[Federal Register Volume 70, Number 142 (Tuesday, July 26, 2005)]
[Proposed Rules]
[Pages 43078-43093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14659]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 70, No. 142 / Tuesday, July 26, 2005 / 
Proposed Rules  

[[Page 43078]]


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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: Notice of proposed rulemaking with request for comments.

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SUMMARY: The Office of Justice Programs, Department of Justice, 
proposes this rule to amend regulations which implement the Public 
Safety Officers' Benefits Act, as amended. The Act provides financial 
support to certain public safety officers, or their survivors and 
families, when such officers die, or become permanently and totally 
disabled, as a result of line-of-duty injuries. The proposed rule would 
incorporate recent statutory amendments to the program, specifically, 
to provide coverage for chaplains and the addition of certain life 
insurance beneficiaries, and to provide coverage for certain heart 
attack and stroke cases. The proposed rule also would amend the 
regulations to incorporate longstanding internal agency policy and 
practice, court decisions, and certain technical changes, in order to 
make the regulations more comprehensive and user-friendly.

DATES: Comments must be received by no later than 5 p.m., E.S.T., on 
September 26, 2005.

ADDRESSES: Please address all comments regarding this proposed rule, by 
U.S. mail, to: Hope Janke, Counsel to the Director, Bureau of Justice 
Assistance, Office of Justice Programs, 810 7th Street, NW., 
Washington, DC 20531; by telefacsimile transmission, to: Hope Janke, 
Counsel to the Director, at (202) 305-1367; or by e-mail, to: 
[email protected]. To ensure proper handling, please reference OJP 
Docket No. 1333 on your correspondence. You may view an electronic 
version of this proposed rule at http://www.regulations.gov and you may 
also comment by using the www.regulations.gov form for this regulation. 
When submitting comments electronically, you must include OJP Docket 
No. 1333 in the subject box.

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:

I. Background

    The Public Safety Officers Benefits (PSOB) Program is administered 
by the Bureau of Justice Assistance (BJA), Office of Justice Programs 
(OJP), Department of Justice, pursuant to the statute, as a means of 
providing a one-time financial payment to the statutorily-eligible 
survivors of public safety officers who die as the direct and proximate 
result of a traumatic injury sustained in the line of duty, as well as 
educational assistance for certain of those survivors; and also 
providing a one-time financial payment to public safety officers who 
are permanently and totally disabled as the direct result of a 
catastrophic injury sustained in the line of duty, as well as 
educational assistance for their spouses and certain of their children. 
As the 9th Circuit Court of Appeals observed, however, in Russell v. 
United States, 637 F.2d 1255, 1261 (1981), the statute did not create a 
comprehensive insurance-type compensation program, similar to those 
administered by many States and municipalities. See also Rose v. 
Arkansas State Police, 479 U.S. 1 (1986) (per curiam); Chacon v. United 
States, 32 Fed. Cl. 684, 687 (1995); Holstine v. Dep't of Justice, No. 
80-7477, slip op. at 2 (9th Cir. Aug. 4, 1982).
    The statute, rather, provides for three specific types of benefits, 
each expressly dependent upon implementing regulations that BJA is 
authorized to issue: (1) ``[i]n any case in which [BJA] determines, 
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,'' BJA is to provide a one-time 
financial benefit to the statutorily-eligible survivors; (2) ``[i]n 
accordance with regulations pursuant to this [Act],'' BJA is to provide 
a one-time financial benefit to public safety officers who ``become 
permanently and totally disabled as the direct result of a catastrophic 
injury sustained in the line of duty''; and (3) pursuant to 
``reasonable and necessary regulations'' that it may ``promulgate * * * 
to implement [the Act],'' BJA is to provide certain higher-education 
assistance for statutorily-eligible children and spouses of public 
safety officers who are killed or permanently and totally disabled in 
the line of duty. BJA--on which, by statute, the sole 
``[r]esponsibility for making final determinations * * * rest[s]'' --is 
prepared to pay, in a timely fashion, every eligible claim relating to 
an officer who has died or been permanently and totally disabled in the 
line of duty, according to the requirements of the law.
    Pursuant to the foregoing authorities, and to BJA's additional 
express statutory authority generally ``to establish such rules, 
regulations, and procedures as may be necessary to carry out the 
purposes of [the Act]'' (which the statute also expressly provides will 
be ``determinative of conflict of laws issues arising under [the 
Act]''), this rule now is being proposed--(1) to implement various 
statutory amendments to the program; (2) to incorporate longstanding 
internal policies, practices, and guidance, as well as many judicial 
holdings, into the regulation; (3) to make certain refining and 
technical changes to the regulation; and (4) to restructure the 
regulation to make it easier for the public to use.
    Recent statutory amendments to the PSOB program include section 305 
of the Disaster Mitigation Act of 2000, Pub. L. 106-390 (``Disaster 
Mitigation Act'') (effective for injuries sustained on or after Oct. 
30, 2000); sections 611 and 613 of the USA PATRIOT Act, Pub. L. 107-56 
(the former section effective Oct. 26, 2001; the latter section 
effective retroactively for injuries occurring on or after Jan. 1, 
2001); the Mychal Judge Police and Fire Chaplains Public Safety 
Officers' Benefit Act of 2002, Pub. L. 107-196 (``Mychal Judge Act'') 
(effective retroactively for injuries occurring on or after Sept. 11, 
2001); and the Hometown Heroes Survivors Benefits Act of 2003, Pub. L. 
108-182 (``Hometown Heroes Act'') (effective for injuries sustained on

[[Page 43079]]

