activities, but nonetheless do not give rise to the 
presumption), on the other. And just as ``engagement in a situation 
involving public safety activity'' is not the same thing as mere 
``engagement in public safety activity,'' so ``participation in a 
training exercise'' (which is what the statute requires as a predicate 
for the presumption and suggests a certain concreteness analogous to 
that implied by ``engagement in a situation'') is not the same thing as 
mere ``training.'' The use of ``formal'' and ``structured'' (and other 
terms) in the current, proposed, and final definitions of Participation 
in a training exercise thus are intended to effectuate the term (``a 
training exercise'') actually used in 42 U.S.C. 3796(k). In sum, the 
single word ``mandatory'' in the proposed definition of Participation 
in a training exercise has been replaced with ``mandatory, rated (i.e., 
officially tested, -graded, -judged, -timed, etc.), or directly 
supervised, -proctored, or -monitored,'' which BJA believes to conform 
accurately to the concreteness implied by statutory term ``a training 
exercise.'' Of course, in the definition of Line of duty activity or 
line of duty action where section 3796(k) is not implicated (and thus 
where there is no statutory requirement that there be ``a training 
exercise''), mere ``training'' in the line of duty, rather than 
``participation in a training exercise,'' would be sufficient on this 
point.
    Finally, BJA received one comment on its proposal to include 
``trainers,'' expressly, within paragraph (1)(ii)(B) of the definition 
of Line of duty activity or line of duty action (i.e., within the 
provision relating to ``secondary-duty'' officers); specifically, the 
commentator urged the agency to include ``primary-duty'' trainers, as 
well. The commentator appears to have misunderstood the structure of 
the regulation. Assuming the training activity to be obligated or 
authorized by statute, rule, regulation, condition of employment or 
service, official mutual-aid agreement, or other law, under the 
auspices of the relevant public agency, ``primary-duty'' trainers (like 
``primary duty'' trainees, and ``secondary-duty'' trainees) already are 
covered by the provisions of paragraph (1). The change in the 
regulation will enable ``secondary-duty'' trainers to be covered, as 
well.
     Heart attack. One commentator thought the proposed 
definition of this term to be too broad. Other commentators suggested 
that the proposed definition, which is broader than the definition 
currently found in the regulations, should be broadened further to 
cover ``situations where the heart stops due to chest trauma'' (e.g., 
from ``a lethal, heart-stopping blow to the chest'' received in the 
line of duty). These latter commentators misunderstand the function of 
this definition, which applies only where the provisions of 42 U.S.C. 
3796(k) (which create a legal presumption of injury under certain 
circumstances where there is no actual injury) are implicated. The 
principal operative provision of the PSOB Program, however, is 42 
U.S.C. 3796(a), which comes into play whenever ``a public safety 
officer has died as the direct and proximate result of a personal 
injury sustained in the line of duty.'' (A similar provision, 
applicable only to permanent and total disability, rather than death, 
is found at 42 U.S.C. 3796(b).) Since the very beginning of the program 
(in 1976), the Department consistently has understood 42 U.S.C. 3796(a) 
(and also 42 U.S.C. 3796(b), since its enactment) to cover every 
situation where the heart of a public safety officer has stopped due to 
chest trauma received in the line of duty. In other words, a claim 
based on an officer who, in the line of duty, receives a heart-stopping 
blow to the chest that causes his death has no need of the presumption 
established by 42 U.S.C. 3796(k), because that blow in principle would 
be an ``injury'' that already is covered under 42 U.S.C. 3796(a), 
without any regard whatsoever to the provisions of 42 U.S.C. 3796(k). 
As was stated in the preamble to the PSOB rule proposed on July 26, 
2005,

    Where the requirements of [42 U.S.C. 3796(k)] are not met (e.g., 
where disability (rather than death) results), the absence of the 
statutory presumption does not necessarily entail the failure of 
claims based on heart attack or stroke; all such claims, rather, are 
governed by the ordinary rules applicable to the PSOB program. See, 
e.g., Greeley v. United States, 50 F.3d 1009 (Fed. Cir. 1995); Durco 
v. United States, 14 Cl. Ct. 424 (1988); North v. United States, 555 
F.Supp. 382 (Cl. Ct. 1982); Russell v. United States, 231 Ct. Cl. 
1022 (1982); Smykowski v. United States, 647 F.2d 1103 (Ct. Cl. 
1981); Morrow v. United States, 647 F.2d 1099 (Ct. Cl. 1981).

