[Federal Register Volume 83, Number 94 (Tuesday, May 15, 2018)]
[Rules and Regulations]
[Pages 22367-22387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09640]


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DEPARTMENT OF JUSTICE

28 CFR Part 32

[Docket No.: OJP (BJA) 1722]
RIN 1121-AA85


Public Safety Officers' Benefits Program

AGENCY: Office of Justice Programs, Department of Justice.

ACTION: Final rule.

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SUMMARY: This final rule finalizes two proposed rules in order to 
update and improve the regulations of the Office of Justice Programs 
(OJP) implementing the Public Safety Officers' Benefits (PSOB) Program, 
in order to incorporate several statutory changes enacted in recent 
years, address some gaps in the regulations, and improve the efficiency 
of the PSOB Program claims process. After careful consideration and 
analysis of the public comments on both proposed rules, the final rule 
incorporates a number of changes as discussed below.

DATES: This rule is effective June 14, 2018, except for amendatory 
instructions 10 (amending 28 CFR 32.12), 17 (amending 28 CFR 32.22), 
and 32 (amending 28 CFR 32.53), which are effective June 14, 2020.

FOR FURTHER INFORMATION CONTACT: Hope Janke, Bureau of Justice 
Assistance; Telephone: (202) 514-6278, or toll-free at (888) 744-6513.

SUPPLEMENTARY INFORMATION: The Public Safety Officers' Benefits (PSOB) 
Program provides a statutory death benefit to certain survivors of 
public safety officers who are fatally injured in the line of duty, 
disability benefits to public safety officers catastrophically injured 
in the line of duty, and education benefits to certain of the survivors 
and family members of the foregoing public safety officers. Under the 
Program, claims are filed with, and adjudicated by, the Office of 
Justice Programs (OJP) of the U.S. Department of Justice. The 
regulations for the PSOB Program are codified at 28 CFR part 32.

I. Executive Summary

A. Purpose of the Regulatory Action

    OJP published two proposed rules for the PSOB Program, one on July 
15, 2016, 81 FR 46019 (``PSOB I''), and the other on August 22, 2016, 
81 FR 57348 (``PSOB II''). PSOB I primarily focused on certain changes 
needed to implement statutory changes made by the Dale Long Act 
(affecting members of rescue squad and ambulance crews, as well as 
provisions related to certain heart attack/stroke/vascular rupture 
cases), and also to align the workings of the PSOB Program with certain 
provisions under the World Trade Center (WTC) Health Program, as well 
as with the September 11th Victim Compensation Fund (VCF). PSOB II was 
to implement recent statutory changes, address some gaps in the 
regulations, and to improve the efficiency of the PSOB Program claims 
process.
    During the comment periods, OJP received comments on its proposed 
rules from various parties. After further review of the proposed rules 
and careful consideration and analysis of all comments on both proposed 
rules, OJP has made amendments that are incorporated into this final 
rule. In addition, the final rule includes a technical change 
necessitated by the newly-enacted provisions of the Public Safety 
Officers' Benefits Improvement Act of 2017, Public Law 115-36, 131 
Stat. 841 (June 2, 2017). The final rule also includes (non-
substantive) changes to myriad cross-references to statutory 
provisions, referred to in the regulations, that--effective September 
1, 2017--were reclassified by the Law Revision Counsel of the House of 
Representatives from title 42 of the U.S. Code to title 34 of the U.S. 
Code.
    During the comment period, OJP received comments on its proposed 
rules from a number of interested parties: Various national police-, 
fire-, and rescue associations and unions; a foundation supporting 9/11 
responders; an organization that provides support and assistance to the 
survivors of fallen law enforcement officers; a prosecutor and former 
claims attorney, and two members of Congress. OJP received input from a 
total of 7 commenters on the first proposed rule, and 8 commenters on 
the second rule.
    After careful consideration and analysis of all comments received, 
OJP has made amendments that are incorporated into this consolidated 
final rule. The final rule also contains a few clarifying changes to 
provisions in the proposed rule where there were some previously 
unnoticed ambiguities, or where the language was more complex than 
necessary. A summary overview of the changes made by the final rule 
follows below, with a more complete discussion (below that) of the 
provisions of the rule, the public comments received on the proposed 
rule, the Department's response, and the final changes incorporated 
into the final rule.
    Pursuant to 34 U.S.C. 10287, this final rule is intended (insofar 
as consistent with law) to be effective and applicable to all claims 
from and after the effective date hereof, whether pending (in any 
stage) as of that date or subsequently filed.

B. Summary of the Major Changes in the Final Rule

    The final rule makes the following conforming changes required by 
the Dale Long Public Safety Officers' Benefits Improvement Act of 2012 
(Dale Long Act), Public Law 112-239, which, among other things, added 
(as codified at 34 U.S.C. 10282(9)(D)) as a new category of public 
safety officer--``a member of a rescue squad or ambulance crew who, as 
authorized or licensed by law and by the applicable agency or entity, 
is engaging in rescue activity or in the provision of emergency medical 
services''. The following changes implement the inclusion of the new 
category of public safety officer by the following revisions and 
additions to the PSOB regulations:
     Revise definition of Employed by a public agency;
     Revise definition of Line of duty activity or action to 
align with statutory inclusion of members of rescue squads and 
ambulance crews;
     Revise definition of Officially recognized or designated 
public employee member of a squad or crew;
     Add a definition for Officially recognized or designated 
volunteer member of a squad or crew;
     Revise definition of Official training program of public 
agency;
     Remove definition of Public employee member of a squad or 
crew, and

[[Page 22368]]

     Redesignate and revise definition for Public safety 
agency.
    The Dale Long Act also amended some provisions in the PSOB Act 
relating to cases involving heart attacks, strokes, or vascular rupture 
cases. The following changes in the final rule implement those changes:
     Define Competent medical evidence, Unrelated, and 
Something other than the mere presence of cardiovascular disease risk 
factors; remove certain no-longer-needed definitions.
    The Dale Long Act also amended provisions of the PSOB Act affecting 
the payment offset scheme for the PSOB Program relative to the 
September 11th VCF Program. The final rule makes the following changes 
in the regulations to implement these amendments, and also makes 
changes in order to align the PSOB Program with WTC Health Program and 
the VCF Program:
     Revise the definition of Injury to include WTC-related 
health condition;
     Add definition for WTC-related health condition =to enable 
the agency to use certain provisions of the WTCHP in determining 
whether a responder suffered an ``injury'' in connection with his 
response to the September 11, 2001, attacks;
     Add definition for September 11, 2001, attacks;
     Add definition for WTC responder; and
     Amend the Payment and repayment provision (28 CFR 32.6) to 
specify how the offset of PSOB benefits by September 11th VCF program 
will be calculated.
    The final rule makes the following changes in response to 
identified ambiguities and gaps in existing regulations, as well as 
opportunities to simplify and improve the program's administration:
     Amends the Computation of time; filing provision (Sec.  
32.2) to make explicit agency authority to prescribe an online claim 
filing system;
     Amends Time for filing a claim provisions (Sec. Sec.  
32.12 and 32.22), and adds a suite of new definitions--Claim, Claimant, 
Foundational evidence as to status and injury, Intention-notice filer, 
Notice of intention to file a claim, Supporting-evidence collection 
period--to implement a revised version of the ``completed application'' 
notion proposed in PSOB II;
     Amends Authorized commuting to clarify that return travel 
from responding to a fire-, rescue-, or police emergency is included;
     Amends Gross negligence to allow for ``reasonable excuse/
objective justification'' exceptions;
     Amends Line of duty injury to make explicit the inclusion 
of injuries sustained as result of retaliation for line-of-duty actions 
taken by an officer;
     Makes express the coverage of certain trainees by defining 
new terms (Candidate-officer and Candidate-officer training), and makes 
corresponding amendments to the definitions of Firefighter, 
Involvement, and Rescue squad or ambulance crew;
     Amends the definition of Spouse to reflect current 
jurisprudence, including the recent holding of the U.S. Court of 
Appeals for the Federal Circuit in Hesson v. Department of Justice, 664 
Fed. App'x 932 (2016), a PSOB case;
     Makes express the circumstances under which officers 
engaging in public safety activity outside of their jurisdictions would 
be considered to be acting in the line of duty by adding a series of 
presumptions in the Evidence provision at Sec.  32.5;
     Amends the Evidence provision at Sec.  32.5 to create a 
legal presumption that certain legally licensed or -authorized 
volunteer fire departments satisfy various provisions the definition of 
Instrumentality and a revised version of the substance of the 
definition of Volunteer fire department proposed in PSOB II;
     Amends the Evidence provision at Sec.  32.5(b) to include 
specific reference to the PSOB Act, in order to ensure proper 
application of the amendment made to the Act by the PSOB Improvement 
Act of 2017 relating to weight of evidence and factual findings;
     Amends the Fees for representative services provision 
(Sec.  32.7) to provide for a percentage-fee option; and
     Removes definitions for Dependent, Eligible dependent, and 
Tax year to conform to statutory amendments made by the Dale Long Act.

C. Estimated Costs and Benefits

    This final rule is considered an E.O. 13771 deregulatory action. 
Details on the estimated cost savings of this proposed rule can be 
found in the rule's economic analysis. The rule is expect to lead to an 
increase in transfer payments. In addition, it will result in net cost 
savings of approximately $24,723 per year to claimants and public 
safety agencies in substantiating claims. As set out in more detail 
below, this figure is based on the estimated annual cost savings to the 
public from changes to the Dale Long Act implementing provisions that 
will reduce the number of independent medical reviews required; and a 
variety of marginal efficiencies and burden reduction for claimants 
created by certain streamlined provisions and definitions.

II. Discussion of the Provisions of the Final Rule and Responses to 
Public Comments on the Proposed Rules

A. Section 32.2--Computation of time; filing.

    This section sets forth the timeframes, means, and deadlines for 
filing a claim. The proposed rule sets forth some changes relating to 
specification of what would be considered ``good cause'' for purposes 
of waiver of filing deadlines. OJP received some comments on the PSOB I 
proposed rule expressing concern that ``good cause'' did not cover 
circumstances in which a claimant does not file a claim within time due 
to a lack of regulation or process such as 9/11 exposure claims, and in 
these comments OJP was asked to add to the proposed definition of 
``good cause'' two provisions to address such circumstances. One 
commenter suggested that OJP create a three-year filing window for 9/
11-health related death or disability claims similar to that provided 
in VCF regulations that runs from three years of the date of the 
regulation's publication. Another commenter recommended that ``good 
cause'' also be extended to cases in which the claimant's death or 
disability claim was not covered by the PSOB Program at the time of the 
officer's death or disability or in cases where regulations permitting 
such a claim were not promulgated in time for a claim to be timely 
made.
    OJP agrees that 9/11 exposure claimants should be provided with 
additional time to file claims for death and disability benefits. 
Rather than define ``good cause,'' OJP has decided that particular 
issues can be best addressed by establishing specific exceptions to the 
regulations that prescribe the time for filing death and disability 
claims. Accordingly, the final rule amends those sections. See 
discussion below on Sec. Sec.  32.12 and 32.22--Time for filing a 
claim.
    The final rule also makes minor technical changes for clarity at 
Sec. Sec.  32.2(c) and 32.2(g) to make express reference to the 
Director of BJA's authority to prescribe filing of claims by electronic 
means (Sec.  32.2(g)), in anticipation of the rollout of the new online 
PSOB claim system.

B. Sections 32.3, 32.13, 32.23, and 32.33--Definitions.

    The proposed rules presented various technical and substantive 
changes/additions to the definitions sections of the rule in order to 
implement certain statutory changes (in particular, the Dale Long Act), 
and also to align the PSOB program with the WTC Health Program.