or after Dec. 15, 2003). These amendments represent an expansion of the 
scope of the PSOB Act and clarify some of its provisions.
    Section 305 of the Disaster Mitigation Act amended the PSOB Act to 
include certain public employees performing disaster relief activities 
as eligible public safety officers. Under the amendment, eligible 
disaster relief workers include those performing official duties as 
either employees of the Federal Emergency Management Agency (FEMA) or 
employees of state, local or tribal emergency management agencies or 
civil defense agencies performing official duties in cooperation with 
FEMA; and such official duties must be conducted in relation to a major 
disaster or emergency and must be hazardous in nature. Pursuant to 42 
U.S.C. 3796(a) and (b), and 3796c(a), the proposed rule would provide a 
convenient, short-hand label for these particular employees, defining 
them in proposed 28 CFR 32.3 as ``disaster relief worker[s],'' in 
keeping with the requirements described in the PSOB Act at 42 U.S.C. 
3796b(8)(B) and (C); and would make corresponding amendments to the 
``line of duty'' provisions found in the current regulation.
    Section 611 of the USA PATRIOT Act provides for expedited payment 
of death and disability benefits under specific circumstances relating 
to a ``terrorist attack,'' authorizing BJA to accept certain 
certifications from employing public agencies as prima facie evidence 
in determining claims for those benefits that arise from those 
circumstances. Section 611 thus creates a statutory distinction between 
cases described in that section (where resort to certain certifications 
as prima facie evidence is authorized) and all others (where resort to 
such certifications as prima facie evidence is not authorized). 
Pursuant to 42 U.S.C. 3796(a) and (b), and 3796c(a), in addition to 
proposing a few other implementing provisions (generally of a 
clarifying nature), the proposed rule defines ``terrorist attack,'' 
largely by reference to analogous definitions enacted in the USA 
PATRIOT Act itself, but also taking into account the circumstances that 
prompted the enactment of section 611 and the rationale that supports 
the statutory distinction that section makes. The proposed definition 
of ``terrorist attack'' specifies the Department of Justice officers 
who must make determinations thereunder, and the standards they are to 
apply in making them; these officers, of course, may delegate their 
authority to make these determinations to any of their subordinates. It 
should be noted, however, that any determinations that may be made 
pursuant to the proposed definition of ``terrorist attack'' would be 
only for the purpose of establishing what PSOB Act claims may fall 
within the scope of section 611 of the USA PATRIOT Act, and should not 
be understood to apply in any other context, or to create any inference 
that prosecution is warranted under the criminal code; e.g., at 18 
U.S.C. 2332b (if only because the standard proposed in the rule is less 
stringent than the standard required for a designation of international 
terrorism under 18 U.S.C. 2332b).
    Section 613(a) of the USA PATRIOT Act increased the base amount for 
PSOB death and disability benefit awards to $250,000, which is 
adjustable for inflation pursuant to 42 U.S.C. 3796(h). This amendment 
does not affect amounts payable for deaths or injuries occurring before 
January 1, 2001. Unlike the current regulation, the proposed rule does 
not specify specific dollar amounts for death and disability benefit 
awards (which quickly would fall out of date, as a result of the 
statutory inflation adjustment), thus avoiding the potential for 
confusion of the public.
    The Mychal Judge Act provides that certain chaplains may be 
eligible public safety officers under the PSOB Act. Just as with law 
enforcement officers, firefighters, and ambulance crew and rescue squad 
members, covered chaplains must be serving a public agency in an 
official capacity, with or without compensation, at the time of death 
or catastrophic injury. Pursuant to 42 U.S.C. 3796(a) and (b), and 
3796c(a), the proposed rule implements this amendment to the PSOB Act 
by clarifying the definition of the term ``chaplain'' and by 
correspondingly expanding the provision in the current regulation 
relating to ``line of duty.''
    The Mychal Judge Act also provides that in cases where an officer 
has died without a surviving spouse or eligible children, the person 
designated as beneficiary on the officer's ``most recently executed 
life insurance policy'' shall receive the PSOB benefit. Pursuant to 42 
U.S.C. 3796(a) and 3796c(a), the proposed rule provides the definitions 
and procedures necessary to process claims for this category of 
beneficiary (e.g., ``execution of a life insurance policy,'' ``most 
recently executed life insurance policy of a public safety officer,'' 
``beneficiary of a life insurance policy of a public safety officer'').
    The Hometown Heroes Act amends the PSOB Act to make certain 
provisions for public safety officers who die as a result of heart 
attack or stroke under certain circumstances expressly set forth in the 
amendment. Specifically, the amendment creates a statutory presumption 
of death by a line of duty injury, which may be rebutted by ``competent 
medical evidence to the contrary,'' in cases where a public safety 
officer dies of heart attack or stroke while engaging in, (or within 24 
hours of engaging in) ``nonroutine stressful or strenuous physical 
[line of duty] activity.'' Where the requirements of the Hometown 
Heroes Act 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 otherwise 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).
    A consequence of the new statutory language is that several new 
terms, which were not previously included in the PSOB Act, need to be 
defined to implement the amendment. With the clarity provided by the 
proposed rule, the user will have a better appreciation for how the 
amendment will be implemented by BJA, the hearing officer, and the 
judiciary. In drafting the regulatory definitions for these terms 
pursuant to 42 U.S.C. 3796(a) and 3796c(a), BJA consulted extensively 
with the Armed Forces Institute of Pathology and other medical experts 
knowledgeable in the field of cardiovascular disease and work-life-
related diseases and afflictions, with particular focus on the 
circumstances surrounding heart attacks and strokes among public safety 
officers. Further, in order to elicit input and appreciate any 
potential concerns of the practitioners, BJA held several meetings with 
groups such as the Fraternal Order of Police Grand Lodge, NC State 
Fireman's Association, International Association of the Chiefs of 
Police, the National Fire Fighters Foundation, National Sheriffs 
Association, Congressional Fire Services Institute, and Concerns of 
Police Survivors. It is only after receiving much guidance and input 
from these experts, and considering and deliberating over their advice 
that the regulation is now proposed for public comment. (In noting that 
various individuals and groups participated in meetings and discussions 
with OJP staff, OJP does not wish to imply that these individuals or 
groups have or have not

[[Page 43080]]

endorsed the provisions contained within the proposed rule.)
    This program has evolved over three decades, and internal agency 
policy, practice, and guidance--based on internal legal opinions, on 
judicial rulings, and on the considerable and broad-ranging experience 
and expertise BJA has derived from innumerable claims--have come 
increasingly to inform the agency's decision-making, gradually taking 
on significant authority. Little of this is reflected on the face of 
the current regulation, however. And unfortunately, despite attempts 
over the years variously to disseminate information on BJA's evolving 
policy, practice, and guidance, to potential beneficiaries and their 
representatives, the efforts have been less successful than OJP would 
like. For example, since November 1981, the publication, Legal 
Interpretations of the Public Safety Officers' Benefits Act, has been a 
guiding authority for BJA, program hearing officers, OJP, and the 
judiciary. This publication has been relied upon so much that the legal 
opinions found in this publication have been quoted as authority in 
numerous cases decided by the United States Court of Federal Claims 
(and its predecessors) and United States Court of Appeals for the 
Federal Circuit. E.g., Yanco v. United States, 258 F.3d 1356 (Fed. Cir. 
2001); 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. Unfortunately, many are not aware of 
this publication's availability, or of its value in indicating the 
relevant BJA internal policies and practice. A principal reason for the 
proposed rule, therefore, is OJP's desire that the most significant 
internal guiding principles, opinions, policy, practice, and other 
information about the program be readily available, transparent, and 
easier for the public, including public safety officers and their 
survivors, and practitioners, to understand and apply.
    The regulation currently is configured in such a way that simply 
introducing the new material described above into the existing language 
would be inadvisable. For this reason, OJP has taken the opportunity to 
propose a simplification and restructuring of the entire regulation, 
breaking it down into six distinct subparts. Pursuant to 42 U.S.C. 
3796(a) and (b), 3796c(a), and 3796d-3(a), Subpart A proposes general 
terms and procedures common to all three PSOB benefit components. 
Pursuant to 42 U.S.C. 3796(a) and 3796c(a), Subpart B proposes terms 
and procedures applicable only to the death benefit component; pursuant 
to 42 U.S.C. 3796(b) and 3796c(a), Subpart C proposes those applicable 
only to the disability benefit component; and pursuant to 42 U.S.C. 
3796d-3(a) and 3796c(a), Subpart D proposes those applicable only to 
the educational assistance benefit component. Accordingly, pursuant to 
the proposed rule, those seeking to understand the basic law applicable 
to any one of these three PSOB benefits must refer to the PSOB Act 
itself, of course, and thereafter only to Subpart A (General 
Provisions) and to the applicable Subpart for the benefit at issue (be 
it Subpart B, C, or D). At present, for example, a disability claimant 
would by necessity have to skip around the regulation to appreciate 
what may be necessary for his particular type of claim; under the 
proposed rule, he would have to read only the Act itself, and Subparts 
A and C.
    Pursuant to 42 U.S.C. 3796(a) and (b), 3796c(a), and 3796d-3(a), 
the last two subparts, Subparts E and F, propose procedures for hearing 
officer determinations and intra-agency review.
    The various ``Definitions'' sections proposed in the subparts 
comprise three different types of definitions: (1) A concise 
comprehensive explanation of a precise term or phrase (e.g., ``Adopted 
child of a public safety officer means * * *.''); (2) a non-
comprehensive, non-exhaustive definition (e.g., ``Independent 
contractor includes * * *.''); or (3) a contextual definition, setting 
forth the meaning of the term as used only in a particular or specific 
context (e.g., ``Cause--A death, injury, or disability is caused by 
intentional misconduct if * * *.'').
    The general consonance of the express provisions of the proposed 
rule with the substance of current practice, see, e.g., Porter v. 
United States, 63 Fed. Cl. 143 (2005); One Feather v. United States, 61 
Fed. Cl. 619 (2004), should not be understood to suggest that some 
differences are not being proposed. The current regulation, for 
example, at 28 CFR 32.2(c), .4, and .5, contains provisions that differ 
significantly from those proposed here pursuant to 42 U.S.C. 3796(a) 
and (b), and 3796c(a). As a result, the holdings in Bice v. United 
States, 61 Fed. Cl. 420 (2004); Davis v. United States, 50 Fed. Cl. 192 
(2001); and Davis v. United States, 46 Fed. Cl. 421 (2000), and that 
portion of the holding in Demutiis v. United States, 48 Fed. Cl. 81 
(2000) that was affirmed in 291 F.3d 1373 (Fed. Cir. 2002)--all of 
which are grounded in one or more of those three sections of the 
current regulation--would be affected much as the holding in Melville 
v. United States, 231 Ct. Cl. 776 (1982), and a portion of the holding 
in Harold v. United States, 634 F.2d 547, 549-552 (Ct. Cl. 1980), were 
nullified or rendered moot by subsequent amendments to the PSOB Act 
itself, and the jurisdictional portion of the holding in Russell, 637 
F.2d at 1256-1260, was nullified by subsequent amendments to the 
Omnibus Crime Control and Safe Streets Act of 1968, see, e.g., 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. Dept of Justice, 748 F.2d 1389 
(10th Cir. 1984); see also, e.g., 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); 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), of which the PSOB Act is a part.
    Further to the foregoing general discussion, the following are a 
number of specific items that, pursuant to the proposed rule, would be 
reflected in the regulation:

1. Line of Duty

    Since the original enactment of the PSOB Act, BJA and courts 
uniformly have recognized the nature of the acts performed by a public 
safety officer is key to determining whether he suffered a line-of-duty 
injury within the meaning of the Act. See, e.g., Tafoya, 8 Cl. Ct. at 
262; Harold, 634 F.2d at 551-552. In keeping with these decisions and 
pursuant to 42 U.S.C. 3796(a) and (b), and 3796c(a), the definitions of 
``line of duty activity or action'' and ``line of duty injury'' in the 
proposed rule, which largely are drawn from provisions in the existing 
regulations and practice, make clear that in order for an injury to be 
considered a ``line of duty injury,'' the injury must occur when the 
public safety officer is engaged in activity or an action that he is 
obligated or legally authorized to perform as a public safety officer, 
see, e.g., Wydra v. United States, No. 764-83C, slip op. (Cl. Ct. Jan. 
31, 1986); North, 555 F.Supp. at 387; Howard v. United States, 229 Ct. 
Cl. 507, 510 (1981); Budd v. United States, 225 Ct. Cl. 725 (1980), 
with the cognizance of the officer's public agency, which typically is 
in the best position to provide line-of-duty evidence in connection 
with a claim under the Act.
    Additionally, and also pursuant to 42 U.S.C. 3796(a) and (b), and 
3796c(a), the proposed rule defines ``authorized

[[Page 43081]]

commuting'' by setting out the specific circumstances where a public 
safety officer would be considered to be engaged in a line of duty 
action or activity while commuting to or from work, or to a particular 
emergency. Essentially, this definition articulates--for the first time 
in a regulation--three particular exceptions to the ``coming and going 
rule'' that have been recognized by the PSOB Program since soon after 
the original enactment of the Act. See, e.g., Russell, 637 F.2d at 
1265-1266.

2. Serving a Public Agency in an Official Capacity

    The PSOB Act defines the term ``public safety officer,'' for most 
purposes, as ``an individual serving a public agency in an official 
capacity'' as a law enforcement officer, firefighter, chaplain, or 
rescue squad or ambulance crew member. 42 U.S.C. 3796b(8). The Act also 
defines ``public agency'' as a government (Federal, State, territorial, 
or of a district or possession of the United States) or ``any unit of 
local government, department, agency, or instrumentality of any of the 
foregoing.'' 42 U.S.C. 3796b(7). Some confusion has arisen over the 
years as to whether employees or volunteers who serve independent 
contractors or non-public entities that are working for public agencies 
are ``serving a public agency in an official capacity'' or are 
``employees'' within the meaning of the PSOB Act, or whether those 
independent contractors or non-public entities are 
``instrumentalities'' of public agencies within the meaning of the Act. 
Although BJA's application of all the foregoing terms (largely drawn 
from pre-existing law, see, e.g., Taylor v. Standard Gas and Electric 
Co., 96 F.2d 693, 704 (1938)) has been consistent over the years, see, 
e.g., LaBare, slip op. at 2, 6; Porter, 63 Fed. Cl. at 143 n.5; Chacon, 
48 F.3d at 511-513, aff'g 32 Fed. Cl. at 687-689; Holstine, slip op. at 
1-2, the current regulation does not on its face reflect that 
application well. In an effort to assist claimants, pursuant to 42 
U.S.C. 3796(a) and (b), and 3796c(a), the proposed rule sets out key 
definitions to clarify these terms within the four corners of the 
regulation. For example, the definition of the term ``instrumentality'' 
would set forth requirements that the entity in question be legally 
established, act as a functional part of a public agency, function with 
a solely public character, and serve the public indiscriminately, and 
be cloaked with the authority of a public agency for purposes of 
sovereign immunity or tort liability. For another example, the 
definition of ``official capacity'' would clarify that an individual 
serves a public agency in an official capacity if his service is 
``officially authorized, -recognized, or -designated as functionally 
within or part of'' a public agency, and ``his acts and omissions, 
while so serving, are legally those of'' his public agency, which 
recognizes them as such. See, e.g., Chacon, 48 F.3d at 512, aff'g 32 
Fed. Cl. at 687-688.

3. Law Enforcement Officer

    Over several decades of administering the PSOB Act, BJA has 
received a number of claims with respect to individuals who did not 
have authority actually to engage in ``crime and juvenile delinquency 
control or reduction, or enforcement of the laws'' in the way that 
``police, corrections, probation, parole, or judicial officers''--who 
are specified in the Act--do. 42 U.S.C. 3796b(7). Claimants there 
argued unsuccessfully that tenuous or distant connections to the 
criminal law made the decedent (or disabled person) a ``law enforcement 
officer'' within the meaning of the Act. The PSOB Act is not intended 
to cover all personnel who may happen to be employed by a law 
enforcement agency, but only those who actually are ``law enforcement 
officers.'' For this reason, pursuant to 42 U.S.C. 3796(a) and (b), and 
3796c(a), the proposed rule clarifies the definition of ``law 
enforcement officer'' in the PSOB Act by defining--for the first time 
as a matter of regulation rather than policy--the terms ``crime,'' 
``criminal law,'' ``enforcement of the criminal law,'' ``enforcement of 
the laws,'' and ``involvement.''