71 FR 43,078, 46,079; see also Cook v. United States, No. 05-1050C 
(Fed. Cl., June 15, 2006); Askew v. United States, No. 542-83C (Cl. 
Ct., Aug. 27, 1984); Gudzunas v. United States, No. 446-83C (Cl. Ct., 
July 2, 1984); Canfield v. United States, No. 339-79 (Fed. Cir., Dec. 
29, 1982).

    One commentator also proposed adding a list of medical conditions 
to the definition of Heart attack (and to the definition of Stroke). 
All of the items on

[[Page 76525]]

the two suggested lists that actually are heart attacks or strokes are 
covered by the proposed change in the regulations.
    BJA understands the proposed definition of Heart attack, to which 
no change has been made, to cover everything that is commonly 
understood within the medical profession to be a ``heart attack'' (and 
nothing more) and thus to give full effect to the provisions of 42 
U.S.C. 3796(k).
     Notice of potential existence of ``competent medical 
evidence to the contrary'' (32.14(c)). The proposed provisions relating 
to requests for information in connection with the potential existence 
of ``competent medical evidence to the contrary'' appear to have 
generated considerable confusion, which may have arisen through an 
apparent misapprehension on the part of some commentators (though not 
all) as to the purpose of proposed section 32.14(c), and the October 2, 
2007, policy memorandum from which it derives. Contrary to this 
misapprehension, proposed section 32.14(c) (like the policy memorandum) 
relates only to the question of when BJA should ``request'' specific 
medical history records from the claimant relating to ``competent 
medical evidence to the contrary''; neither the memorandum nor the 
proposed section relates at all to the very different question of 
whether ``competent medical evidence to the contrary'' actually exists 
or not, such that the claim should be denied. In other words, the 
purpose of the proposed provision (like that of the policy memorandum) 
was to govern when (and under what circumstances) the PSOB Office would 
provide the claimant with notice that the claim file appeared to 
contain ``competent medical evidence to the contrary'' that made it 
possible/likely that the claim was going to fail, unless sufficient 
medical history records (or other evidence) could be provided to 
counter it; in sharp contrast, nothing in the proposed provision (or 
the memorandum) spoke to what the PSOB Office should, or should not, 
consider ``competent medical evidence to the contrary'' itself to be: 
That term is defined in (and governed by) the regulations, at section 
32.13. Thus, the provision in the memorandum that ``the mere presence 
of cardio-vascular disease/risk factors * * * shall not be considered'' 
means that those factors ``shall not be considered'' for purposes of 
determining whether or not to provide the claimant with notice (i.e., 
for purposes of ``requesting'' medical history records); it does not 
mean that the presence of those factors ``shall not be considered'' in 
determining if there is ``competent medical evidence to the contrary.'' 
It is important to recall that the memorandum was issued in response to 
the Congressional outcry (late in the summer of 2007) over an agency 
practice (in place from September 2006 to early spring of 2007) to 
obtain 10 years of medical history records as a matter of course in 
connection with every claim that implicated the provisions of 42 U.S.C. 
3796(k), even where there were nothing in the claim file that 
affirmatively suggested that ``competent medical evidence to the 
contrary'' might be a relevant consideration in determining the claim. 
As indicated in the report by the Department's Office of the Inspector 
General on the Department's ``Implementation of the Hometown Heroes 
Survivors Benefits Act of 2003'' ( I-2008-05, p. 27 (March 
2008)), the Director of BJA issued the memorandum to enshrine in 
writing a policy that the PSOB Office should ``request'' such records 
only where there was such a suggestion:

    On October 2, 2007, the BJA Director issued a memorandum 
directing the PSOB Office to request 10 years of medical records for 
Hometown Heroes Act claims only if the evidence in a case file 
suggests that something other than the line-of-duty activity caused 
the heart attack or stroke. If an autopsy report, coroner's report, 
or death certificate identifies the presence of cardiovascular 
disease or other risk factors, this information will not be 
considered unless the case file shows that the decedent knew of and 
continued to aggravate these conditions.