[[Page 22369]]

The proposed rules also amended some definitions and added others to 
address gaps and remove ambiguities, and to implement improvements in 
claims processing. Considering all comments received, and upon further 
study of the regulatory and statutory scheme, OJP has revised some 
definitions as in the proposed rules, and declined to adopt others. 
These changes are discussed by topic below.
1. Definitions To Implement the Dale Long Act Amendments Applicable to 
Members of a Rescue Squad or Ambulance Crew
    The Dale Long Act amended the PSOB Act to include a new category of 
public safety officer--``a member of a rescue squad or ambulance crew 
who, as authorized or licensed by law and by the applicable agency or 
entity, is engaging in rescue activity or in the provision of emergency 
medical services''. This amendment removed the requirement that an 
individual member of a rescue squad or ambulance crew be a ``public 
employee'', and also established the requirement that employee- and 
volunteer members of public agency and nonprofit entity ambulance 
squads and rescue crews actually be engaging in rescue activity or 
providing emergency medical services in order to qualify as public 
safety officers under the Act.
    The proposed rule provided revised definitions for Line of duty 
activity or action and Officially recognized or designated public 
employee member of a squad or crew and Eligible public safety officer 
to implement these changes. The agency did not receive any comments on 
this aspect of the proposed rule. After further analysis, the agency 
has determined that proper implementation of the statutory changes 
requires some additional definitions and slight changes to what was set 
forth in the proposed rule.
    Accordingly, the final rule amends the program regulations in a 
more efficient way (with the same substantive result proposed to be 
reached in PSOB II)--i.e., the final rule amends the program 
regulations by removing or amending the provisions that related to the 
former statutory requirement that members of a rescue squad or 
ambulance crew be ``public employees'' and adding provisions that 
reflect the new statutory requirements that replaced the former 
``public employee'' requirement (see definitions of Employed by a 
public agency, Line of duty activity or action, Officially recognized 
or designated employee member of a squad or crew, Officially recognized 
or designated volunteer member of a squad or crew, and Public safety 
agency).
2. Definitions To Implement Dale Long Act Amendments Relating to the 
Heart Attack-, Stroke- or Vascular Rupture Cases
    The Dale Long Act amended the statutory presumption in the PSOB Act 
covering certain fatal heart attacks, strokes, and vascular ruptures 
(at 34 U.S.C. 10281(k). Specifically, the new language provides that 
the presumption of coverage is overcome if ``competent medical evidence 
establishes that the heart attack, stroke, or vascular rupture was 
unrelated to the engagement or participation or was directly and 
proximately caused by something other than the mere presence of 
cardiovascular-disease risk factors.''
    PSOB I proposed to add definitions for Unrelated, Competent medical 
evidence, and Something other than the mere presence of cardiovascular 
disease risk factor. One commenter expressed approval that ``PSOB is 
proposing to amend approved causes of death to include heart attacks, 
strokes, and vascular ruptures.'' OJP appreciates the support for the 
proposed rule but notes that the commenter appears to misunderstand the 
operation of the legal presumption in the statute. The proposed rule 
would not have amended anything relating to ``cause of death''--but 
rather would have implemented the statutory changes made to the 
presumption of a line-of-duty death for certain heart attack/stroke/
vascular rupture cases by defining the new terms not defined in the 
statute itself.
    Another commenter supported the proposed rule and stated that it 
would eliminate unnecessary medical evidence; another stated that the 
proposed rule would implement the Hometown Heroes Act as Congress 
intended. One commenter noted that the Dale Long Act did not define the 
phrase ``something other than the mere presence of cardiovascular 
disease risk factors'' and stated that the proposed definition did not 
support the intent of the Dale Long Act of ensuring that the families 
of officers who died or were permanently and totally disabled in the 
line of duty were provided benefits, and asked that the proposed 
definition be removed from the final rule. OJP appreciates these 
comments but does not agree, that the proposed definition is contrary 
to the intent of the Dale Long Act, or that it would limit the 
availability of benefits other than as the statute already has 
directed. The statutory term is key to determining when the presumption 
afforded by 34 U.S.C. 10281(k) is rebutted. In itself, the phrase 
``something other than'' is inherently ambiguous; to leave it undefined 
invites uncertainty. Accordingly, by defining the term in the 
regulation, OJP provides clarity and direction as to the circumstances 
under which the presumption would be rebutted, and the nature of the 
additional evidentiary development and medical review of the record 
that may be required in certain cases. Accordingly, the final rule 
adopts, with minor, non-substantive change, the language of the 
proposed rule, which implements the statutory changes by providing 
definitions of the statutory terms, so that claimants are informed 
under what circumstances the presumption provided at 34 U.S.C. 10281(k) 
may be overcome.
3. Provision Relating to the WTC Health Program and September 11th VCF 
Program
    PSOB I proposed to amend the PSOB regulations in an effort to align 
the PSOB Program with the WTC Health Program and the VCF Program: 
Defining new terms--September 11, 2001, terrorist attacks, List of WTC-
related health conditions, and Physical harm (and amending the Evidence 
provision of the regulation at 32.4 to include this latter term)--and 
amending the term Injury to include the notion of a health condition 
that is ``medically associated with a WTC-related health condition.''
    One commenter stated that although it was generally supportive of 
the regulatory changes proposed to address the unique circumstances of 
9/11 claims, it noted that OJP relied on an outdated version of VCF's 
definition of ``physical harm'' in 28 CFR 104.2. The commenter noted 
that the current rule, codified at 104.2(d) as published in the Federal 
Register on June 15, 2016, 81 FR 38936, 38941, added to the previous 
definition, ``A WTC-Related Physical Health Condition,'' which 
eliminated the requirements that a WTC-Related Physical Health 
Condition must have been treated by a medical professional within a 
reasonable period of time from the date such harm was discovered and be 
verifiable by contemporaneously created medical records. Another 
commenter noted the same issue and stated that the proposed rule should 
reflect the VCF's amended definition. Based on the comments, OJP has 
determined that proposed incorporation of the term ``physical harm'' as 
a definition in the PSOB rule is not necessary, as the VCF regulations 
do not require such harm to establish a WTC-related physical health 
condition. Accordingly, OJP has omitted the definition from the final 
rule.

[[Page 22370]]

    The proposed rule did not include a definition for ``medically 
associated'' (a term included in the proposed amendment of the 
definition of Injury), as OJP had anticipated that the analysis 
required for such determinations was better suited for the expertise of 
the WTC Health Program. Some commenters stated that the rule should 
include provisions that would enable the PSOB Program independently to 
identify as an injury those conditions ``medically associated'' with 
WTC-related health conditions. Other commenters pointed out that the 
law authorizing the Administrator of the WTC Health Program to certify 
a health condition as ``WTC-related'' also extends to conditions not on 
the List of WTC-Related Health Conditions, by virtue of the 
Administrator's authority to require the WTC Health Program cover 
conditions that he finds to be ``medically associated with a WTC-
related health condition.'' \1\ As the WTC Health Program Administrator 
is authorized to make such certifications, the commenters suggest that 
the PSOB Program should also adopt this authority.
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    \1\ 42 U.S.C. 300mm-22(b)(2)(A)-(B).
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    Although the proposed rule did not include ``medically associated'' 
conditions within its definition, after careful consideration, OJP 
recognizes that a condition certified by the Administrator of the WTC 
Health Program as ``medically associated'' with a WTC-related health 
condition could be an injury that directly and proximately causes a 
public safety officer's death or permanent and total disability. 
Accordingly, the final rule replaces the definition of List of WTC-
related health conditions with a definition of WTC-related health 
condition, a term that is broader than the one in the proposed rule.
    OJP is not inclined, despite encouragement by one commenter, 
independently to determine when a condition is ``medically 
associated,'' because OJP has determined that it should rely on the 
expertise of the WTC Health Program in these matters. As revised in the 
final rule, the definition of a ``WTC-related health condition'' allows 
the agency to use certain provisions of the WTCHP in determining 
whether a responder suffered an ``injury'' in connection with his 
response to the September 11, 2001, attacks. To further this alignment 
of the PSOB Program with the WTC Health Program, the final rule also 
defines the terms September 11, 2001, attacks and WTC responder (which 
relates to the definition of Injury) to tie them to the WTC Health 
Program statute and implementing regulations at 42 CFR part 88.
4. Definitions Relating to Trainees, Suppression of Fire, Onsite Hazard 
Management, and Officers Acting Outside of Jurisdiction
    OJP had attempted, in its proposed rule, to expand coverage under 
the PSOB Program to include trainees (and certain others) as ``public 
safety officers'' under circumstances in which they have no authority 
to engage in public safety activity, and also to expand coverage to 
officers responding outside of their jurisdiction where no law 
authorized such response. A number of commenters understandably 
applauded these proposed provisions, strictly on policy grounds, rather 
than on the basis of anything authorized by the law. Regarding the 
proposed addition of trainees (and others) as public safety officers 
and coverage of officers acting outside of their jurisdictions where no 
law authorized such action, however, one commenter forcefully pointed 
out that the provision was contrary to the language of the PSOB Act and 
to the legislative history of the Dale Long Act, and that a provision 
covering injuries sustained by law enforcement trainees with no 
authority to enforce the law was at odds with Hawkins v. United States, 
469 F.3d 993 (Fed. Cir. 2006), providing that a law enforcement 
officer's ``actual responsibilities and obligations'' determine whether 
an individual is in fact a law enforcement officer.
    Upon further reflection, careful review of PSOB rulings by the 
federal courts, see, e.g., Howard v. United States, 229 Ct. Cl. 507 
(1981); Budd v. United States, 225 Ct. Cl. 725 (1980); Tafoya v. United 
States, 8 Cl. Ct. 256 (1985); Yanco v. United States, 45 Fed. Cl. 782 
(2000); and Amber-Messick ex rel. Kangas v. United States, 483 F.3d 
1316 (Fed. Cir. 2007); and close consideration of the lengthy 
discussion in H.R. Rep. 112-548 (accompanying the Dale Long Act), OJP 
has determined these proposed expansions of coverage may not lawfully 
be made by regulation, as such expansions would be ultra vires under 
the PSOB Act. The discussion in the House Report on the Dale Long Act 
refers specifically to the authority requirement under the PSOB Act:

[U]nder the PSOBA as currently in effect, police academy trainees 
are considered ``law enforcement officers'' only after they acquire 
the legal authority and responsibility to go out and enforce the law 
by making arrests and detaining real or suspected criminals, 
because, under the PSOBA and related statutes, one cannot be a ``law 
enforcement officer'' unless one actually has the legal duty to 
enforce the criminal law; and the same goes for fire-fighter 
trainees, who are not considered ``firefighters'' until they 
actually acquire the legal authority and responsibility to go out 
and protect the public by fighting fires, because one is not a 
``firefighter'' under the PSOBA and related statutes if one is not 
under the duty to fight fires. Mere authority to engage in training 
activities has never been enough to make someone a public safety 
officer, and when the dangers inherent in some academy or other 
training exercises lead to fatal or catastrophic injury, only those 
trainees who coincidentally happen already to have that outside 
legal authority and responsibility are covered under current law.

H. Rep. No. 112-548 (2012).
    OJP has concluded that the specific expansions that were proposed 
to cover trainees and officers acting outside their jurisdictions, 
however desirable, may be accomplished only through legislation. For 
this reason, the final rule does not include the specific expansions 
proposed. Nonetheless, the final rule does modify the current 
regulations to make express that trainee officers are covered, where 
those trainee-officers do have legal authority. To this end, the final 
rule adds the following new definitions: Candidate officer and 
Candidate-officer training, and amends the definitions of Firefighter, 
Involvement, and Member of a rescue squad or ambulance crew to include 
the terms ``candidate-officer'' and ``candidate-officer training''. As 
a result of these revisions, the final rule makes clear that a trainee 
public safety officer who possesses requisite authority would be 
covered as a ``public safety officer'' under the PSOB Act.
    Similarly, for an officer acting outside of his jurisdiction, the 
final rule clarifies the circumstances when such an officer would be 
covered, through the mechanism of certain evidentiary presumptions. 
(See discussion below of Evidence at Sec.  32.5.)
5. Amendment of Definition of ``Child of a Public Safety Officer''
    The Dale Long Act amended the definition of ``child'' under the 
PSOB Act by tying the term, for the first time, specifically to ``the 
time of the public safety officer's fatal or catastrophic injury.'' 34 
U.S.C. 10284(3) (Emphasis added.) Pursuant to this statutory amendment, 
the final rule makes conforming changes to the regulatory definition of 
Child of a public safety officer.
6. Provisions Relating to Claims Processing
    In OJP's current practice, when it receives an application for 
benefits that lacks the basic required documents