4. Firefighter/Rescue Squad/Ambulance Crew Member

    The definition of firefighter in the PSOB Act combines two distinct 
concepts by providing that the term ``firefighter'' includes a ``public 
employee member of a rescue squad and ambulance crew.'' In order to 
avoid the confusion that has arisen in certain cases where it was not 
clear whether an individual's actual authority was to act as a 
firefighter or as a public employee member of a rescue squad or 
ambulance crew, pursuant to 42 U.S.C. 3796(a) and (b), and 3796c(a), 
the proposed rule bifurcates the statutory definition of 
``firefighter'' as it appears in the PSOB Act into two separate 
regulatory definitions--``firefighter'' and ``rescue squad or ambulance 
crew member''--each of which provides more specific descriptions of the 
nature of each position. With this change, a rescue squad or ambulance 
crew member would be covered as a ``rescue squad or ambulance crew 
member,'' as a matter of regulation, rather than as a ``firefighter,'' 
as a matter of statute. In either case, however, the substance of the 
result mandated by the Act, see, e.g., Chacon, 48 F.3d at 512-513, 
aff'g 32 Fed. Cl. at 688-689, of course, would remain the same.

5. Injury

    The proposed rule defines ``injury'' using nearly identical 
language from the existing PSOB regulation for ``traumatic injury'': A 
``traumatic physical wound (or a traumatized physical condition of the 
body) caused by some external force * * * but excluding stress or 
strain.'' See Greeley, 50 F.3d at 1011-1012; Canfield v. United States, 
No. 339-79, slip op. at 1-2 (Fed. Cir. Dec. 29, 1982), rev'g No. 339-
79C, slip op. (Ct. Cl. July 27, 1982); Durco, 14 Cl. Ct. at 428; North, 
555 F.Supp. at 387; Russell, 231 Ct. Cl. at 1025; Smykowski, 647 F.2d 
at 1105; Morrow, 647 F.2d at 1101. Pursuant to 42 U.S.C. 3796(a) and 
(b), and 3796c(a), the proposed rule, which is consonant with current 
practice with respect to injury generally, see, e.g., Brister v. United 
States, No. 01-180C, slip op. at 3-6 (Fed. Cl. Mar. 27, 2002); 
Cartwright v. United States, 16 Cl. Ct. 238 (1989), clarifies the 
definition of ``injury'' with respect to ``mental strain,'' to conform 
to the express reading of the Federal Circuit Court of Appeals in 
Yanco, 258 F.3d at 1365, aff'g 45 Fed. Cl. 782, 788-792 (2002); see 
Porter, 63 Fed. Cl. at 149 & n.6; Davison v. United States, No. 99-
361C, slip op. at 8-11 (Fed. Cl. Apr. 19, 2002).

6. Disability

    Current rules pertaining to the disability benefit are simplified 
in proposed Subpart C, which (pursuant to 42 U.S.C. 3796(b) and 
3796c(a)) independently defines ``permanently disabled'' and ``totally 
disabled,'' in recognition that a subject officer may meet the criteria 
of one or the other requirement, but not both. Also pursuant to 42 
U.S.C. 3796(b) and 3796c(a), the proposed rule, which otherwise 
conforms to existing practice, see, e.g., Porter, 63 Fed. Cl. at 147-
150, incorporates an entirely new procedural alternative into the 
disability benefit claim process, allowing for ``reconsideration'' of 
certain disability denial determinations, at the option of the 
claimant. The procedure for reconsideration of disability claims 
responds to the reality that a line of duty injury may not have caused 
the public safety officer to be totally and permanently disabled at the 
time of the initial claim application, but may do so with the passage 
of time.

[[Page 43082]]

7. Limitations on Benefits

    Pursuant to 42 U.S.C. 3796(a) and (b), and 3796c(a), the proposed 
rule defines a number of terms to implement the provision in the PSOB 
Act that sets forth limitations on benefits when public safety officer 
misconduct has occurred, (e.g., ``intention,'' ``disturbance,'' ``drugs 
or other substances,'' ``gross negligence,'' ``intentional 
misconduct,'' ``intentional action or activity,'' ``voluntary 
intoxication at the time of death or catastrophic injury,'' and 
``mental faculties''). See 42 U.S.C. 3796a. These definitions 
essentially are drawn from the existing regulations or current 
practice. See, e.g., Wydra, slip op. at 3-5; Tafoya, 8 Cl. Ct. at 260-
266; Harold, 229 Ct. Cl. at 508-510; Budd, 225 Ct. Cl. at 727-730. Also 
pursuant to 42 U.S.C. 3796(a) and (b), and 3796c(a), the rule proposes 
evidentiary standards to determine if a public safety officer was 
intoxicated by drugs or other substances, by incorporating terms used 
in the Controlled Substances Act (21 U.S.C. 802(6) and 812(a)). In this 
way, the rule proposes to provide a workable mechanism by which to 
determine an occurrence of voluntary intoxication by drugs, which 
mechanism would parallel the one set forth in the PSOB Act itself for 
intoxication by alcohol. See 42 U.S.C. 3796b(5).

8. Timing for Filing Claims; Redeterminations; Appeals; Review by 
Director

    Pursuant to 42 U.S.C. 3796(a) and (b), 3796c(a), and 3796d-3(a), 
the rule proposes clear procedural schedules for filing and notice 
requirements, and clear provisions for exhaustion of remedies, 
applicable to each stage of a PSOB claim. These schedules and 
provisions, which generally are derived from current practice, see, 
e.g., LaBare, slip op. at 5; Yanco, 45 Fed. Cl. at 793; Tafoya, 8 Cl. 
Ct. at 259-260 nn.2 & 4, advance the efficient and effective 
administrative processing of claims, and avoid undue delay on the part 
of the PSOB Office, the hearing officer, or BJA, or the claimant. The 
proposed schedules would provide specific periods of time by the end of 
which filings of requests, motions, appeals, etc., would have to be 
actually received by BJA. In most instances in which a time period 
related to a filing is proposed, the timeframe is thirty-three (33) 
days, which is derived from a standard thirty-day period, plus three 
additional days--thereby incorporating the additional time customarily 
given to parties in civil litigation, under the ``Mailbox Rule,'' when 
mailing their filings. See, e.g., Fed. R. Civ. P. 6(e). A definitive, 
concrete, and easily-established timeframe would allow for the timely 
disposition of claims.
    Generally, the rule proposes the following scheme: If a claim is 
denied by the PSOB Office, a claimant may request a determination by a 
hearing officer, whereupon, the hearing officer conducts a de novo 
review of the claim and issues a determination. If the hearing officer 
denies the claim, the claimant may opt to appeal to the Director of 
BJA; where a hearing officer's determination results in an approval of 
a claim, the Director shall review it.

II. Regulatory Certifications

Administrative Procedure Act

    The Office of Justice Program's publishing of the proposed rule 
with a comment period of 30 (thirty) days is to facilitate the timely 
implementation of the amendments in order to bring resolution to an 
estimated sixty-five Hometown Heroes Act cases that require the 
guidance in this regulation in order to be determined. To extend the 
comment period beyond this timeframe would unnecessarily delay the 
implementation of the provisions of this proposed rule and would be 
contrary to the public interest because it is in the public interest to 
pay in an expeditious manner benefits to public safety officers, or 
their family members.