Nonetheless, as indicated above, many commentators appear to have 
misunderstood the purpose of the proposed provision (and the policy 
memorandum); in contrast, one very-detailed comment, from a claims 
attorney, clearly did grasp the essence of the matter correctly: This 
latter comment, although generally favorable to the proposed rule, was 
severely critical of proposed section 32.14(c). In particular, the 
commentator was disturbed by proposed paragraph 32.14(c)(3), because--

[b]y its terms, unless the extremely restrictive conditions 
specified at (c)(1) and (c)(2) are satisfied, it would seem to 
forbid the PSOB Office from informing a practitioner/claimant that 
there is a problem with the claim that medical history records could 
cure, even if the problem is only a minor one and easily curable.

    The commentator found it difficult to understand why the provision 
was proposed,

which would doom some claims to be denied at the initial level, when 
a simple notice to the claimants or their counsel could save them. * 
* * A more perfect plan to deny claims, or make them more expensive 
by forcing appeals unnecessarily, could hardly be devised. I hope 
this was not intentional.

    In addition, the commentator objected to proposed paragraph 
32.14(c)(4):

* * * I had thought the Department's job was to ``consider'' all the 
evidence filed in connection with a claim, whether supportive of the 
claim or not. Does this proposed provision mean that the Department 
will not be ``considering'' all evidence filed in connection with 
claims? If so, what, exactly, will the Department be doing with such 
evidence, and on what legal basis will it not be ``considering'' it? 
If not, what possible purpose can be served by specifying, in just 
this one limited circumstance, that the evidence will be considered? 
Has no lawyer in the Administration ever heard of the ``expressio 
unius exclusio alterius'' canon of construction?

The commentator also criticized the use of the term ``request'' in 
proposed paragraphs 32.14(c)(1) and (c)(3), as being inconsistent with 
the regulatory provisions governing burdens of proof; to this end 
(unless the term were removed in the final rule), the commentator 
requested clarification ``[i]f the `request' reference is intended to 
mean anything other than merely offering practitioners/claimants a 
reminder notice of their open and ongoing opportunity to file 
evidence.'' Finally, the commentator asked for clarification as to the 
relationship between the term Risky behavior, found in the current 
regulations, and the term ``reckless behavior,'' used in proposed 
section 32.14(c)(2)(i), opining that it would have a deleterious effect 
on claims if the two terms were not defined identically; the 
commentator suggested that, to avoid this deleterious effect, in that 
section the latter term should be replaced by the former, because ``the 
term `risky' behavior here offers distinct advantages, in that the 
term, as defined in the regulation, has a very precise and strictly 
limited meaning, while `reckless' behavior, unless otherwise defined in 
some restrictive way, would seem to have a free ranging and very broad 
meaning.'' The commentator went on to suggest that, because ``all PSOB 
claims are subject to the provisions of section 1202(1), (2), and (3)'' 
of title I of the Omnibus Crime Control and Safe Streets Act of 1968, 
the relationship between those statutory provisions and the regulatory 
definition of Risky behavior should be specified in the regulations so 
as to avoid uncertainty.
    Some aspects of the immediately-foregoing comments (though not the 
particular and concrete details) were echoed in the comments received 
from a national organization, which added its

[[Page 76526]]