[[Page 22371]]

needed to render a determination, it assigns it a claim number, 
processes it as a claim from the moment a claim form is received, and 
thereafter conducts biweekly outreach efforts to obtain from the 
applicant and the officer's public agency information required to 
establish eligibility for benefits. Claims lacking the basic required 
documents are currently treated as part of the backlog, even though 
those claims are not ready for adjudication.
    In an effort to improve the efficiency of claims processing, PSOB 
II proposed to add a new provision, at Sec.  32.9, setting forth a new 
notion, called ``completed application'' for benefits. Under the 
proposed rule, the PSOB Office would maintain and publish on the PSOB 
Program website a list of basic required documents that claimants would 
be required to file with applications for PSOB Program death, 
disability, and education benefits--which would be the absolute minimum 
documentation that the PSOB Program would require before treating an 
application as a claim, and devoting resources to processing it as 
such.
    OJP did not receive specific comments about the proposed Sec.  
32.9. As discussed below, however, at Time for filing a claim under 
Sec. Sec.  32.12 and 32.22, the final rule implements the substance of 
the proposed mechanism in a somewhat different way, and with largely 
the same effect. Accordingly, the final rule does not include a new 
Sec.  32.9, but, instead, provides new definitions for the following 
terms: Claim, Claimant, Foundational evidence as to status and injury, 
Intention-notice filer, Notice of intention to file a claim, and 
Supporting-evidence collection period. Under the final rule, an 
individual may elect (instead of filing a claim) to file a ``notice of 
intention to file''--which essentially stops the clock for a year 
(called the Supporting-evidence period), while the individual and the 
involved agencies gather Foundational evidence (which was what the 
proposed rule had intended to refer to by a list on the PSOB website.) 
At any time during this period, an individual may opt to submit a 
claim. In line with the proposed rule, this mechanism is designed to 
assist individuals who intend to file claims by affording them time to 
gather the information necessary for the claim, as well as provide 
transparency regarding the progress of the process so that they better 
understand what foundational evidence is required for their claims. In 
addition, the mechanism set out in the final rule will assist OJP in 
improving efficiencies in claims review.
7. Provisions Relating to Statutory Limitations on Payment (34 U.S.C. 
10282)
    PSOB II proposed changes to the existing definitions of Voluntary 
intoxication at the time of death or catastrophic injury and Gross 
negligence, which implement statutory limitations in the PSOB Act found 
at 34 U.S.C. 10282. The preamble to the proposed rule explained that 
the aim of these changes was OJP's effort to ``focus its inquiry'' with 
regard to the issues arising under this provision, and ``to 
streamline'' and ``to simplify the application of this statutory bar to 
payment and limit its application.'' The proposed rule also amended the 
term defined in the existing regulation (Voluntary intoxication at the 
time of death or catastrophic injury) to reflect a statutory amendment 
that changed the statutory reference to voluntary intoxication at ``the 
time of the officer's fatal or catastrophic injury.''
    Since the proposed rule was published, however, the legal landscape 
with regard to the limitations provision in the PSOB Act has changed 
significantly. Enacted on June 2, 2017, the PSOB Improvements Act of 
2017 amended 34 U.S.C. 10282 to provide that when determining a PSOB 
claim, OJP ``shall presume that none of limitations'' in 34 U.S.C. 
10282(a) applies, and that it ``shall not determine that a limitation . 
. . applies, absent clear and convincing evidence.'' Public Law 115-36.
    This statutory amendment alters how the agency must apply 34 U.S.C. 
10282. OJP has determined that most of the proposed changes to the 
definition of Voluntary intoxication at the time of death or 
catastrophic injury are not necessary. Consonant with the thrust of the 
proposed rule, however, and with the positive commentary received in 
connection with the proposed changes, the final rule does (1) replace 
the existing definition of Voluntary intoxication at the time of death 
or catastrophic injury with a new definition of Voluntary intoxication 
at the time of fatal or catastrophic injury that largely restates the 
substance of the existing one, but is framed using much more 
``streamlined'' and ``simplified'' language that is tied to analogous 
changes to the existing regulatory definition of the statutory term 
Drugs and other substances; and (2) amend the definition of Gross 
negligence to allow for reasonable excuse- and objective justification 
exceptions from the departure from standard of care.
8. Authorized Commuting
    A few commenters commented on the proposed amendment of the 
definition of authorized commuting in PSOB II. One commenter supported 
the clarification in the proposed rule that return travel from public 
safety is a line of duty activity and recommended that OJP revise 
paragraph (2)(ii) of the definition of authorized commuting in the 
proposed rule to cover travel in a vehicle not issued by the officer's 
agency pursuant to an authorization by the agency that the officer use 
such vehicle for work. Another commenter, while supporting the proposed 
revision of the rule to cover return travel from public safety 
activity, recommended that OJP revise paragraph (2) of the proposed 
rule to cover all travel to and from work as in the line of duty.
    OJP declines to expand the definition of ``authorized commuting'' 
to include all travel to and from work, as this would be inconsistent 
with the rationale and legal basis for the current rule. The current 
rule is based on well-established exceptions to the ``coming and 
going'' rule and covers three categories of work-related travel 
situations that indicate a connection between the officer's employment 
and the circumstances of the officer's injury such that the injury can 
be said to have been sustained in the line of duty.\2\ As described in 
OJP's 2006 rulemaking, these exceptions are: ``(1) the officer is 
responding to a particular fire, police or rescue emergency; (2) the 
officer is commuting to or from work in an agency vehicle; or (3) the 
officer is commuting to or from work in a personal vehicle that [the 
officer] is required to use for work.'' \3\
---------------------------------------------------------------------------

    \2\ See Russell v. Law Enforcement Assistance Admin., 637 F.2d 
1255, 1263-64 (9th Cir. 1980).
    \3\ 71 FR 46028, 46033 (Aug. 10, 2006).
---------------------------------------------------------------------------

    The final rule amends the definition in a slightly different way 
from the proposed rule, but with substantially the same result of 
including as authorized commuting travel to and from work in those 
circumstances where: (1) The officer is responding to a particular 
fire, police or rescue emergency (or returning from such response); (2) 
the officer is commuting to or from work in an agency vehicle; or (3) 
the officer is commuting to or from work in a personal vehicle that the 
officer is required to use for work.
9. Line of Duty Injury
    Two commenters supported the proposed rule's revision of the term 
``line of duty injury'' to include those injuries sustained as a result 
of retaliation for actions taken in the line of duty by an officer. 
Consistent with

[[Page 22372]]

the thrust of PSOB II, the final rule amends the term to include those 
injuries sustained as a result of retaliation for actions taken in the 
line of duty by an officer.
10. Instrumentality
    With respect to non-profit volunteer fire departments, the proposed 
rule introduced a new definition of volunteer fire department in an 
attempt to include those volunteer fire departments that would not 
otherwise meet the definition of public agency because the particular 
arrangements they have with their jurisdictions. One commenter 
generally supported the proposed definition of a volunteer fire 
department, but expressed concern about the third condition in the 
proposed rule, to require that a VFD provide ``fire protection to the 
public without preference or subscription.'' Noting that some VFDs 
provide services to all members of the public but are funded through 
subscriptions, the commenter recommended that the term ``subscription'' 
be deleted from the rule. A second commenter disagreed with the 
proposed definition of volunteer fire department, asserting that the 
proposed regulation would revise the definition to permit VFDs to 
qualify as instrumentalities ``even when they are not 
instrumentalities'' and, in so doing, impermissibly ``writes the words 
out of the law.'' The commenter recommended that OJP should consider 
amending its own definition of instrumentality ``to better reflect the 
realities of volunteer fire departments.'' The final rule establishes 
an evidentiary presumption, in lieu of the definitional change that had 
been proposed in PSOB II, with substantially the same result and which 
addresses the concerns raised by the commenters. (See discussion below 
of Sec.  32.5.)
11. Spouse
    The definition is modified to reflect current jurisprudence, 
including the holding of the U.S. Court of Appeals for the Federal 
Circuit in a PSOB case decided only last year, Hesson v. Department of 
Justice, 664 Fed. App'x 932 (2016). The final rule makes clear that the 
regulatory definition does not refer to the injured or deceased public 
safety officer.
12. Proposed Definitional Changes That Are Not Included in Final Rule
    PSOB II proposed various other changes to the definitions (not 
otherwise discussed above), which are not adopted in the final rule:
     Injury--PSOB II proposed to amend the definition of Injury 
to make certain changes, including some changes relating to stress and 
strain (including mental stress and strain) and some changes that would 
have added a series of examples of types of injuries. After considering 
comments that criticized the proposed amendments on the grounds that 
they may be misleading and could be interpreted as not including other, 
similar injuries, and after reflecting further on certain relevant 
judicial holdings in several PSOB cases,\4\ OJP declines, in this final 
rule, to make the amendments to this definition that were proposed. 
Unrelated to this, however, OJP does amend the definition of Injury 
with regard to WTC-related health conditions, discussed above in B.3.
---------------------------------------------------------------------------

    \4\ Juneau v. Dep't of Justice, 583 F.3d 777 (Fed. Cir. 2009) 
(``conditions caused by `stress or strain' '' not covered under 
PSOB); Yanco v. United States, 258 F.3d 1356 (Fed. Cir. 2001) (``. . 
. Congress's intent in enacting the Benefits Act was to provide a 
death benefit for the survivor or survivors of a law enforcement 
officer who dies as the result of what one would understand to be 
some kind of a physical assault or trauma to the body. . . . In 
short, the legislative history points away from an intent on the 
part of Congress to have the statutory term 'personal injury' 
include mental strain.''), aff'g 45 Fed. Cl. 782 (2000); Greeley ex 
rel. Greeley v. United States, 50 F.3d 1009 (Fed. Cir. 1995); 
Russell v. United States, 231 Ct. Cl. 1022; Smykowski v. United 
States, 647 F.2d 1103 (Ct. Cl. 1981) (``exclu[sion of] stress [and] 
strain . . . from the coverage of the Act [is] amply justified by 
the statutory language, legislative history, and medical 
statistics.''); Morrow v. United States, 647 F.2d 1099 (Ct. Cl. 
1981); Curtis v. Dep't of Justice, 342 Fed. App'x 610 (Fed. Cir. 
2009) (``the PSOB Act does not provide compensation for'' such 
conditions as ``mental strains such as PTSD and depression''); 
Canfield v. United States, No. 339-79 (Fed. Cir. Dec. 29, 1982) 
(non-coverage of strain ``is well within the purposes and intent of 
the statute''); Porter v. United States, 64 Fed. Cl. 143 (2005), 
aff'd mem., 176 Fed. App'x 111 (Fed. Cir. 2006); Durco v. United 
States, 14 Cl. Ct. 424 (1988); North v. United States, 555 F. Supp. 
382 (Cl. Ct. 1982); Cook v. United States, No. 05-1050C (Fed. Cl. 
Jun. 15, 2006); Davison v. United States, No. 99-361C (Fed. Cl. Apr. 
19, 2002); Askew v. United States, No. 542-83C (Cl. Ct. Aug. 27, 
1984); see also Harrison v. Dep't of Justice, No. 14-8006 (Fed. Cir. 
Oct. 16, 2015).
---------------------------------------------------------------------------

     PSOB Counsel--PSOB II proposed to add a new section 32.10 
(PSOB Counsel) that, among other things, would have severely limited 
the internal, administrative review of factual findings in PSOB claims. 
Some favorable comments were received (mostly on grounds of preventing 
unnecessary delay by counsel). Notwithstanding the opinion reflected in 
these comments, in this connection, OJP notes that the Office of the 
Inspector General's ``Audit of the Office of Justice Programs' 
Processing of Public Safety Officers' Benefit Programs Claims'' (Audit 
Division Report No. 15-21: July, 2015) determined that the chronic 
delays in processing of PSOB claims had various causes, none of which 
was attributable to actions taken by the OJP Office of the General 
Counsel, or the PSOB Legal Counsel. Another commenter (currently a 
prosecutor--and thus a public safety officer under the PSOB Act--and 
formerly a claims attorney) expressed strenuous opposition to the 
proposal, citing both a very-detailed and sharply-critical, recent 
determination by the Department of Justice's Inspector General 
(Oversight and Review Division Report #16-03 (May 3016)) ``that the 
Director of the Bureau [of Justice Assistance], in a PSOB Act case, 
made factual findings that were not supported by any evidence in the 
record and actually paid the claim against the law'' and the House 
Judiciary Committee Report that accompanied the Dale Long Act (H.R. 
Rep. No. 112-548). The House Report does include discussion that runs 
counter to the thrust of the proposal:

    When it approves claims for the benefits payable under the PSOBA 
and related statutes, the Bureau of Justice Assistance of the 
Justice Department's Office of Justice Programs has a legal duty to 
do so judiciously. The Bureau has the concurrent duty to be both the 
impartial administrator of the PSOBA according to the law and the 
impartial guardian of the public treasury with respect to it. 
Failure to administer the PSOBA program in keeping with these two 
principles could jeopardize the program's continued existence. It is 
just as problematic for the program if the Department of Justice 
pays a PSOBA claim when payment is not unequivocally warranted by 
the PSOBA program statutes and implementing regulations, or is not 
supported by the evidence, as it is for the Department to deny 
payment when payment is clearly required.
    Under 31 U.S.C. 3528, every Department official who determines 
PSOBA claims and/or certifies payments is personally ``responsible 
for . . . repaying a payment [that is] illegal, improper, or 
incorrect because of an inaccurate or misleading certificate; [that 
is] prohibited by law; or . . . that does not represent a legal 
obligation under the appropriation . . . involved'' unless the 
determination ``was based on official records and the official did 
not know, and by reasonable diligence and inquiry could not have 
discovered, the correct information.'' Under 31 U.S.C. 3528, every 
Department official who determines PSOBA claims and/or certifies 
payments is personally ``responsible for . . . repaying a payment 
[that is] illegal, improper, or incorrect because of an inaccurate 
or misleading certificate; [that is] prohibited by law; or . . . 
that does not represent a legal obligation under the appropriation . 
. . involved'' unless the determination ``was based on official 
records and the official did not know, and by reasonable diligence 
and inquiry could not have discovered, the correct information.''
    Moreover, under 31 U.S.C. 1301(a), a payment pursuant to a 
legally unwarranted PSOBA determination would appear to be a

[[Page 22373]]

violation of 31 U.S.C. 1341(a)(1)(A), the Anti-Deficiency Act, which 
is a felony statute in addition to carrying civil and administrative 
penalties, 31 U.S.C. 1350, 1349(a).
* * * * *
    Every PSOBA case is a legal claim against the Treasury, and the 
[PSOB] regulations and consistent administrative precedents have 
helped to ensure that the Federal Government, which is in the midst 
of its greatest debt crisis since the Founding, decides these claims 
strictly in accordance with the PSOBA and the underlying law 
governing legal gratuities, in a generally consistent and orderly 
manner over time, and based on real, objective, and legally 
sufficient evidence that objectively meets the standards of proof 
set forth in the law, rather than speculation, fancied legislative 
intent, uncorroborated assertions, biased evidence, a slanted 
record, incomplete information, or sympathy, however understandable 
or deeply felt.