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 proposed rule addresses Federal agency 
procedures; furthermore, this proposed rule makes minor amendments to 
clarify existing regulations and agency practice concerning death and 
disability 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 proposed 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 proposed rule 
are minimal. Claimants must complete and submit no more than three 
forms; a ``Claim for Death Benefits,'' OMB Form No. 1121-0024; a 
``Report of Public Safety Officer's Death,'' OMB Form No. 1121-0025; 
and a ``Consent to Release Information'' pursuant to 5 U.S.C. 552a(b); 
and supply adequate documentation concerning the public safety officer 
death. The only costs to OJP consist of appropriated funds. The 
benefits of the proposed rule far exceed the costs. The minor 
amendments clarify the preexisting regulations and provide coverage for 
chaplains, life insurance beneficiaries, and the survivors of certain 
heart attack and stroke victims.
    The Office of Justice Programs has determined that this proposed 
rule is a ``significant regulatory action'' under Executive Order No. 
12866 (Regulatory Planning and Review), sec. 3(f), and accordingly this 
proposed rule has been reviewed by the Office of Management and Budget.

Executive Order 13132

    This proposed 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 proposed rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism assessment.

Executive Order 12988--Civil Justice Reform

    This proposed rule meets the applicable standards set forth in 
secs. 3(a) & (b)(2) of Executive Order No. 12988.

Unfunded Mandates Reform Act of 1995

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

[[Page 43083]]

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 
interim 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 must complete and return 
two OMB-approved forms: a ``Claim for Death Benefits,'' OMB Form No. 
1121 0024; and a ``Report of Public Safety Officer's Death,'' OMB Form 
No. 1121-0025.

List of Subjects in 28 CFR Part 32

    Administrative practice and procedure, Claims, Disability benefits, 
Education, Emergency medical services, Firefighters, Law enforcement 
officers, Reporting and recordkeeping requirements, Rescue squad.

    Accordingly, for the reasons set forth in the preamble, part 32 of 
chapter I of Title 28 of the Code of Federal Regulations is proposed to 
be 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.
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 disability finding.
32.28 Reconsideration of 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 Determination.
32.45 Hearings.
32.46 Appeal.
Subpart F--Appeals & Reviews
32.51 Scope of subpart.
32.52 Time for filing appeal.
32.53 Review.
32.54 Determination.
32.55 Appeal.

    Authority: Public Safety Officers' Benefits Act of 1976 (42 
U.S.C. ch. 46, subch. 12).


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.

    (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, or employee, 
only on the day that it actually is received by the same. When a filing 
is prescribed to be filed with more than one of the foregoing, the 
filing shall be deemed filed as of the day the last one actually 
receives the same.
    (c) Notice is served by the PSOB Office upon an individual on the 
day that it is--
    (1) Mailed, by regular 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.


Sec.  32.3  Definitions

    Act means the Public Safety Officers' Benefits Act of 1976 (42 
U.S.C. 3796, et seq.; part L of title I of the Omnibus Crime Control 
and Safe Streets Act of 1968), 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); Oct. 12, 
1984 (deaths of disaster relief workers and Federal law enforcement 
officers and firefighters); Oct. 18, 1986 (rescue squad and ambulance 
crew members); Nov. 29, 1990 (disabilities); Nov. 13, 1998 (educational 
assistance); Sept. 11, 2001 (chaplains and insurance beneficiaries); 
Dec. 15, 2003 (certain heart attacks and strokes)), including Public 
Law 107-37 and sections 611 and 612 of the USA PATRIOT Act.
    Adopted child of a public safety officer means any individual who, 
as of the event date, was--
    (1) Known by the public safety officer not to be his biological 
child; and
    (2) After the officer obtained such knowledge,
    (i) Legally adopted by him; or
    (ii) In a parent-child relationship with him.
    Authorized commuting means travel by a public safety officer--
    (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

[[Page 43084]]

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 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 a public safety officer's death in which the death 
was simultaneous (or practically simultaneous) with the injury; or
    (B) In which the claimant is the officer's--
    (1) Biological child, born after the event date; or
    (2) Legally-adopted child, legally adopted by him after the event 
date; or
    (ii) In any claim not described in paragraph (1)(i) of this 
definition, meets (as of the event 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''); and
    (2) With respect to whom the public safety officer's parental 
rights have not been terminated, as of the event date.
    Convincing evidence means clear and convincing evidence.
    Crime means criminal misdemeanor or felony.
    Criminal law 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(7), only if the entity is--
    (1) A court;
    (2) An agency described in the Act, at 42 U.S.C. 3796b(8)(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.
    Dependent has the same meaning provided in the Internal Revenue 
Code, at 26 U.S.C. 152.
    Determination means the approval or denial of a claim, or the 
determination described in the Act, at 42 U.S.C. 3796(c).
    Director means the Director of BJA.
    Disaster relief worker means any individual who meets the 
definition provided in 42 U.S.C. 3796b(8)(B) or (C).
    Disturbance includes any significant and negative alteration, any 
significant deviation from the objectively normal range, or any 
significant deterioration.
    Divorce means a legally-valid divorce from the bond of wedlock, 
except that, notwithstanding any other provision of law, a spouse (or 
purported spouse) of an 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--
    (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 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.
    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.
    Enforcement of the criminal law includes control or reduction of 
crime or of juvenile delinquency.
    Enforcement of the laws means enforcement of the criminal law.
    Event date means the time of a public safety officer's--
    (1) Fatal injury, 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) Totally and permanently disabling injury, with respect to a 
claim under--
    (i) Subpart C of this part; or
    (ii) Subpart D of this part, by virtue of his disability.
    Filing means any claim, request, motion, election, petition, or 
appeal, and any item or matter (e.g., evidence, certifications, legal 
arguments, or lists) that is, or may be, filed with the PSOB Office.
    Fire, rescue, or police emergency includes disaster-relief 
emergency.
    Firefighter means an individual, other than a rescue squad or 
ambulance crew member, who--
    (1) Is trained in--
    (i) Extinguishing or containing fire; or
    (ii) Emergency response to the threatened or actual release of 
hazardous materials, where life, property, or the environment is at 
significant risk; and
    (2) Has the legal authority and responsibility to engage in 
activity described in paragraph (1) of this definition, 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
    (ii) An individual otherwise included within the definition 
provided in the Act, at 42 U.S.C. 3796b(4).
    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.
    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.
    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(7), unless, as of the event 
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

[[Page 43085]]

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 action or activity 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--A public safety officer's action or 
activity is intentional misconduct if--
    (1) As of the date it is performed,
    (i) It--
    (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) It--
    (i) Is intentional; and
    (ii) Is--
    (A) Performed without reasonable excuse; or
    (B) Objectively unjustified.
    Involvement--An individual is involved in the enforcement of the 
criminal law 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 law, 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.
    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) Rescue squad or ambulance crew members; and
    (5) Disaster relief workers.
    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, firefighter, or rescue squad or 
ambulance crew member--
    (i) Whose primary function (as applicable) is enforcement of the 
criminal law, suppression of fire, or rescue or ambulance activity, 
only if 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 to which he is assigned, or 
for which he is compensated), by 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); or
    (ii) Whose primary function is not enforcement of the criminal law, 
suppression of fire, or rescue or ambulance activity, only if--
    (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, by 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
    (B) It is performed in the course of enforcing the criminal law, 
preventing or suppressing fire, performing rescue or ambulance 
activity, 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 it is activity or an action 
encompassed within the duties described in the Act, at 42 U.S.C. 
3796b(8)(B) or (C), and the agency he serves (or the relevant 
government) 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--
    (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, by 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 it is sustained in the course of--
    (1) Performance of line of duty activity or a line of duty action; 
or
    (2) Authorized commuting.
    Mental faculties means brain function.
    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) His service is officially authorized, -recognized, or -
designated as functionally within or part of such agency; 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).