concern that under ``the rules as written * * * officers may choose not 
to seek medical attention * * * since it could be in their best 
interests not to document those issues in their medical record,'' and 
expressed regret that, under the proposed rule, ``now, PSOB is being 
looked at as an entitlement.'' Finally, several other commentators 
indicated dissatisfaction with the structure of proposed paragraphs 
32.14(c)(1) and (c)(2), finding it to be confusing and unnecessarily 
complex.
    Further to the foregoing comments, the agency has made several 
changes to this provision, simplifying the structure of what was 
proposed as paragraphs 32.14(c)(1) and (c)(2) (largely, though not 
exactly, along the lines suggested by several commentators), and 
removing the predicates for the ``expressio unius exclusio alterius'' 
and ``forbidden communications'' problems correctly pointed out by the 
commentator (discussed in detail above). Lest there be any 
misunderstanding, the agency wishes to emphasize that the provisions of 
paragraph 32.14(c) will govern when medical history records will be 
``requested'' in connection with PSOB Office determinations of whether 
there is ``competent medical evidence to the contrary'' or not: Under 
the provision, the mere existence of cardio-vascular-disease risk 
factors (even severe ones) will not trigger such a ``request''; rather, 
only where the claim file already contains indications that there may 
be ``competent medical evidence to the contrary'' (i.e., evidence that 
could defeat the claim) will the agency ``request'' information from 
the claimant. In other words, although a claimant always may provide 
the agency with evidence, information, and legal arguments in support 
of the claim, under section 32.14(c) the agency itself will take the 
proactive step of advising the claimant of a perceived weakness in the 
claim (relating to ``competent medical evidence to the contrary''), so 
that the claimant may act (if he wishes) to remedy that weakness.
     Definition of ``Act'' (and effective-date provisions). One 
comment correctly pointed out that, despite express reference to Dawson 
v. United States, 75 Fed. Cl. 53 (2007) (involving the issue of when 
and how statutory amendments become effective), the proposed rule, 
which contained ``numerous references to the effective dates of 
statutory enactments where those enactments themselves specify 
precisely how and when they become effective'' omitted any ``provision 
indicating the effective date, or the manner of application, where 
those enactments do not so specify.'' The rule has been changed to 
correct this omission, in keeping with Dawson and Bice v. United 
States, 61 Fed. Cl. 420, 437 (2004). (The change relates strictly to 
statutory amendments, however; regulatory amendments, including this 
final rule, will continue to be governed by a different principle, see 
generally, e.g., Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008); 
Bellsouth Telecomms. v. Southeast Telephone, 462 F.3d 650 (6th Cir. 
2006); Combs v. Comm'r of Social Security, 459 F.3d 640 (6th Cir. 2006) 
(en banc); Nat'l Mining Ass'n v. Dep't of Labor, 292 F.3d 849 (D.C. 
Cir. 2002); Pine Tree Medical Assocs. v. Sec'y of Health & Human 
Servs., 127 F.3d 118 (1st Cir. 1997); see also, e.g., Groff, 493 F.3d, 
at 1350-1351 & n.2; cf., e.g., Morrow v. United States, 647 F.2d 1099, 
1101 (Fed. Cir. 1981) (in which the court applied PSOB regulations 
(effective May 6, 1977) that post-dated the Oct. 8, 1976, alleged 
injury); Smykowski v. United States, 647 F.2d 1103, 1105 (Ct. Cl. 1981) 
(in which the court applied PSOB regulations (effective May 6, 1977) 
that post-dated the Oct. 5, 1976, alleged injury); Canfield v. United 
States, No. 339-79 (Fed. Cir., Dec. 29, 1982), 703 F.2d 583, 585 
(table) (in which the court applied PSOB regulations (effective May 6, 
1977) that post-dated the Dec. 20, 1976, alleged injury). Consistent 
with that principle governing regulations, therefore, as indicated 
above this final rule is intended (insofar as consistent with law) to 
be effective and applicable to all claims from and after the effective 
date hereof, whether pending (in any stage) as of that date or 
subsequently filed.) Another comment correctly indicated that some of 
the parenthetical statements contained within the proposed definition 
of Act in section 32.3 were misleading or inaccurate, because they 
lumped death and disability provisions together, where the law 
distinguishes between them. (The comment went on to point out a similar 
problem in the definition of Public employee in that section.) BJA 
agrees and has made corresponding changes.
     Miscellaneous. In keeping with one of the principal 
purposes of the proposed rule, which was to remove ``previously 
unnoticed flaws, gaps, or ambiguities,'' one commentator correctly 
pointed an ambiguity out in paragraph 32.4(a), which provides that 
``[t]he first three provisions of 1 U.S.C. 1 (rules of construction) 
shall apply.'' As stated by the commentator, ``[t]he intention of this 
provision seems to be that those rules of construction apply to the 
regulations, but by its terms I think the provision strictly indicates 
only that those rules apply to the PSOB Act.'' BJA agrees, and a 
conforming change has been made to clarify that the rules apply to the 
regulations.
    Further to the changes proposed in section 32.15, a commentator 
asked if the term ``ruling'' in section 32.15(a)(2)--which also is 
found in section 32.25(a)(2)(ii)--means ``only formal rulings, or does 
it also include ordinary findings?'' The latter meaning is intended and 
a clarifying change has been made to both sections.
    In connection with proposed section 32.5(d)(3), one commentator 
asked if it were ``sufficient merely to apply for the benefits in order 
to avoid the possibility of the adverse inference, or must the claimant 
also pursue the application as well?'' The application must be pursued, 
and a change has been made to the rule accordingly.
    One commentator suggested that the proposed 32.5(f)(3) be 
reformatted into separate subparagraphs (without changing the substance 
of the provision) so as to make it less confusing; and suggested a 
similar change (again, without changing the substance of the provision) 
for the definitions of Nonroutine strenuous physical activity and 
Nonroutine stressful physical activity in section 32.13. As the 
commentator put it: ``Some of the component elements of those 
definitions are `excluded,' while others are listed as conditions. It 
would be far less confusing if all the elements of these definitions 
were formatted similarly [in separate subparagraphs], either all as 
exclusions, or all as conditions.'' BJA agrees and has made conforming 
changes.
    A commentator suggested a few (non-substantive) syntactical changes 
to the proposed definition of Routine in section 32.13, with which BJA 
agrees.
    An inquiry was received in connection with proposed section 
32.45(a): Specifically, asking what would happen if, with respect to 
the same deceased officer, there were claimants in different cities, 
who could not ``agree'' upon a location for the hearing. BJA agrees 
that the provision does not specifically address such a situation (but 
should) and has made a change so as to do so.
    One commentator suggested that the Department should begin to 
implement an unenacted bill; this, of course, is beyond the authority 
of the Executive Branch. Other commentators variously found fault with 
the Department for not including ``inspectors and code officials'' 
appointed to assess damage and building safety, ``emergency management 
personnel,'' ``volunteer haz mat responders,'' and ``emergency