H.R. Rep. No. 112-548 (2012). Given all the foregoing, OJP declines, in 
this final rule, to add the proposed Sec.  32.10.
     Miscellaneous proposed changes--PSOB II proposed to amend 
the PSOB regulatory definitions of Beneficiary of life insurance policy 
of public safety officer, Engagement in a situation, Gainful work, 
Medical certainty, Non-routine strenuous physical activity, Non-routine 
stressful physical activity, Permanently disabled, and Totally 
disabled. After reflecting further on the text of the PSOB Act itself, 
and on the discussion about the Department's responsibilities in 
adjudicating PSOB claims, quoted immediately above, from the House 
Judiciary Committee Report that accompanied the Dale Long Act (H.R. 
Rep. No. 112-548), OJP declines, in this final rule, to make proposed 
amendments to these definitions.

C. Section 32.4--Terms; construction; severability.

    The final rule makes a change to this section to make it parallel 
to a provision of the PSOB Act (at 34 U.S.C. 10285(d)), so that the 
same rule regarding the operation of the legal doctrine of 
incorporation applies both in the PSOB Act and in the PSOB regulations.

D. Section 32. 5--Evidence.

    As discussed in Section B.4 above, the PSOB II rule proposed, ultra 
vires, to expand coverage under the PSOB Program to certain law 
enforcement officers and firefighters who respond to public safety 
events outside of their respective jurisdictions even where no law 
authorized such response.
    After reconsidering the regulatory and statutory schemes, OJP is 
adopting amendments to Sec.  32.5 in this final rule, to establish 
certain evidentiary presumptions that will accomplish as much of the 
substance of the rule proposed as may be accomplished without statutory 
change. The new paragraphs (j), (k) and (l) in Sec.  32.5 operate as a 
suite of presumptions designed to cover public safety activity 
performed by a law enforcement officer or firefighter as Line of duty 
activity or action under certain circumstances.
     Section 32.5(j) provides that public safety activity 
performed by a law enforcement officer or firefighter is presumed to be 
activity or action that he is obligated or authorized to perform under 
the auspices of the public agency he serves if--(1) the public safety 
activity is not forbidden (by law, rule, regulation, condition of 
employment, etc.); and (2) the officer performs the public safety 
activity either (a) within his jurisdiction (i.e., within the 
jurisdiction where he normally is authorized to act in the line of his 
duty); or (b) within a jurisdiction (not his own) that provides 
authority for law enforcement officers or firefighters from outside the 
jurisdiction to perform the public safety activity he performed.
     Section 32.5(k) establishes that the requirements of Sec.  
32.5(j) generally will be presumed to be satisfied if full line-of-duty 
death or disability benefits have been paid in the ordinary course.
     Section 32.5(l) provides that if the presumption 
established by Sec.  32.5(j) arises under circumstances where the 
public safety activity is performed outside the jurisdiction where the 
law enforcement officer or the firefighter normally is authorized to 
act in the line of his duty, then the law enforcement officer or the 
firefighter shall be deemed to serving that jurisdiction ``in an 
official capacity'' when he performed the public safety activity (which 
an element required under the PSOB Act's definition of ``public safety 
officer'' at 34 U.S.C. 10284(9)). To be eligible as a ``public safety 
officer'' under the Act, a firefighter must be serving ``a public 
agency in an official capacity.'' 34 U.S.C. 10284(9)(A); the statutory 
definition of ``public agency'' includes an ``instrumentality'' of a 
government.
    In PSOB II, OJP proposed a new definition of Volunteer fire 
department to address the status of volunteer fire departments as 
``public agencies'' under the PSOB Act. (See discussion under B.10. 
above.) After further analysis and study, and following somewhat upon 
the suggestion of one commenter on the proposed rule (who recommended 
that the proposed change be accomplished--if at all--through amendment 
of the definition of Instrumentality), OJP has determined that a better 
approach is to create a legal presumption that certain legally licensed 
or -authorized volunteer fire departments satisfy various provisions of 
the definition of Instrumentality.
    PSOB II proposed to make certain amendments to Sec.  32.5, 
including amendments relating to the presumption at 34 U.S.C. 10281(k) 
(affecting heart attack/stroke/vascular rupture cases) (Sec.  32.5(i), 
to general evidentiary rules (Sec. Sec.  32.5(b) and (c); 32.5(k)), and 
to WTC-related health conditions. Although these proposals garnered 
some comments favoring the policy, the proposals also were the object 
of very forceful negative commentary (which included citation to H.R. 
Rep. 112-548 (accompanying the Dale Long Act))--almost entirely of a 
legal nature--opining that the several proposals variously would 
``write[ ] the very meaning of [certain language] out of the PSOB 
statute,'' would ``swallow'' exceptions established in the PSOB Act, 
appeared to involve ``overreach by DOJ to get around statutory language 
in order to pay claims,'' and would produce ``case after case in 
litigation.''
    After further reflection on the comments received, and after close 
consideration of the stern admonition in H.R. Rep. 112-548 to the 
effect that the PSOB Act's ``requirements [are] firmly established in 
the law and therefore [are] to be given full effect, rather than 
minimized, ignored, or interpreted away, judicially or 
administratively,'' H. Rep. No. 112-548 (2012), OJP agrees largely with 
the negative commentary it received. Accordingly--with one partial 
exception involving WTC-related health conditions--the final rule does 
not include the proposed changes to Sec.  32.5. In the final rule, the 
substance of the change proposed to be made to Sec.  32.5 involving 
WTC-related health conditions is being implemented, instead, through a 
direct amendment to the definition of Injury under Sec.  32.3.

E. Section 32.6--Payment and repayment

    OJP proposed to amend this provision to specify how the PSOB 
Program will calculate the offset of PSOB death or disability benefits 
based on the actual net amount of compensation paid to or on behalf of 
a public safety officer under the September 11th VCF program after all 
VCF-mandated offsets have been subtracted. No comments were received on 
the proposal, which is included in the final rule without substantive 
change.

F. Section 32.7--Fees for representative services

    Various changes were proposed to the fee provisions in the current 
regulations to establish the maximum fees that may

[[Page 22374]]

be charged for services performed in connection with a claim, to 
eliminate restrictions on types of fee arrangements, and to establish 
fee amounts that are presumptively reasonable in claims determined at 
the PSOB Office level, at the Hearing Officer level, or at the BJA 
Director level. The agency did not receive comments on the proposed 
rule.
    The final rule provides for a percentage-fee arrangement as an 
option that may be used in appropriate circumstances to determine 
attorneys' fees. That is, claimants may choose the new percentage-fee 
approach in lieu of the traditional fee petition process (entailing 
submission of itemized specifics of fees) that is in place under the 
current rule. Petitions for authorization to receive fees in amounts 
greater than those specified in in the percentage-fee provision (or 
under circumstances not covered by that provision) otherwise will be 
continue to be considered as they are at present under this section of 
the regulations.

G. Sections 32.12 and 32.22--Time for filing a claim.

    In response to the comments on the proposed rule's changes to Sec.  
32.2 Computation of time (see discussion at II.A. above), the final 
rule revises the provisions prescribing when claims for PSOB Program 
death and disability must be filed: For ordinary claims, claimants must 
file a claim before the later of three years from the date of the 
officer's death or injury, or one year from the date of a final public 
agency decision of eligibility to receive or denial of death (or 
disability) benefits based on the officer's service. For claims based 
on an injury resulting from the September 11, 2001, attacks, claimants 
must file such claims before the latter of two years from the effective 
date of this final rule, two years from the date the WTC-related health 
condition upon which the claim is based is added to the List of WTC-
Related Health Conditions, or two years from the date such condition is 
certified by the Administrator of the WTC Health Program as medically 
associated with a WTC-related health condition.
    Much of the proposed rule, and of the public comments, concerned 
circumstances under which OJP may consider a claim abandoned, and what 
to do when a claim cannot be properly processed because evidence is 
lacking (at times through no fault of the claimant), and the mechanics 
of a contemplated ``complete applications'' scheme. Consistent with the 
thrust of the proposed rule (but not its precise terminology and 
mechanics), the final rule provides an optional pre-claim evidence 
collection period mechanism that stops the filing-deadline clock so 
that individuals are given time to gather the basic foundational 
evidence without the looming prospect of a claim's being deemed 
abandoned. Individuals will have the option of filing a ``notice of 
intent to file'', rather than filing a claim directly, in order to 
afford them time to gather the ``foundational evidence'' needed to 
establish a claim. This approach, together with the new, online PSOB 
application system currently in beta-testing, will improve clarity and 
transparency throughout the process regarding the status of filings and 
claims, and avoid delays occasioned by miscommunication and 
misunderstandings regarding claim requirements and status. Throughout 
this period and the claim process period, the PSOB Office will continue 
to assist individuals in obtaining information needed to move a claim 
forward, using its subpoena authority wherever and whenever appropriate 
and necessary.

H. Section 32.14--PSOB Office determination.

    The final rule makes conforming changes largely related to the 
modified claims processing procedures described in B.6, above, and to 
the phrasing in the rest of the rule.

I. Section 32.15--Prerequisite certification.

    The final rule makes conforming changes related to the Dale Long 
Act amendment adding a new category of public safety officer, described 
in B.1, above.

J. Section 32.16--Payment.

    The final rule makes conforming changes related to the Dale Long 
Act amendment related to distribution of benefits under 34 U.S.C. 
10281(a).

K. Section 32.24--PSOB Office determination.

    The final rule makes conforming changes related to the modified 
claims processing procedures described in B.6, above, and to the 
phrasing in the rest of the rule.

L. Section 32.25--Prerequisite certification.

    The final rule makes conforming changes related to the Dale Long 
Act amendment adding a new category of public safety officer, described 
in B.1, above.

M. Section 32.26--Payment.

    The final rule removes and reserves this section to conform to the 
Dale Long Act amendment related to distribution of benefits under 34 
U.S.C. 10281(a).

N. Section 32.32--Time for filing a claim.

    The final rule makes a grammatical correction.

O. Section 32.44--Hearing Officer determination.

    The final rule makes non-substantive, stylistic changes, to conform 
the phrasing to the rest of the rule.

P. Section 32.45--Hearings.

    The final rule adds language that is substantively the same as 
language proposed in PSOB II, relating to who may examine claimants 
during hearings.

Q. Section 32.52--Time for filing Director appeal.

    The final rule makes a grammatical correction.

R. Section 32.53(a)--Review.

    In keeping with the proposed rule, the final rule amends this 
section to allow reconsideration of certain denied claims where the 
public safety officer was WTC responder.

S. Section 32.54--Director determination.

    The final rule makes stylistic, conforming changes related to the 
modified claims processing procedures described in B.6, above, and to 
the phrasing in the rest of the rule.

T. Section 32.55--Judicial Appeal.

    The final rule removes language that unnecessarily repeats the 
substance of language in 34 U.S.C. 10287.

III. Regulatory Requirements

Executive Order 12866 and 13563--Regulatory Planning and Review; 
Executive Order 13771--Reducing Regulation and Controlling Cost

    This rule has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), Principles of Regulation, and in accordance with Executive Order 
13563, ``Improving Regulation and Regulatory Review,'' section 1(b), 
General Principles of Regulation. The Office of Justice Programs has 
determined that this rule is a ``significant regulatory action'' 
(though not an ``economically significant'' action) under section 3(f) 
of the Executive Order 12866, and accordingly this rule has been 
reviewed

[[Page 22375]]

by the Office of Management and Budget (OMB).
    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). As 
explained below, the agency has assessed the costs and benefits of this 
rule as required by Executive Order 12866 and 13563 and has determined 
that the benefits of the rule justify the costs.
    The final rule may result in a de-minimis--approximately one 
percent of BJA's annual outlays for the PSOB Program--increase in 
transfer payments going forward, which BJA estimates at approximately 3 
claims, or $1,032,000 per year.\5\ The rule provisions relating to 9/11 
claims will permit BJA to pay certain claims more quickly, by 
clarifying BJA's authority to apply the WTC Health Program standards, 
but it would be speculative to assume that this would create additional 
transfer payments or that these payments would be attributable to this 
rule (see discussion below). In any event, BJA estimates that its 
current appropriation levels are sufficient to cover the annual costs 
of transfer payments potentially associated with this aspect of the 
rule, which (based on pending cases) BJA estimates to be approximately 
$8.8M in currently pending claims, plus $450,000 in associated 
educational benefits payments. The amount would be significantly less 
on an annual basis going forward because the bulk of 9/11 claims have 
likely already been submitted.
---------------------------------------------------------------------------

    \5\ This estimate is based on the changes related to Line of 
duty injury to cover retaliation for actions taken in the line of 
duty; to Evidence related to out of jurisdiction activity; and to 
the presumption relating to volunteer fire departments and certain 
elements of the definition of Instrumentality. The amount is based 
on the FY17 death benefit amount.
---------------------------------------------------------------------------

    OMB's April 5, 2017, guidance on E.O. 13771 (M-17-21), explains, 
with regard to transfer payments, that--

Federal spending regulatory actions that cause only income transfers 
between taxpayers and program beneficiaries (for example, 
regulations associated with . . . Medicare spending) are considered 
`transfer rules' and are not covered by E.O. 13771. . . . However . 
. . such regulatory actions may impose requirements apart from 
transfers . . . In those cases, the actions would need to be offset 
to the extent they impose more than de minimis costs. Examples of 
ancillary requirements that may require offsets include new 
reporting or recordkeeping requirements.