[[Page 43086]]

    Officially recognized or designated means officially recognized or 
officially designated.
    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 is the 
parent (other than biological or legally-adoptive), as shown by--
    (1) A written acknowledgment of parenthood, signed by the officer;
    (2) Specific identification of the officer's parenthood, in a final 
judicial decree ordering him to contribute to the individual's support, 
or to take some other burdensome action, for that reason;
    (3) A public or religious record showing that the officer was the 
informant and naming him as the individual's parent;
    (4) Affidavits or sworn statements from knowledgeable affiants 
without direct or indirect financial interest in any claim under the 
Act with respect to the officer, credibly attesting that the officer 
accepted the individual as his own child or otherwise held the 
individual out to be his own child;
    (5) A record of a public agency, or of a private school or welfare 
agency, naming the officer, with his knowledge, as the individual's 
parent;
    (6) The officer's claiming of the individual as his dependent child 
on his income tax return (if executed by the officer, or with his 
knowledge and consent); or
    (7) Credible evidence otherwise clearly indicating the officer's 
acceptance of the individual as his own child or intention to hold the 
individual out to be his own child.
    Performance of duties in a grossly negligent manner at the time of 
death or catastrophic injury means gross negligence, as of the event 
date, in the performance of line of duty activity or a line of duty 
action.
    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(7), (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 42 U.S.C. 3796b(7) 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 an entity means a member of an entity who 
is a public employee under the auspices of whose public agency employer 
the entity operates.
    Public employee of an entity means a public employee whose public 
agency employer is the entity.
    Qualified beneficiary--An individual is a qualified beneficiary 
under the Act, at 42 U.S.C. 3796c-1, only if he--
    (1) Qualifies as a payee 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) Is not described in the Act, at 42 U.S.C. 3796a(4).
    Representative services include expenses incurred in connection 
with such services.
    Rescue squad or ambulance crew member means an ambulance worker, 
paramedic, emergency medical technician, or other similar rescue 
worker, who meets the definition provided in the Act, at 42 U.S.C. 
3796b(4) (with the exception of that portion thereof relating to 
members of fire departments).
    Spouse means an individual's lawful husband or wife, and includes a 
spouse living apart from the individual, other than pursuant to 
divorce, except that, notwithstanding any other provision of law, 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.
    Stepchild of a public safety officer means a legally-adoptive or 
biological child of a public safety officer's current, deceased, or 
former spouse, which child--
    (1) Was born before the marriage of the officer and the spouse; and
    (2) As of the event date, was known by the officer not to be his 
biological child and, after the officer obtained such knowledge,
    (i) Received over half of his support from the officer;
    (ii) Had as his principal place of abode the home of the officer 
and was a member of the officer's household; or
    (iii) Was in a parent-child relationship with the officer.
    Stress or strain includes physical strain, mental strain, post-
traumatic stress disorder, and depression.
    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--
    (1) It contributed to the death, injury, or disability to a 
significant degree; or
    (2) It is a substantial factor in bringing the death, injury, or 
disability about.
    Substantial factor--A factor substantially brings about a death, 
injury, or disability, if--
    (1) It alone was sufficient to have caused the death, injury, or 
disability; or
    (2) No other factor (or series of factors) contributed to the 
death, injury, or disability to so great a degree as it did.
    Suppression of fire means--
    (1) Extinguishing or containing fire;
    (2) Emergency response to the threatened or actual release of 
hazardous materials, where life, property, or the environment is at 
significant risk; or
    (3) Performing rescue or emergency response activity of the kind 
performed by firefighters who have the legal authority and -
responsibility to engage in the activity described in paragraph (1) of 
this definition.
    Terrorist attack--An event or act shall be considered a terrorist 
attack for purposes of the Act, at 42 U.S.C. 3796c-1(a), only if--
    (1) The Attorney General determines that there is a reasonable 
indication that it was an act of domestic or international terrorism 
within the meaning of the criminal terrorism laws, at 18 U.S.C. 2331; 
and
    (2) The Director determines that it was of such extraordinary or 
cataclysmic character as to make particularized factual findings 
impossible, impractical, or unduly burdensome.
    Voluntary intoxication at the time of death or catastrophic injury 
means the following:
    (1) With respect to alcohol,

[[Page 43087]]

    (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); and
    (ii) In any claim not described in paragraph (1)(i) of this 
definition, 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 event 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 event 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 indicates 
that--
    (A) Such introduction was not a culpable act of the officer's under 
the criminal law; and
    (B) The officer was not acting in an intoxicated manner immediately 
prior to the event date; 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--
    (A) At levels above or in excess of such range or dosage, unless 
convincing evidence indicates that--
    (1) Such introduction was not a culpable act of the officer's under 
the criminal law; and
    (2) The officer was not acting in an intoxicated manner immediately 
prior to the event date; or
    (B) At levels at, below, or within such range or dosage, unless 
convincing evidence indicates that--
    (1) Such introduction was not a culpable act of the officer's under 
the criminal law; or
    (2) The officer was not acting in an intoxicated manner immediately 
prior to the event date.


Sec.  32.4  Terms; construction, severability.

    (a) The first three substantive 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), such individual shall be presumed irrebutably, 
for all purposes, not to have survived the public safety 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 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 this part, a 
claimant has the burden of persuasion as to all material issues of 
fact, and by a preponderance of the evidence.
    (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 
(personal knowledge), 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 inference of voluntary intoxication 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 that the public safety officer--
    (1) As of or near the event date, was--
    (i) An abuser of alcohol;
    (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 event date, was under the influence of 
alcohol or controlled substances or otherwise acting in an intoxicated 
manner.
    (e) In determining a claim under the Act, at 42 U.S.C. 3796c-1, the 
certification described therein shall constitute prima facie evidence--
    (1) Of the public agency's acknowledgment that the public safety 
officer, as of the event date, was (as applicable)--
    (i) A public safety officer of the kind described therein;
    (ii) Serving the agency in an official capacity (with respect to 
public safety officers of any kind but disaster relief workers), or 
performing official duties as described in the Act, at 42 U.S.C. 
3796b(8)(B) or (C) (with respect to disaster relief workers);
    (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 rescue squad or ambulance crew member, an 
officially recognized or designated public employee member of one of 
the agency's rescue 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(8)(B) or 
(C)); and
    (iv) Killed as a direct and proximate result of a line of duty 
injury (with respect to a claim under subpart B of this part), or 
totally and permanently disabled as a direct result of such injury 
(with respect to a claim under subpart C of this part); and
    (2) That there are no eligible payees other than those identified 
therein.


Sec.  32.6  Payment and repayment.