[[Page 76527]]

services personnel'' as ``public safety officers''; under the statute, 
the term ``public safety officer'' is limited to law enforcement 
officers, firefighters, certain chaplains, and public-employee members 
of a rescue squad or ambulance crew, and certain disaster-relief 
workers (which does appear to include at least some of the emergency 
response personnel described in some of the comments, at least under 
some circumstances), and the Executive Branch is not at liberty to 
expand the categories beyond the limits prescribed in the statute; this 
having been said, it should be noted that the definition of Suppression 
of fire in section 32.3 expressly includes ``on-site hazard 
evaluation.''
    Another commentator opined that the educational assistance benefits 
available under 42 U.S.C. 3796d to 3796d-7 ``should be the FIRST source 
of funding for college not the LAST source''; the Executive Branch is 
not at liberty to implement this suggestion, because, notwithstanding 
the commentator's expressed belief that ``it was Congress' intent to 
provide scholarship funds to surviving spouses and children of fallen 
public safety officers without being directed to other sources first,'' 
in fact, 42 U.S.C. 3796d-1(a)(3)(A) expressly commands that the amount 
of the PSOB educational assistance benefit ``shall be reduced by the 
sum of * * * the amount of educational assistance benefits from other 
Federal, State, or local governmental sources to [sic] which the 
eligible dependent would otherwise be entitled to receive.''
    One comment expressed concern that the proposed definition of 
Prison security activity might allow security personnel who were not 
``sworn officers'' to be covered; the current definition of 
Involvement, found at section 32.3, which runs counter to such a 
result, remains in force. Another comment, in connection with proposed 
section 32.6(a), expressed concerns as to the difficulty inherent in 
determining who may have had ``the closest relationship'' with an 
officer who is deceased at the time of the determination; BJA agrees 
that such a determination well may be difficult in particular cases, 
but a similar difficulty currently exists under section 32.16(a), which 
has similar language and has proven to be workable nonetheless. Yet 
another comment sought clarification as to what life insurance policy 
would be ``the most recent'' if the one on file with the agency were 
older than one not on file; the statute, 42 U.S.C. 3796(a)(4)(B), 
decrees that the relevant policy is the ``most recently executed life 
insurance policy on file at the time of death with such officer's 
public safety agency, organization, or unit,'' thus making any policy 
not so on file irrelevant, regardless of when it may have been 
executed.
    One commentator opined that the benefits available for government 
employees surpass those available for similarly-situated individuals in 
the private sector and objected that more resources are being allocated 
to government employees; the commentator should refer his views to the 
Congress, as the regulations do but implement a series of statutory 
enactments that enshrine the policy choice that funds collected from 
taxpayers by the federal government should be used to pay the benefits 
authorized thereby: It is not the regulations, but the statutes, that 
establish the program. Finally, one commentator asked for clarification 
regarding the meaning of the regulatory term ``purported spouse'' (a 
term used in several places in the program regulations): A ``purported 
spouse'' is any person who is alleged (on any basis or pretext) to be a 
spouse within the meaning of the PSOB Act and its implementing 
regulations.