In accordance with OMB's guidance, BJA has determined that this final 
rule is a transfer rule. Aside from these potential transfer payments, 
the rule reduces the burden on claimants in substantiating certain 
claims under the applicable statutory requirements. The rule provisions 
affecting matters other than the transfer payments are deregulatory 
(i.e., they reduce costs and burdens) by a value estimated to be 
approximately $24,723 per year, which amounts to $210,892 in present 
value over ten years.\6\ This final rule is considered an E.O. 13771 
deregulatory action. Details on the estimated cost savings of this 
proposed rule can be found below. Consistent with the principles above, 
BJA discusses below the costs and benefits of each substantive change 
to the existing rule.
---------------------------------------------------------------------------

    \6\ As set out in more detail below, this figure is based on the 
estimated annual cost savings to the public from changes to the Dale 
Long Act implementing provisions that will reduce the number of 
independent medical reviews required ($24,723); and a variety of 
marginal efficiencies and burden reduction for claimants created by 
certain streamlined provisions and definitions. BJA estimated the 
present day value of these cost savings over ten years using a 
discount rate of 3 percent.
---------------------------------------------------------------------------

A. Section 32.2--Computation of time; filing.
    BJA amends this provision to authorize BJA to require that 
claimants file claims electronically. In October 2017, BJA deployed its 
online filing system, PSOB 2.0, which standardizes submission of 
electronic forms. Since that time, PSOB has required and only received 
electronic submissions. This provisions codifies the requirement that 
claims be submitted electronically. The electronic filing system 
typically saves claimants one hour per form, because the system 
automatically prompts users for missing items, hides irrelevant fields, 
and eliminates form version control problems. PSOB 2.0 allows claimants 
to review the contents of their claim files online and retrieve 
documents as needed from their submissions without the need to call or 
request that BJA copy and send such documents by mail, thus reducing 
printing and mailing costs, and the administrative time BJA staff spend 
handling these issues. The changes do not change the substance of the 
required forms, or create any new procedural or evidentiary 
requirements, and thus impose no new burdens on claimants.
B. Sections 32.3, 32.13, 32.23, and 32.33--Definitions.
1. Implementation of Dale Long Act Amendments Applicable to Certain 
Members of a Rescue Squad or Ambulance Crew
    BJA makes conforming changes to address the Dale Long Act 
provisions that expanded the types of rescue squad and ambulance crew 
members covered under the PSOB Act to include non-public employee 
members of such squads or crews, under certain circumstances. Any 
potential costs for additional payable claims are created by the Dale 
Long Act, which has been in effect and implemented by BJA since 2013, 
and not by the conforming changes made by this rule. The changes will 
marginally reduce burdens on BJA and claimants by making the text of 
the PSOB rule conform to the statute.
2. Implementation of Dale Long Act Amendments Relating to Heart 
Attacks, Strokes, and Vascular Ruptures
    BJA makes conforming and interpretive changes to address the Dale 
Long Act provisions that amend the PSOB Act standards at 34 U.S.C. 
10281(k), for cases involving heart attacks, strokes, or vascular 
ruptures. The PSOB Act, as amended by the Hometown Heroes Survivors' 
Benefits Act of 2003, but prior to the Dale Long Act amendment in 2013, 
contained a presumption allowing payment of death benefits under 
certain circumstances to public safety officers who died of heart 
attacks or strokes, unless the presumption was overcome by ``competent 
medical evidence to the contrary.'' The Dale Long Act, among other 
things, added vascular ruptures to the presumption (in addition to 
heart attacks and strokes), and elaborated on what evidence would 
overcome the presumption--i.e., where competent medical evidence 
establishes either that the heart attack, stroke, or vascular rupture 
was ``unrelated'' to the officer's engagement or participation in a 
qualifying activity; or that the heart attack, stroke, or vascular 
rupture ``was directly and proximately caused by something other than 
the mere presence of cardiovascular-disease risk factors.''
    BJA makes conforming changes to the rule to include vascular 
ruptures, consistent with 34 U.S.C. 10281(k)(3), to define more 
precisely the circumstances under which the statutory presumption 
relating to heart attacks, strokes, and vascular ruptures would be 
overcome. This will create no costs beyond those created by the Dale 
Long Act. In short, BJA defines Competent medical evidence to rely upon 
the existing

[[Page 22376]]

definition of Medical probability, which may be established pursuant to 
a medical assessment based on the preponderance of the available 
evidence. BJA defines the first rebuttal factor, where an officer's 
heart attack, stroke, or vascular rupture is Unrelated to the 
engagement or participation in qualifying activity, in a common-sense 
way: requiring a finding that ``an independent event or occurrence'' 
(e.g., an off-duty officer's accident) was a ``substantial contributing 
factor'' (a term defined in the existing regulation) in bringing the 
heart attack, stroke, or vascular rupture about. BJA defines the second 
rebuttal factor, where Something other than the mere presence of 
cardiovascular disease risk factors caused the heart attack, stroke, or 
vascular rupture, consistent with its current interpretation, to 
require a finding that the heart attack, stroke, or vascular rupture 
was caused by the ingestion of Schedule I drugs, or abuse of Schedule 
II, III, IV, or V drugs.
    These interpretive amendments conform the rule to the statutory 
provision, and impose no costs beyond those additional transfer 
payments created by the statute itself. The rules should reduce the 
number of claims sent to an independent medical review, and the 
associated costs. BJA estimates that these changes will eliminate the 
need for approximately 41 medical reviews each year, saving BJA 
approximately $67,732 annually in medical review costs,\7\ which 
amounts to $577,768 in present costs over a ten-year period, and saving 
claimants (in aggregate) approximately $24,723 annually, which amounts 
to $210,892 in present costs over a ten-year period.\8\
---------------------------------------------------------------------------

    \7\ This estimate is based on an average of 92 relevant claims 
per year that BJA processes, of which, approximately 46 required 
medical review under the previous regulatory interpretation. BJA 
estimates it will need to conduct medical reviews for only 5 of 
those 92 claims under the revised rule, resulting in 41 fewer 
medical reviews per year. Each medical review costs BJA an average 
of $1652 (based on 2009-2015 death benefit data). Present costs 
calculated at a 3% discount rate.
    \8\ This estimate is based on 41 medical reviews, and the 
maximum fees permitted by law, which vary by state, though here BJA 
assumed $.67/page, and an average of 900 pages of medical records in 
claims for PSOB Program death benefits, as determined in a random 
sampling of claims involving medical issues that require a claimant 
to provide such records. See, e.g., Joy Pritts, et al., Privacy and 
Security Solutions for Interoperable Health Information Exchange: 
Report on State Medical Record Access Laws, https://www.healthit.gov/sites/default/files/290-05-0015-state-law-access-report-1.pdf; Table A-5, Overview of State Law: Maximum Fees Doctors 
and Hospitals May Charge Patients for Copies of Medical Records 
https://www.healthit.gov/sites/default/files/appa5-1.pdf (accessed 
June 16, 2016). BJA estimated the present day value of these cost 
savings over ten years using a discount rate of 3 percent.
---------------------------------------------------------------------------

3. Provision Relating to the WTC Health Program and September 11th VCF 
Program
    BJA makes changes to provisions affecting the PSOB payments related 
to the September 11, 2001, attacks.
    First, it provides that OJP will rely on the expertise of the WTC 
Health Program in making a determination as to whether a condition 
resulted from a WTC responder's 9/11 exposures, and thus an Injury 
under the PSOB Program. Currently, 28 CFR 32.5 expressly provides that 
BJA may rely upon a public agency's factual finding (e.g., a 
certification by the WTC Health Program regarding an officer's 
condition, or a VCF eligibility finding) to determine that an officer 
sustained a qualifying injury, or it may evaluate the evidence 
submitted by a claimant to determine whether the injury qualifies. This 
rule expressly provides a third approach (that could be used in the 
absence of a public agency finding regarding that specific officer's 
condition, and in lieu of independently creating standards and 
evaluating whether the officer's condition resulted from 9/11 
exposures) under which BJA could apply the WTC Health Program's 
standards for when a condition is related to a WTC responder's 9/11 
exposures, when determining whether an officer's condition is an injury 
for purposes of the PSOB Program.\9\ This express approach thus would 
reduce costs for BJA and claimants, who would not have to replicate the 
scientific and medical analysis already performed by the WTC Health 
Program. BJA expects this would benefit those 9/11 claimants who will 
not obtain a public agency finding regarding the officer's exposure 
(e.g., a claimant for a deceased officer who never sought a 
certification of eligibility for treatment by the WTC Health Program 
before dying). Attributing these transfer payments to this rule, is 
difficult, however, because some of these claimants may be able to 
substantiate their claims under the current rule, albeit at a greater 
cost and time burden to everyone involved, and some may eventually 
obtain a public agency finding from the VCF or WTC Health Program. 
Estimating the amount of the transfer payments also is difficult 
because PSOB likely will receive additional claims based on 9/11 as 
conditions manifest over time, conditions may be added to the List of 
WTC-Related Health Conditions by the WTC Health Program, and many 
payments are likely to be offset by VCF payments. BJA estimates that 
this provision would affect approximately 29 claims (27 death, 2 
disability) based on WTC-related health conditions that are pending 
with BJA and for which BJA would, under the final rule, independently 
apply the WTC Health Program standards to determine an injury for 
purposes of the PSOB Program. (This is of 158 pending 9/11 exposure 
claims.) This would potentially increase transfer payments by a maximum 
of $8.8M total, plus approximately $450,000 in educational benefits 
associated with those 29 claims. Additional transfer payments would be 
significantly less than this amount on an annual basis going forward 
because the bulk of 9/11 claims have likely already been submitted.\10\ 
Cost savings from this change are difficult to forecast, because it is 
uncertain how claimants would pursue their claims in the absence of the 
final rule, but BJA expects this to save at least several thousand 
dollars in BJA processing costs and claimant costs associated with 
establishing that a condition is related to 9/11.
---------------------------------------------------------------------------

    \9\ See the discussion of the James Zadroga 9/11 Health and 
Compensation Act of 2010, describing the analysis performed by the 
WTC Health Program, at 81 FR 46019, 46020 (PSOB I Notice of Proposed 
Rulemaking).
    \10\ As of July 17, 2017, there were 158 total PSOB death and 
disability claims pending with assertions of injuries based on some 
kind of 9/11-related exposure. Of these, BJA estimates that 
approximately 29 would be determined much sooner if BJA uses the 
authority in the final rule to independently apply the WTC Health 
Program standards, instead of waiting for the claimant to obtain a 
WTC Health Program certification or VCF equivalent or requiring 
additional evidence. Some of those claimants may be able to 
substantiate their claims without the rule change, though only with 
additional documentation, and it is likely that some payments would 
be offset for VCF benefits. For this subset of pending claims based 
on 9/11-related exposure, BJA estimates that if all 29 claims are 
approved, up to 49 additional people may qualify for educational 
assistance at some point in the future. BJA estimated the annual 
educational assistance benefit increase using the FY 2017 maximum 
monthly payment rate of $1024 per month based on those 49 additional 
people each claiming 9 months of educational assistance.
---------------------------------------------------------------------------

    Second, it specifies how offset of PSOB benefits by September 11th 
VCF benefits (a requirement of the Dale Long Act) will be calculated. 
Offset is required by statute, which the rule merely implements--thus, 
it creates no new costs.
    Third, it clarifies that PSOB claimants whose payments are offset 
are still eligible for PSOB educational assistance. This change 
reflects BJA's current practice and the statutory framework; i.e., that 
there is no required offset of educational assistance under the statute 
(as amended by Dale Long), thus it makes the rule more transparent and 
creates no new costs.
    Fourth, it provides additional time for 9/11 exposure claimants to 
file their