    (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).
    (b) 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.
    (c) No payment shall be made to (or on behalf of) any individual, 
on the basis of being a particular public safety officer's spouse, 
unless he is the officer's spouse--
    (1) On the date of the officer's death; or
    (2) On the date of payment.
    (d) No payment shall be made save--
    (1) To (or on behalf of) a living payee; and

[[Page 43088]]

    (2) Pursuant to--
    (i) A claim filed by (or on behalf of) such payee; and
    (ii) Approval of such claim.
    (e) Any amounts that would be paid but for the provisions of 
paragraph (d) of this section shall be retained by the United States 
and not paid.
    (f) 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 claim if--
    (1) Approval of the claim was based, in whole or in material part, 
on his (or any other person's or entity's) fraud, concealment of 
evidence or information, false or inaccurate statements, mistake, or 
deception; or
    (2) His 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.


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 as consideration for the 
services;
    (3) An itemized description of the 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 disabling 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 that are unrelated to the Act;
    (5) A description of any special qualifications possessed by the 
representative (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 him 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 it is filed with the PSOB Office later than one year 
after the date of the final agency decision on 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 representative;
    (2) The complexity of the claim;
    (3) The level of skill and competence required to provide the 
representative's services;
    (4) The amount of time spent on the claim by the representative;
    (5) The results achieved as a function of the representative's 
services;
    (6) The level of administrative or judicial review to which the 
claim was pursued and the point at which the representative entered the 
proceedings;
    (7) The ordinary, usual, or customary fee charged by other persons 
(and by the representative) 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- or contingency fee; or
    (2) 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 person'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 person 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 representative. Such 
notice shall specify the amount the representative 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 it provides for any consideration other than 
under this section. A representative's receipt of consideration 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 disability finding that, at the time made, may 
be subject to a request for Hearing Officer determination, a motion for 
reconsideration, or a non-judicial appeal, shall be considered a final 
agency decision 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, at 42 U.S.C. 3796(a).


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 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, as of the event date, was the legally-adoptive parent of a 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 event date) is designated as 
beneficiary of a life insurance policy of a public safety officer as of 
that date only if such 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 any 
designation of an individual made pursuant to, during, or in 
contemplation of, his marriage (or purported marriage) to such officer 
shall be considered revoked by such officer as of the event date if--
    (1) The marriage (or purported marriage)--not having taken place as 
of the event date--did not take place when scheduled, unless 
preponderant

[[Page 43089]]

evidence indicates that the alteration in schedule was for reasons 
other than personal differences between the officer and the individual; 
or
    (2) The spouse (or purported spouse) is divorced from the officer 
subsequent to the date of designation and before the event date.
    Child-parent relationship means a relationship between a public 
safety officer and another individual, in which the individual is the 
parent (other than biological or legally-adoptive), as shown by--
    (1) A written acknowledgment of the individual's parenthood, signed 
by--
    (i) The individual, before the event date; or
    (ii) The officer;
    (2) Specific identification of the individual's parenthood, in a 
final judicial decree, issued before the event date, ordering the 
individual to contribute to the officer's support, or to take some 
other burdensome action, for that reason;
    (3) A public or religious record naming the individual as the 
officer's parent, with respect to which record the informant was--
    (i) The individual, before the event date; or
    (ii) The officer;
    (4) Affidavits or sworn statements from knowledgeable affiants 
without direct or indirect financial interest in any claim under the 
Act with respect to the officer, credibly attesting that--
    (i) Before the event date, the individual accepted the officer as 
his own child or otherwise held the officer out to be his own child; or
    (ii) The officer accepted the individual as his own parent or 
otherwise held the individual out to be his own parent;
    (5) A record of a public agency, or of a private school or welfare 
agency, naming the individual, before the event date, as the officer's 
parent;
    (6) The claiming--
    (i) Of the officer as the individual's dependent child on his 
income tax return, before the event date; or
    (ii) Of the individual as the officer's dependent parent on his 
income tax return (if executed by the officer, or with his knowledge 
and consent); or
    (7) Credible evidence--
    (i) Of the officer's receiving, before the event date, over half of 
his support from the individual;
    (ii) Of the officer's having, before the event date, as his 
principal place of abode the home of the individual and being, before 
the event date, a member of the individual's household; or
    (iii) Clearly indicating--
    (A) The individual's intention, before the event date, to hold the 
officer out to be his own child; or
    (B) The officer's acceptance of the individual as his own parent or 
intention to hold the individual out to be his own parent.
    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--
    (1) In the event of death as a result of a heart attack, when such 
evidence as may be available indicates to a degree of medical certainty 
that, as of the event date,
    (i) The officer's score under the most recent Framingham algorithm 
for predicting coronary heart disease within the next ten years, was 
not less than ten;
    (ii) Not less than seventy percent of the risk factors for 
cardiovascular disease identified by the American Heart Association 
were present in the officer; or
    (iii) The officer had not less than seventy-five percent stenosis 
by atherosclerotic plaques or a thrombosis in one or more of the 
following:
    (A) Left main coronary artery;
    (B) Left anterior descending coronary artery;
    (C) Left circumflex coronary artery; and
    (D) Right coronary artery; and
    (2) In the event of death as a result of a stroke, when such 
evidence as may be available indicates to a degree of medical certainty 
that, as of the event date, not less than seventy percent of the risk 
factors for stroke identified by the American Stroke Association were 
present in the officer.
    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.
    Direct and proximate result of an injury--Except as may be provided 
in the Act, at 42 U.S.C. 3796(k), a death results directly and 
proximately from an injury if the injury is a substantial factor in 
bringing it about.
    Engagement in a situation--A public safety officer is engaged in a 
situation only when he is in the course of actually enforcing the 
criminal law, actually suppressing fire, actually performing rescue or 
ambulance activity, actually performing activity encompassed within the 
duties described in the Act, at 42 U.S.C. 3796b(8)(B) or (C), or 
otherwise actually responding to a fire, rescue, or police emergency, 
and 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).
    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 change in the beneficiary; or
    (3) A change in the mode of benefit.
    Most recently executed life insurance policy of a public safety 
officer means that policy insuring the life of a public safety officer 
that--designating a beneficiary as of the event date, and being legal 
and valid (as a life insurance policy) upon its execution and remaining 
in effect as of that date--is the most recently executed one filed with 
the PSOB Office before the later of--
    (1) One year after the first filing of a claim with respect to such 
officer; or
    (2) The first date of payment on a claim with respect to such 
officer.
    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;
    (2) Entails non-negligible physical exertion; and
    (3) Occurs--
    (i) With respect to a situation in which an individual 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 an individual 
participates, under circumstances that objectively and reasonably--
    (A) Simulate in realistic fashion situations that pose significant 
dangers, threats, or hazards; and

[[Page 43090]]

    (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--
    (1) Biological or adoptive parent whose parental rights have not 
been terminated, as of the event date; or
    (2) Step-parent.
    Participation in a training exercise--A public safety officer 
participates in a training exercise only if it is a formal part of an 
official training program whose purpose is to train him in, prepare him 
for, or improve his skills in, particular activity or actions 
encompassed within his line of duty.
    Spouse of a public safety officer means a public safety officer's 
spouse, as of the date of the officer's death, except that, 
notwithstanding any other provision of law, the relevant jurisdiction 
of domicile is the officer's (as of the event date).
    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 born or legally adopted (as the 
case may be) before the lawful marriage of the spouse and parent, which 
spouse, as of the event 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.