III. Regulatory Certifications

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act, the Office of 
Justice Programs 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 rule addresses federal agency procedures; furthermore, 
this 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 rule has been drafted and reviewed in accordance with 
Executive Order No. 12866, Sec.  1(b). The costs of implementing this 
rule are minimal. The only costs to OJP consist of appropriated funds, 
and the benefits of the rule far exceed the costs. As discussed in more 
detail in the ``Background'' section above, all of the substantive 
regulatory changes in this rule tend to relieve unnecessary burdens and 
restrictions placed on claimants by the current rule. The non-
substantive changes largely incorporate existing law and clarify the 
regulation so that it reflects current agency practice. The rest of the 
changes, in main, are grammatical and syntactical.
    The Office of Justice Programs has determined that this rule is a 
``significant regulatory action'' under Sec.  3(f) of the Executive 
Order, and accordingly this rule has been reviewed by the Office of 
Management and Budget.

Executive Order 13132

    This 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 rule does not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988--Civil Justice Reform

    This rule meets the applicable standards set forth in Sec. Sec.  
3(a) & (b)(2) of Executive Order No. 12988. Pursuant to Sec.  
3(b)(1)(I) of the Executive Order, nothing in this or any previous rule 
(or in any administrative policy, directive, ruling, notice, guideline, 
guidance, or writing) directly relating to the Program that is the 
subject of this rule is intended to create any legal or procedural 
rights enforceable against the United States, except as the same may be 
contained within part 32 of title 28 of the Code of Federal 
Regulations.

Unfunded Mandates Reform Act of 1995

    This 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 rule is not a major rule as defined by Sec.  804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. This 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

[[Page 76528]]

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

    This rule contains no new information collection or recordkeeping 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, 
et seq.).

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 amended as 
follows:

PART 32--PUBLIC SAFETY OFFICERS' DEATH, DISABILITY, AND EDUCATIONAL 
ASSISTANCE BENEFITS CLAIMS

0
1. Revise the authority citation for part 32 to read as follows:

    Authority: 42 U.S.C. ch. 46, subch. XII; 42 U.S.C. 3782(a), 
3787, 3788, 3791(a), 3793(a)(4) &(b), 3795a, 3796c-1, 3796c-2; sec. 
1601, title XI, Public Law 90-351, 82 Stat. 239; secs. 4 through 6, 
Public Law 94-430, 90 Stat. 1348; secs. 1 and 2, Public Law 107-37, 
115 Stat. 219.


0
2. Revise Sec.  32.0 to read as follows:


Sec.  32.0  Scope of part.

    This part implements the Act, which, as a general matter, 
authorizes the payment of three different legal gratuities:
    (a) Death benefits;
    (b) Disability benefits; and
    (c) Educational assistance benefits.

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3. Amend Sec.  32.3 as follows:
    a. Revise the definitions of ``Act'', ``Authorized commuting'', 
``Determination'', ``Divorce'', ``Eligible payee'', ``Fire 
protection'', ``Fire, rescue, or police emergency'', ``Firefighter'', 
``Hazardous-materials emergency response'', ``Heart attack'', 
``Injury'', ``Injury date'', ``Intentional misconduct'', ``Law 
enforcement'', ``Line of duty activity or action'', ``Occupational 
disease'', ``Posthumous child'', ``Public employee'', ``Qualified 
beneficiary'', ``Substant