[[Page 22377]]

claims (see Time for filing a claim provisions at 32.12 and 32.22), and 
allows reconsideration of certain denied claims for WTC responders (see 
32.53(a)). These equitable procedural rule changes prevent unfairness 
to claimants whose claims would be approved under the WTC Health 
Program standards, or who would have filed had they been able to take 
advantage of those standards. This may cause BJA to make some transfer 
payments that it would not have done under the current rule, but BJA 
does not expect this to alter its overall cost estimate for 9/11 claims 
that take advantage of BJA's reliance upon the WTC Health Program 
standards (see above).
4. Trainees
    BJA makes express the coverage of certain public safety officer 
trainees by adding new terms, Candidate officer and Candidate-officer 
training, and amending the terms Firefighter, Involvement, and Member 
of a rescue squad or ambulance crew to include the new terms. This 
change will not impose any new costs, but it will marginally reduce the 
burden for program staff and claimants in understanding the conditions 
under which trainees are covered.
5. Child of a Public Safety Officer
    BJA makes a conforming change to this definition related to the 
Dale Long Act. It creates no new costs.
6. Provisions Related to Claims Processing
    This rule creates a pre-claim process by which claimants may stay 
the claim filing deadline while they continue to gather necessary 
evidence, and BJA may more expeditiously issue a final determination on 
claims that patently lack necessary evidence. BJA anticipates that this 
procedure will allow it to better allocate resources to reviewing 
completed files, and will clarify for reporting purposes which files 
are ``ripe'' and should be counted as claims pending with BJA versus 
those where the claimant is still gathering evidence. BJA expects that 
this will preempt the need for hearing officer proceedings in several 
claims each year, and marginally reduce the burden on program staff. 
Hearing officer proceedings can cost several thousand dollars (or more 
when claimant attorneys' fees are factored in), thus BJA expects this 
provision to save several thousand dollars each year for BJA and 
claimants.
7. Gross Negligence
    BJA amends the definition of Gross negligence to make patent in the 
rule that actions that otherwise would be gross negligence, and thus a 
statutory bar to payment, are not considered gross negligence when 
reasonably excused or objectively justified. BJA expects the revised 
provision will create no new costs, but will be easier for program 
staff and claimants to understand and apply, thus marginally reducing 
the burden associated with claims involving actions potentially 
implicating this disentitling factor.
8. Authorized Commuting Clarification
    BJA amends the definition of Authorized commuting to clarify that 
return travel by a public safety officer from certain activities 
constitutes ``authorized commuting'' and, therefore, injuries sustained 
in the course of such travel are compensable as line of duty injuries. 
This clarification merely makes patent BJA's existing interpretation 
related to injuries sustained by public safety officers while 
commuting, thus imposes no new costs. It will, however, marginally 
reduce the burden on claimants by clarifying an aspect of authorized 
commuting that may have caused confusion among claimants and program 
staff, thus facilitating the collection of relevant documentation, 
reducing delays associated with resolving factual questions, and 
preempting potential litigation.
9. Line of Duty Injury--Retaliation for Action in the Line of Duty
    BJA amends the term Line of duty injury so as expressly to include 
those injuries sustained as a result of retaliation for actions taken 
in the line of duty by an officer. This adds to the existing 
regulations, which provide that a Line of duty injury includes an 
injury resulting from the injured party's status as a public safety 
officer. Very few PSOB claims received to date have involved 
retaliation. Accordingly, BJA anticipates--at most (perhaps one claim 
per year, if that)--a negligible increase in transfer payments as a 
result of this provision.
10. Volunteer Fire Departments as Instrumentalities
    BJA adds a legal presumption that volunteer fire departments 
meeting specified criteria satisfy certain elements of the definition 
of Instrumentality of a public agency. BJA anticipates that this change 
may marginally (by perhaps one claim per year) increase the transfer 
payments under the program. The change would marginally reduce the 
burden for program staff in determining, and of claimants in showing, 
that a volunteer fire department qualifies under the program.
11. Spouse
    BJA amends the definition of Spouse to update the rule to reflect 
current jurisprudence. This does not create any new costs.
C. Section 32.4--Terms; construction; severability.
    BJA makes a technical change conforming the rule to the PSOB Act. 
This change creates no new costs.
D. Section 32.5--Evidence.
    BJA makes express the circumstances under which officers engaging 
in public safety activity outside of their jurisdictions would be 
considered to be acting in the line of duty, by adding a series of 
presumptions in the Evidence provision at 32.5. BJA anticipates that 
this change may marginally (by an estimated one claim per year) 
increase the transfer payments under the program, because it may make 
it easier for officers injured outside of their jurisdiction to 
establish that they were engaging in a line of duty activity or action 
when injured. The change will marginally reduce the burden for program 
staff and claimants of understanding the circumstances under which such 
officers are covered.
    BJA makes a conforming change to Evidence at 32.5(b) related to the 
PSOB Improvement Act of 2017, to ensure that those reading the rule do 
not overlook a relevant statutory provision. The change creates no new 
costs, but may marginally reduce burdens by preventing confusion.
E. Section 32.6--Payment and repayment.
    BJA amends this provision to implement offset of PSOB death and 
disability benefits by September 11th VCF program compensation. The 
amendments reflect BJA's current practice and create no new costs.
F. Section 32.7--Fees for representative services.
    BJA amends this section to provide a percentage-fee option, which 
offers a simplified and more transparent way for attorneys to determine 
how much they can charge for representing PSOB claimants in their PSOB 
claims, and eliminates the need for BJA to review fee petitions in such 
cases. BJA anticipates the change will not result in increased payment 
of attorneys' fees, but will reduce BJA's administrative burden by 2.5 
hours of GS-14 time for

[[Page 22378]]

each fee petition, saving an estimated $1391 worth of staff time 
annually.
G. Sections 32.12 and 32.22--Time for filing a claim; 32.53(a)--Review.
    BJA makes certain changes to filing deadlines for 9/11 claimants--
see costs-benefit discussion above in paragraph III.B.3.
H. Non-Substantive Changes To Conform the Rule to the Statute or Other 
Provisions of the Rule, or To Make Technical Corrections.
    BJA makes conforming or technical changes to sections 32.14, 32.15, 
32.16, 32.24, 32.25, 32.26, 32.32, 32.44, 32.45, 32.52, 32.54, and 
32.55, and removes the definitions of Dependent, Eligible dependent, 
and Tax year. These changes do not create costs beyond those addressed 
above.

Executive Order 13132--Federalism

    This rule would not have substantial direct effects on the States, 
on the relationship between the federal government and the States, or 
on distribution of power and responsibilities among the various levels 
of government. The PSOB program statutes provide benefits to 
individuals and do not impose any special or unique requirements on 
States or localities. Therefore, in accordance with Executive Order No. 
13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988--Civil Justice Reform

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

Regulatory Flexibility Act

    This rule will not have a significant economic impact on a 
substantial number of small entities for the following reasons: This 
rule addresses federal agency procedures; furthermore, this rule makes 
amendments to clarify existing regulations and agency practice 
concerning public safety officers' death, disability, and education 
benefits and does nothing to increase the financial burden on any small 
entities. Therefore, an analysis of the impact of this rule on such 
entities is not required under the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.).

Paperwork Reduction Act of 1995

    The PRA requires certain actions before an agency can adopt or 
revise a collection of information, including publishing a summary of 
the collection of information and a brief description of the need for 
and proposed use of the information. 44 U.S.C. 3507.
    This rule would not impose any new reporting or recordkeeping 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.) and its implementing regulations at 5 CFR part 1320. OMB has 
approved the collection of information for the PSOB Program under the 
following: Report of Public Safety Officers' Permanent and Total 
Disability, OMB Control No. 1121-0166, approved July 27, 2016; Report 
of Public Safety Officers' Death, OMB Control No. 1121-0025, approved 
July 27, 2016; Claim for Death Benefits, OMB Control No. 1121-0024, 
approved August 18, 2016. OJP will comply with the PRA by revising its 
collection of information to reflect modified reporting requirements 
when it implements electronic filing as provided in the newly added 28 
CFR 32.2(g).

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. The PSOB program 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.

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 amended as 
follows:

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

0
1. The authority citation for 28 CFR Part 32 is revised to read as 
follows:

    Authority:  34 U.S.C. ch. 101, subch. XI; 34 U.S.C. 10110, 
10221(a), 10225, 10226, 10251(a), 10261(a)(4) & (b), 10272, 110286, 
10287, 10288; Pub. L. 90 351, title IX, sec. 1601, 82 Stat. 239; 
Pub. L. 94 430, secs. 4 through 6, 90 Stat. 1348; Pub. L. 106-113, 
div. B, sec. 1000(a)(1) [title I, sec. 108(a)], 113 Stat. 1535, 
1501A-20, as amended by Pub. L. 107-56, title VI, sec. 614, 115 
Stat. 370, and codified (as amended) as a statutory note to 34 
U.S.C. 10110; Pub. L. 106-553, sec. 1(a)(2) [title I, sec. 108], 114 
Stat. 2762, 2762A-6; Pub. L. 107 37, secs. 1 and 2, 115 Stat. 219.


0
2. Amend Sec.  32.2 as follows:
0
a. In paragraph (b), remove ``A filing'' and add in its place ``Except 
as provided in paragraph (g) of this section, a filing''.
0
b. In paragraph (c) introductory text, remove ``Notice'' and add in its 
place ``Except as provided in paragraph (g) of this section, notice''.
0
c. In paragraph (c)(1), add ``or'' after the semicolon.
0
d. In paragraph (c)(2), remove ``; or'' and add in its place a period.
0
e. Remove paragraph (c)(3).
0
f. In paragraphs (e) and (f), remove ``42 U.S.C. 3796(a)'' and add in 
its place ``34 U.S.C. 10281(a)''.
0
g. In paragraphs (e) and (f), remove ``42 U.S.C. 3796c-1'' and add in 
its place ``34 U.S.C. 10286''.
0
h. Add paragraph (g).
    The addition reads as follows:


Sec.  32.2   Computation of time; filing.

* * * * *
    (g) The Director may prescribe that--
    (1) Any filing be filed using electronic means, in which case it 
shall be deemed filed when it is submitted electronically; and
    (2) Any notice, within the meaning of paragraph (c) of this 
section, be served by the PSOB Office upon an individual by electronic 
means (such as by telefacsimile or electronic mail addressed to the 
individual (or to his representative) at his (or his representative's) 
last address known to such Office), in which case it shall be deemed 
served on the day that such notice is sent.

0
3. Amend Sec.  32.3 as follows:
0
a. Revise the definition of Act.
0
b. Revise the definition of Authorized commuting.
0
c. Add definitions of Candidate-officer; Candidate-officer training; 
and Certification described in the Act, at 34 U.S.C. 10286 or Public 
Law 107-37 in alphabetical order.

[[Page 22379]]