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, no claim 
shall be approved without the following (which shall be necessary, but 
not sufficient, for approval of such claim), unless, for good cause 
shown, the Director grants a waiver:
    (1) Subject to paragraph (b) of this section, a certification from 
the public agency in which the public safety officer served (as of the 
event 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 officers of his kind, rank, and tenure; or
    (ii) Subject to paragraph (c) of this section, that it is not 
legally authorized to pay--
    (A) Any such benefits; or
    (B) Any such benefits to officers of such kind, rank, or tenure;
    (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--
    (i) Listing every individual known to him who is or might be--
    (A) The public safety officer's child, spouse, or parent; or
    (B) A beneficiary of any executed life insurance policy of the 
public safety officer's; and
    (ii) Describing every executed life insurance policy of the public 
safety officer's of which he has any knowledge.
    (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 the public safety 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 
event date, to have the closest relationship, except that any 
biological or legally-adoptive parent whose parental rights have not 
been terminated as of the event 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 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 
decision.

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


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 event 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 it about.
    Gainful work means full-or part-time activity that actually is 
compensated or commonly is compensated.
    Permanently disabled--An individual is permanently disabled only if 
there is a degree of medical certainty (given the current state of 
medicine) 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

[[Page 43091]]

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) 
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 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, no claim 
shall be approved without the following (which shall be necessary, but 
not sufficient, for approval of such claim), unless, for good cause 
shown, the Director grants a waiver:
    (1) Subject to paragraph (b) of this section, a certification from 
the public agency in which the public safety officer served (as of the 
event 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 officers of his kind, 
rank, and tenure; or
    (ii) Subject to paragraph (c) of this section, that it is not 
legally authorized to pay--
    (A) Any such benefits; or
    (B) Any such benefits to officers of such kind, rank, or tenure; 
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 event 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 event date, pursuant to the Act, at 42 U.S.C. 3796(b).


Sec.  32.27  Motion for reconsideration of 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 disability finding.

    (a) Unless, for good cause shown, the Director extends the time for 
filing, no disability finding shall be reconsidered if the motion under 
Sec.  32.27 is filed later than thirty-three days after the service of 
notice of the denial.
    (b) Notwithstanding any other provision of this section, no 
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 Hearing Officer determination has been filed 
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 
disability finding shall be stayed for not less than three years. 
Thereafter, the claimant shall have not more than nine years to file 
evidence 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 disability finding described in Sec.  32.27 shall be 
reversed without 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 public safety officer from the year before 
the date of the motion for reconsideration to the date of reversal by 
the PSOB Office.
    (f) Upon its affirming or reversing a 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 
determination under subpart E of this part--
    (1) Of--
    (i) His entire claim, if he has not moved for reconsideration of a 
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 disability 
finding under Sec.  32.27; and
    (2) Of a 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 decision:
    (1) Any denial not described in Sec.  32.27 that is not the subject 
of a request for 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 determination under paragraph (a)(1)(ii) of this section, 
unless the disability finding is the subject of a motion for 
reconsideration; and
    (3) Any affirmance that is not the subject of a request for 
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

[[Page 43092]]

made under the Act, at 42 U.S.C. 3796-1.


Sec.  32.32  Time for filing claim.

    (a) Subject to the Act, at 42 U.S.C. 3796d-1(c), a claim may be 
filed with the PSOB Office at any time after the event date.
    (b) A claimant may file with his claim such supporting evidence and 
legal arguments as he may wish to provide.


Sec.  32.33  Definitions.

    Application for assistance means claim.
    Dependent means dependent, as of the event date.
    Educational assistance benefits means assistance in paying 
educational expenses.
    Educational expenses means expenses of or for such of the following 
as may be in furtherance of the educational, professional, or 
vocational objectives set forth in a claim:
    (1) Tuition;
    (2) Room and board;
    (3) Books;
    (4) Computer equipment;
    (5) Supplies;
    (6) Fees; and
    (7) Transportation.
    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 properly would have been paid if a 
claim therefor had been filed in timely fashion by a proper claimant; 
or
    (2) With respect to whose disability, benefits under subpart C of 
this part properly have been paid, or properly would have been paid if 
a claim therefor had been filed in timely fashion.
    Financial assistance means educational assistance benefits.
    Financial need--An individual is in financial need if he would be 
unable to attend a program of education but for payment of the amount 
payable on his claim if appropriations were sufficient for full payment 
of all claims.
    Spouse of an eligible public safety officer means an eligible 
public safety officer's spouse, as of the date of the officer's death 
(where the officer's eligibility is pursuant to subpart B of this 
part), or as of the date of the claim (where the officer's eligibility 
is pursuant to subpart C of this part).


Sec.  32.34  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 requesting a Hearing Officer 
determination.
    (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.  32.35  Disqualification.

    No claim shall be approved if the child (or spouse, as applicable) 
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 child's (or spouse's, as applicable) 
full-, three-quarter-, half-, or less-than-half-time student status, 
according to such institution's own academic standards and practices.
    (b) In the event that appropriations are insufficient for full 
payment of all claims from children (or spouses, as applicable)--
    (1) The amount payable on claims from those in financial need shall 
be the full amount otherwise payable; and
    (2) The amount payable on claims from those not in financial need 
shall be reduced accordingly.
    (c) 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 claim if--
    (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 becomes ineligible for educational 
assistance benefits.


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 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 
decision.

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 subparts B, C (including affirmances of disability 
findings), and 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 disability 
finding.
    (b) A claimant may file with his request for 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 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 the

[[Page 43093]]

assignment described in paragraph (b) of this section.


Sec.  32.44  Determination.

    (a) 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 factual findings and legal conclusions that support 
it; and
    (2) Provide information as to appeals.
    (b) Upon his approving a claim, the Hearing Officer shall file 
notice of the same simultaneously with the Director (for his review 
under subpart F of this part), the PSOB Office, and OJP's General 
Counsel, which notice shall specify the factual findings and legal 
conclusions that support it.
    (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 may exclude any evidence 
whose probative value is substantially outweighed by considerations of 
undue delay, waste of time, or needless presentation of cumulative 
evidence.
    (e) Each witness at any hearing shall be sworn by oath or 
affirmation.
    (f) Each hearing shall be recorded, and the original of the 
complete record or transcript thereof shall be made a part of the claim 
file.
    (g) 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.
    (h) 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  Appeal.

    (a) In order to exhaust his administrative remedies, a claimant 
seeking relief from the denial of his claim shall appeal under subpart 
F of this part.
    (b) Consistent with Sec.  32.8, any denial that is not appealed 
under paragraph (a) of this section shall constitute the final agency 
decision, unless it is reviewed otherwise under subpart F of this part.

Subpart F--Appeals & Reviews


Sec.  32.51  Scope of subpart.

    Consistent with Sec.  32.1, this subpart contains provisions 
applicable to appeals and reviews of approvals and denials made under 
subpart E of this part, and reviews of approvals under the Act, at 42 
U.S.C. 3796c-1.


Sec.  32.52  Time for filing appeal.

    (a) Unless, for good cause shown, the Director extends the time for 
filing, no 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 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) The denial (under subpart E of this part) of any claim; and
    (2) The approval (under the Act, at 42 U.S.C. 3796c-1) of any 
claim.
    (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  Determination.

    (a) Upon the Director's 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 appeals.
    (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 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  Appeal.

    (a) A claimant seeking relief from the denial of his claim may 
appeal under 28 U.S.C. 1491 (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 decision.

Regina B. Schofield,
Assistant Attorney General, Office of Justice Programs.
[FR Doc. 05-14659 Filed 7-25-05; 8:45 am]
BILLING CODE 4410-18-P