0
d. Remove the definition of Certification described in the Act, at 42 
U.S.C. 3796c-1 or Public Law 107-37.
0
e. In the definition of Chaplain, remove ``42 U.S.C. 3796b(2)'' and add 
in its place ``34 U.S.C. 10284(2)''.
0
f. Revise paragraph (1) of the definition of Child of a public safety 
officer.
0
g. Add definitions of Claim and Claimant in alphabetical order.
0
h. Remove the definition of Consequences of an injury that permanently 
prevent an individual from performing any gainful work.
0
i. In the definition of Department or agency, remove ``42 U.S.C. 
3796b(8)'' and add in its place ``34 U.S.C. 10284(8)''.
0
j. In paragraph (2) of the definition of Department or agency, remove 
``42 U.S.C. 3796b(9)(B)'' and add in its place ``34 U.S.C. 
10284(9)(B)''.
0
k. In the definition of Determination, remove ``, the determination 
described in the Act, at 42 U.S.C. 3796(c), or any recommendation under 
Sec.  32.54(c)(3)''.
0
l. In the definitions of Direct and proximate cause and Direct and 
proximate result of an injury, remove ``42 U.S.C. 3796(k)'' each place 
it appears and add in its place ``34 U.S.C. 10281(k)''.
0
m. In the definitions of Disaster relief activity and Disaster relief 
worker, remove ``42 U.S.C. 3796b(9)(B)'' each place it appears and add 
in its place ``34 U.S.C. 10284(9)(B)''.
0
n. In the definition of Divorce, remove ``divorce from the'' and add in 
its place ``(for civil purposes) dissolution of the''.
0
o. Revise the definition of Drugs or other substances.
0
p. In paragraph (1) of the definition of Eligible payee, remove ``42 
U.S.C. 3796(a)'' and add in its place ``34 U.S.C. 10281(a)''.
0
q. In paragraph (2) of the definition of Eligible payee, remove ``42 
U.S.C. 3796(b)'' and add in its place ``34 U.S.C. 10281(b)''.
0
r. In paragraph (1) of the definition of Emergency medical services, 
remove ``Provision of first-response'' and add in its place ``First-
response''.
0
s. In the introductory text of the definition of Employed by a public 
agency, remove ``42 U.S.C. 3796c-1'' and add in its place ``34 U.S.C. 
10286''.
0
t. In paragraph (2)(i) of the definition of Employed by a public 
agency, remove ``of any kind but disaster relief workers); or'' and add 
in its place ``described in the Act, at 34 U.S.C. 10284(9)(A));''.
0
u. In paragraph (2)(ii) of the definition of Employed by a public 
agency, remove ``42 U.S.C. 3796b(9)(B) or (C) (with respect to disaster 
relief workers)'' and add in its place ``34 U.S.C. 10284(9)(B) or (C) 
(with respect to disaster relief workers); or''.
0
v. In the definition of Employed by a public agency, add paragraph 
(2)(iii).
0
w. In paragraph (1) of the definition of Firefighter, add ``(or is 
receiving candidate-officer training)'' after ``trained''.
0
x. In the introductory text of paragraph (2) of the definition of 
Firefighter, remove ``authority and'' and add in its place ``authority 
or''.
0
y. In paragraph (2)(i) of the definition of Firefighter, add ``(or 
candidate-officer)'' after ``employee''.
0
z. In paragraph (2)(i) of the definition of Firefighter, remove ``42 
U.S.C. 3796b(4)'' and add in its place ``34 U.S.C. 10284(4)''.
0
aa. Add a definition of Foundational evidence as to status or injury in 
alphabetical order.
0
bb. In the introductory text of the definition of Gross negligence, 
remove ``practice--'' and add in its place ``practice (which departure 
is without reasonable excuse and is objectively unjustified)--''.
0
cc. In the definition of Injury, remove ``radiation, virii, or 
bacteria, but'' and add in its place ``radiation, virus, or bacteria, 
and includes (with respect to a WTC responder) a WTC-related health 
condition, but''.
0
dd. In the introductory text of the definition of Injury date, remove 
``42 U.S.C. 3796(k) (where, for purposes of determining beneficiaries 
under the Act, at 42 U.S.C. 3796(a), it generally means the time of the 
heart attack or stroke referred to in the Act, at 42 U.S.C. 
3796(k)(2)), injury'' and add in its place ``34 U.S.C. 10281(k) (where, 
for purposes of determining beneficiaries under the Act, at 34 U.S.C. 
10281(a), it generally means the time of the engagement or 
participation referred to in the Act, at 34 U.S.C. 10281(k)(1)), 
injury''.
0
ee. In the introductory text of the definition of Instrumentality, 
remove ``except that no entity shall be considered an instrumentality 
within the meaning of the Act, at 42 U.S.C. 3796b(8), or'' and add in 
its place ``except that, subject to Sec.  32.5(m), no entity shall be 
considered an instrumentality within the meaning of the Act, at 34 
U.S.C. 10284(8), or''.
0
ff. Add a definition of Intention-notice filer in alphabetical order.
0
gg. In paragraph (1)(i)(B) of the definition of Intentional misconduct, 
remove ``the public agency in which he serves'' and add in its place 
``his public safety agency''.
0
hh. In the definition of Involvement, remove ``officer of a public 
agency and, in that capacity, has legal authority and'' and add in its 
place ``officer (including a candidate-officer) of a public agency and, 
in that capacity, has legal authority or''.
0
ii. Revise the introductory text of the definition of Line of duty 
activity or action.
0
jj. In the introductory text of paragraph (1) of the definition of Line 
of duty activity or action, remove ``officer, a firefighter, or a 
member of a rescue squad or ambulance crew--'' and add in its place 
``officer or a firefighter--''.
0
kk. Revise paragraph (1)(i) of the definition of Line of duty activity 
or action.
0
ll. Revise paragraph (1)(ii) of the definition of Line of duty activity 
or action.
0
mm. In paragraph (2) of the definition of Line of duty activity or 
action, remove ``agency he serves (or the relevant government), being 
described in the Act, at 42 U.S.C. 3796b(9)(B)'' and add in its place 
``public agency in which he is an employee (or the relevant 
government), being described in the Act, at 34 U.S.C. 10284(9)(B)''.
0
nn. In paragraph (2) and paragraph (3) introductory text of the 
definition of Line of duty activity or action, remove ``42 U.S.C. 
3796a(1), and not being'' each place it appears and add in its place 
``34 U.S.C. 10282(a), and not being commuting or''.
0
oo. In the definition of Line of duty activity or action, add paragraph 
(4).
0
pp. Revise paragraph (2) of the definition of Line of duty injury.
0
qq. Add a definition of Notice of intention to file a claim in 
alphabetical order.
0
rr. In the definition of Official capacity, remove ``An'' and add in 
its place ``Subject to Sec.  32.5(l), an''.
0
ss. Remove the definition of Official training program of a public 
safety officer's public agency.
0
tt. Add a definition of Official training program of a public safety 
officer's public safety agency in alphabetical order.
0
uu. Add a definition of Officially recognized or designated employee 
member of a rescue squad or ambulance crew in alphabetical order.
0
vv. In the definition of Officially recognized or designated member of 
a department or agency, remove ``42 U.S.C. 3796b(8)'' and add in its 
place ``34 U.S.C. 10284(8)''.
0
ww. Remove the definition of Officially recognized or designated public 
employee member of a squad or crew.
0
xx. Add a definition of Officially recognized or designated volunteer 
member of a rescue squad or ambulance crew in alphabetical order.

[[Page 22380]]

0
yy. In the definition of Public employee, remove ``42 U.S.C. 3796b(8)'' 
each place it appears and add in its place ``34 U.S.C. 10284(8)''.
0
zz. Remove the definition of Public employee member of a squad or crew.
0
aaa. Add a definition of Public safety agency in alphabetical order.
0
bbb. In the introductory text of the definition of Qualified 
beneficiary, remove ``42 U.S.C. 3796c-1'' and add in its place ``34 
U.S.C. 10286''.
0
ccc. In paragraph (1)(i) of the definition of Qualified beneficiary, 
remove ``42 U.S.C. 3796(a)'' and add in its place ``34 U.S.C. 
10281(a)''.
0
ddd. In the introductory text of the definition of Rescue squad or 
ambulance crew, add ``(including candidate-officers)'' after 
``members''.
0
eee. In paragraph (1) of the definition of Rescue squad or ambulance 
crew, add ``(or are receiving candidate-officer training)'' after 
``trained''.
0
fff. Add a definition of September 11, 2001, attacks in alphabetical 
order.
0
ggg. Revise the definition of Spouse.
0
hhh. In the definition of Stroke, remove ``cerebral vascular'' and add 
in its place ``cerebrovascular''.
0
iii. In the definition of Student, remove ``42 U.S.C. 3796b(3)(ii)'' 
and add in its place ``34 U.S.C. 10284(3)(ii)''.
0
jjj. In the introductory text of the definition of Substantial 
contributing factor, remove ``, or disability,'' and add in its place 
``, disability, heart attack, stroke, or vascular rupture,''.
0
kkk. Add a definition of Supporting-evidence collection period in 
alphabetical order.
0
lll. In the introductory text of the definition of Terrorist attack, 
remove ``42 U.S.C. 3796c-1(a)'' and add in its place ``34 U.S.C. 
10286(a)''.
0
mmm. Remove the definition of Voluntary intoxication at the time of 
death or catastrophic injury.
0
nnn. Add definitions of Voluntary intoxication at the time of fatal or 
catastrophic injury; WTC-related health condition; and WTC responder in 
alphabetical order.
    The additions and revisions read as follows:


Sec.  32.3  Definitions.

    Act means the Public Safety Officers' Benefits Act of 1976 
(generally codified at 34 U.S.C. 10281, et seq.; part L of title I of 
the Omnibus Crime Control and Safe Streets Act of 1968) (including 
(uncodified) sections 4 through 6 thereof (payment in advance of 
appropriations, rule of construction and severability, and effective 
date and applicability)), as applicable (cf. Sec.  32.4(d)) according 
to its effective date and those of its various amendments (e.g., Sep. 
29, 1976 (deaths of State and local law enforcement officers and 
firefighters); Oct 3, 1996 (educational assistance (federal law 
enforcement officer disabled)); Nov. 14, 1998 (educational assistance 
(officer (other than federal law enforcement officer) disabled)); Oct. 
30, 2000 (disaster relief workers); Sep. 11, 2001 (chaplains and 
insurance beneficiaries); Dec. 15, 2003 (certain heart attacks and 
strokes); Apr. 5, 2006 (designated beneficiaries); June 1, 2009 
(certain members of rescue squads or ambulance crews); Jan. 2, 2013 
(designated beneficiaries; vascular ruptures); and June 2, 2017 
(certain administrative changes)); and also includes Public Law 107-37 
and section 611 of the USA PATRIOT Act (both of which relate to payment 
of benefits, described under subpart 1 of such part L, in connection, 
respectively, with the terrorist attacks of Sept. 11, 2001, or with 
such terrorist attacks as may occur after Oct. 26, 2001), as well as 
the proviso under the Public Safety Officers Benefits heading in title 
II of division B of section 6 of Public Law 110-161.
* * * * *
    Authorized commuting means travel (not being described in the Act, 
at 34 U.S.C. 10282, and not being a frolic or detour) by a public 
safety officer to and from work (at a situs (for the performance of 
line of duty activity or action) authorized or required by his public 
safety agency)--
    (1) In the course of actually responding (as authorized)--
    (i) Directly to a fire, rescue, or police emergency; or
    (ii) To a particular and extraordinary request (by such public 
safety agency) for that specific officer to perform public safety 
activity (including emergency response activity the agency is 
authorized to perform), within his line of duty; or
    (2) Under circumstances not described in paragraph (1) of this 
definition--
    (i) While using a vehicle provided by such agency, pursuant to a 
requirement or authorization by such agency that he use the same for 
travel to and from work; or
    (ii) While using a vehicle not provided by such agency, pursuant to 
a requirement by such agency that he use the same for work.
* * * * *
    Candidate-officer means an individual who is officially enrolled or 
-admitted, as a cadet or trainee, in candidate-officer training.
    Candidate-officer training means a formal and officially recognized 
program of instruction or of training (e.g., a police or fire academy) 
that is specifically intended to result, directly or immediately upon 
completion, in--
    (1) Commissioning of such individual as a law enforcement officer;
    (2) Conferral upon such individual of official authority to engage 
in fire suppression (as an officer or employee of a public fire 
department or as an officially recognized or -designated member of a 
legally organized volunteer fire department); or
    (3) The granting to such individual of official authorization or -
license to engage in rescue activity, or in the provision of emergency 
medical services, as a member of a rescue squad or ambulance crew that 
is (or is part of) the agency or entity sponsoring the individual's 
enrollment or admission
* * * * *
    Certification described in the Act, at 34 U.S.C. 10286 or Public 
Law 107-37 means a certification, acknowledging all the matter 
specified in Sec.  32.5(f)(1) and (2)--
    (1) In which the fact (or facts) asserted is the matter specified 
in Sec.  32.5(f)(3);
    (2) That expressly indicates that all of the terms used in making 
the assertion described in paragraph (1) of this definition (or used in 
connection with such assertion) are within the meaning of the Act, at 
34 U.S.C. 10286 or Public Law 107-37, and of this part; and
    (3) That otherwise satisfies the provisions of the Act, at 34 
U.S.C. 10286 or Public Law 107-37, and of this part.
* * * * *
    Child of a public safety officer means an individual--
    (1) Who meets the definition provided in the Act, at 34 U.S.C. 
10284(3); and
* * * * *
    Claim means a request (in such form, and containing such 
information, as the Director may require from time to time) for payment 
of benefits under this part, where the individual seeking payment has 
affirmatively requested that the PSOB Office proceed to determination 
on the basis of the supporting evidence filed by or on behalf of the 
individual (and any associated legal arguments so filed) at or before 
the time of that affirmative request: Provided, That nothing in this 
definition shall be understood to preclude any PSOB determining 
official from (at any time) obtaining or considering other evidence in 
connection with a determination of the claim.
    Claimant means an individual who has filed a claim on his own 
behalf or on whose behalf a claim has been filed.
* * * * *
    Drugs or other substances means--
    (1) Controlled substances within the meaning of the drug control 
and

[[Page 22381]]

enforcement laws, at 21 U.S.C. 802(6), including any active metabolite 
(i.e., any metabolite whose introduction into (or presence otherwise 
in) the human body, ordinarily or objectively can result in a 
disturbance of mental or physical faculties) of any such controlled 
substance; or
    (2) Any physical matter (other than alcohol, or anything described 
in paragraph (1) of this definition) whose introduction into (or 
presence otherwise in) the human body, ordinarily or objectively can 
result in a disturbance of mental or physical faculties.
* * * * *
    Employed by a public agency
* * * * *
    (2) * * *
    (iii) Engaging in activity (or in the provision of services) 
described in the Act, at 34 U.S.C. 10284(9)(D), under the authority (or 
by the license) of a public agency (with respect to rescue squad or 
ambulance crew members).
* * * * *
    Foundational evidence as to status and injury means supporting 
evidence (filed by a claimant at or before the time his claim is filed) 
that constitutes the basis for his belief or assertion that--
    (1) The individual upon whose injury the claim is predicated--
    (i) Was a public safety officer as of the injury date; and
    (ii) As the direct and proximate result of a personal injury 
sustained in the line of duty, either--
    (A) Died (with respect to a claim under subpart B of this part); or
    (B) Became permanently and totally disabled (with respect to a 
claim under subpart C of this part); and
    (2) With respect to a claim under subpart B of this part, the 
claimant is an eligible payee.
* * * * *
    Intention-notice filer means an individual--
    (1) Who believes that he may be an eligible payee;
    (2) Who has filed a notice of intention to file a claim; and
    (3) Who has no claim pending.
* * * * *
    Line of duty activity or action--Subject to Sec.  32.5(j) and (k), 
activity or an action is performed in the line of duty, in the case of 
a public safety officer who is (as of the injury date)--
    (1) * * *
    (i) Whose primary function (as applicable) is public safety 
activity, only if, not being described in the Act, at 34 U.S.C. 
10282(a), and not being commuting or a frolic or detour--
    (A) It is activity or an action that he is obligated or authorized 
by statute, rule, regulation, condition of employment or service, 
official mutual-aid agreement, or other law, to perform (including any 
social, ceremonial, or athletic functions (or any official training 
programs of his public agency) to which he is assigned, or for which he 
is compensated), under the auspices of the public agency he serves; and
    (B) Such agency (or the relevant government) legally recognizes 
that activity or action to have been so obligated or authorized at the 
time performed (or, at a minimum, does not deny (or has not denied) it 
to have been such); or
    (ii) Whose primary function is not public safety activity, only if, 
not being described in the Act, at 34 U.S.C. 10282(a), and not being 
commuting or a frolic or detour--
    (A) It is activity or an action that he is obligated or authorized 
by statute, rule, regulation, condition of employment or service, 
official mutual-aid agreement, or other law, to perform (including any 
social, ceremonial, or athletic functions (or any official training 
programs of his public agency) to which he is assigned, or for which he 
is compensated), under the auspices of the public agency he serves;
    (B) It is performed (as applicable) in the course of public safety 
activity (including emergency response activity the agency is 
authorized to perform), or taking part (as a trainer or trainee) in an 
official training program of his public agency for such activity, and 
such agency (or the relevant government) legally recognizes it to have 
been such at the time performed (or, at a minimum, does not deny (or 
has not denied) it to have been such); and
    (C) Such agency (or the relevant government) legally recognizes 
(or, at a minimum, does not deny (or has not denied) that activity or 
action to have been--
    (1) Obligated or authorized (as described in paragraph (1)(ii)(A) 
of this definition) at the time performed; and
    (2) Performed as described in paragraph (1)(ii)(B) of this 
definition;
* * * * *
    (4) A member of a rescue squad or ambulance crew, only if, not 
being described in the Act, at 34 U.S.C. 10282(a), and not being 
commuting or a frolic or detour, it is performed in the course of 
rescue activity (or of the provision of emergency medical services) 
that he is authorized or licensed, by law and by his public safety 
agency, to engage in (or provide) as described in the Act, at 34 U.S.C. 
10284(9)(D), and such agency (and the relevant government) legally 
recognizes it to have been such at the time performed (or, at a 
minimum, does not deny (or has not denied) it to have been such).
* * * * *
    Line of duty injury
* * * * *
    (2) In connection with any claim in which the injury is not 
sustained as described in paragraph (1) of this definition:
    (i) The injured party's status as a public safety officer was a 
substantial contributing factor in the injury; and
    (ii) Where the injury is brought about by the hostile action of an 
individual--
    (A) The individual knew of the injured party's status as a public 
safety officer; and
    (B) Nothing else motivated the individual's taking of his hostile 
action to so great a degree as either of the following did:
    (1) The injured party's status as a public safety officer; or
    (2) Retaliation for line of duty activity or a line of duty action 
performed by a public safety officer (including the injured party).
* * * * *
    Notice of intention to file a claim--Nothing shall be understood to 
be a notice of intention to file a claim unless it names the individual 
upon whose injury such a claim would be predicated and otherwise is in 
such form, and contains such other information, as the Director may 
require from time to time therefor.
* * * * *
    Official training program of a public safety officer's public 
safety agency means a program--
    (1) That is officially sponsored, -conducted, or -authorized by his 
public safety agency; and
    (2) Whose purpose is to train public safety officers of his kind in 
(or to improve their skills in), specific activity or actions 
encompassed within their respective lines of duty.
    Officially recognized or designated employee member of a rescue 
squad or ambulance crew means an employee member of a rescue squad or 
ambulance crew (described in the Act, at 34 U.S.C. 10284(7)) who is 
officially recognized (or officially designated) as such an employee 
member, by such squad or crew.
    Officially recognized or designated volunteer member of a rescue 
squad or ambulance crew means a volunteer member of a rescue squad or 
ambulance crew (described in the Act, at 34 U.S.C. 10284(7)) who is 
officially recognized (or officially designated) as such a

[[Page 22382]]

volunteer member, by such squad or crew.
* * * * *
    Public safety agency means--
    (1) A public agency--
    (i) That an individual described in the Act, at 34 U.S.C. 
10284(9)(A), serves in an official capacity; or
    (ii) For which an employee described in the Act, at 34 U.S.C. 
10284(9)(B) or (C) performs official duties; or
    (2) An agency or entity under whose authority (or by whose license) 
a member of a rescue squad or ambulance crew engages in activity (or in 
the provision of services) described in the Act, at 34 U.S.C. 
10284(9)(D).
* * * * *
    September 11, 2001, attacks means September 11, 2001, terrorist 
attacks, as defined (as of January 17, 2017) at 42 CFR 88.1.
    Spouse means an individual with whom another individual lawfully 
entered into marriage under the law of the jurisdiction in which it was 
entered into, and includes a spouse living apart from the other 
individual, other than pursuant to divorce, except that--
    (1) In connection with a claim, the term does not include anyone 
upon whose injury the claim is predicated; and
    (2) Notwithstanding any other provision of law--
    (i) For an individual purporting to be a spouse on the basis of a 
common-law marriage (or a putative marriage), or on any other basis, 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 
individual; and
    (ii) In deciding who may be the spouse of a public safety officer--
    (A) The relevant jurisdiction of domicile is the officer's (as of 
the injury date); and
    (B) With respect to a claim under subpart B of this part, the 
relevant date is that of the officer's death.
* * * * *
    Supporting-evidence collection period means the period--
    (1) That begins upon the filing of a notice of intention to file a 
claim, and ends upon the earlier of--
    (i) One year thereafter (unless, for good cause shown, the Director 
extends the period); or
    (ii) The date on which such claim is filed; and
    (2) During which an intention-notice filer may collect and assemble 
supporting evidence for his intended claim.
* * * * *
    Voluntary intoxication at the time of fatal or catastrophic injury 
means the following, as shown by any commonly-accepted tissue, -fluid, 
or -breath test or by other competent evidence:
    (1) With respect to alcohol,
    (i) In any claim arising from a public safety officer's death in 
which the death was simultaneous (or practically simultaneous) with the 
injury, it means intoxication as defined in the Act, at 34 U.S.C. 
10284(5), unless convincing evidence demonstrates that the officer did 
not introduce the alcohol into his body intentionally; and
    (ii) In any claim not described in paragraph (1)(i) of this 
definition, unless convincing evidence demonstrates that the officer 
did not introduce the alcohol into his body intentionally, it means 
intoxication--
    (A) As defined in the Act, at 34 U.S.C. 10284(5), mutatis mutandis 
(i.e., with ``post-mortem'' (each place it occurs) and ``death'' being 
substituted, respectively, by ``post-injury'' and ``injury''); and
    (B) As of the injury date; and
    (2) With respect to drugs or other substances, it means 
intoxication as defined in the Act, at 34 U.S.C. 10284(5), as evidenced 
by the presence (as of the injury date) in the body of the public 
safety officer--
    (i) Of any of the following, unless convincing evidence 
demonstrates that the introduction of the controlled substance into the 
body was not a culpable act of the officer's under the criminal laws:
    (A) Any controlled substance included on Schedule I of the drug 
control and enforcement laws (see 21 U.S.C. 812(a));
    (B) 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 no therapeutic range or maximum 
recommended dosage;
    (C) 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, at levels above or in excess of such range or 
dosage; or
    (D) Any active metabolite of any controlled substance within the 
meaning of the drug control and enforcement laws, at 21 U.S.C. 802(6), 
which metabolite is not itself such a controlled substance;
    (ii) Of any drug or other substance (other than one present as 
described in paragraph (2)(i) of this definition), unless convincing 
evidence demonstrates that--
    (A) The introduction of the drug or other substance into the body 
was not a culpable act of the officer's under the criminal laws; and
    (B) The officer was not acting in an intoxicated manner immediately 
prior to the injury date.
    WTC-related health condition means--
    (1) A WTC-related physical health condition determined by the 
September 11th Victim Compensation Fund, for the specific WTC 
responder, to meet the definition at section 104.2(i) of this title (as 
in effect on January 17, 2017);
    (2) A WTC-related health condition (other than a mental health 
condition) that the WTC Health Program has certified, for the specific 
WTC responder, under (as applicable) 42 U.S.C. 300mm-22(b)(1)(B)(ii) or 
42 U.S.C. 300mm-22(b)(2)(A)(ii); or
    (3) An illness or health condition, as defined in (and determined 
pursuant to) 42 U.S.C. 300mm-22(a)(1)(A)(i), that is a WTC-related 
physical health condition, as defined at section 104.2(i) of this title 
(as in effect on January 17, 2017).
    WTC responder means an individual who--
    (1) Meets the definition at 42 U.S.C. 300mm-21(a)(1)(A) and has 
been identified as enrolled in the WTC Health Program, under 42 CFR 
88.3 (as in effect on January 17, 2017);
    (2) Meets the definition at 42 U.S.C. 300mm-21(a)(1)(B) and has 
received an affirmative decision from the WTC Health Program under 42 
CFR 88.6(d)(1) (as in effect on January 17, 2017);
    (3) Meets the definition at 42 U.S.C. 300mm-31(a)(1) and--
    (i) Has been identified as certified-eligible under 42 CFR 88.7 (as 
in effect on January 17, 2017); or
    (ii) Has received the status of a certified-eligible survivor from 
the WTC Health Program under 42 CFR 88.12 (as in effect on January 17, 
2017);
    (4) Has been determined by the September 11th Victim Compensation 
Fund to be an eligible claimant under section 104.2(b)(1) of this title 
(as in effect on January 17, 2017); or
    (5) Subject to 42 U.S.C. 300mm-21(a)(5), meets the definition at 42 
U.S.C. 300mm-21(a)(1).

0
4. Amend Sec.  32.4 as follows:
0
a. In paragraph (b), remove ``42 U.S.C. 3796a(4)'' and add in its place 
``34 U.S.C. 10282(a)(4)''.
0
b. In paragraph (d), remove ``42 U.S.C. 3796(k), shall apply only with 
respect to heart attacks or strokes referred to in the Act, at 42 
U.S.C. 3796(k)(2)'' and add in its place ``34 U.S.C. 10281(k), shall 
apply only with respect to heart attacks,

[[Page 22383]]

strokes, or vascular ruptures referred to in the Act, at 34 U.S.C. 
10281(k)(2))''.
0
c. Add paragraph (e).
    The addition reads as follows:


Sec.  32.4  Terms; construction; severability; effect.

* * * * *
    (e) Unless expressly provided otherwise, any reference in this part 
to any provision of law not in this part shall be understood to 
constitute a general reference under the doctrine of incorporation by 
reference, and thus to include any subsequent amendments to the 
provision.

0
5. Amend Sec.  32.5 as follows:
0
a. In paragraph (b), remove ``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.'' and add in its 
place ``provided in the Act or this part, the PSOB determining official 
may, at his discretion, consider (but shall not be bound by) the 
factual findings of a public agency (or public safety agency).''.
0
b. In paragraph (f), remove ``42 U.S.C. 3796c-1'' each place it appears 
and add in its place ``34 U.S.C. 10286''.
0
c. In paragraph (f)(1)(ii), remove (i.e., performing official functions 
for, or on behalf of, the agency);'' and add in its place ``and 
performing official functions for, or on behalf of, the agency;''.
0
d. In paragraph (f)(1)(iii)(D), remove ``public employee member of one 
of the agency's rescue squads or ambulance crews;'' and add in its 
place ``employee member or volunteer member of a rescue squad or 
ambulance crew that is (or is a component of) the agency;''.
0
e. In paragraph (f)(1)(iii)(E), remove ``42 U.S.C. 3796b(9)(B)'' and 
add in its place ``34 U.S.C. 10284(9)(B)''.
0
f. In paragraph (g), remove ``42 U.S.C. 3787 (hearings, subpoenas, 
oaths, witnesses, evidence), and to the authorities specified at 42 
U.S.C. 3788(b)-(d)'' and add in its place ``34 U.S.C. 10225 (hearings, 
subpoenas, oaths, witnesses, evidence), and to the authorities 
specified at 34 U.S.C. 10226(b)-(d)''.
0
g. In paragraph (h)(2)(v), remove ``42 U.S.C. 3795a'' and add in its 
place ``34 U.S.C. 10272''.
0
h. In paragraph (i), remove ``public agency'' and add in its place 
``public safety agency''.
0
i. Add paragraphs (j), (k), (l) and (m).
    The additions read as follows:


Sec.  32.5   Evidence.

* * * * *
    (j) Public safety activity that is performed by a law enforcement 
officer or a firefighter shall be presumed to satisfy the requirements 
of paragraph (1)(i)(A) or (1)(ii)(A) (as the case may be) of the 
definition of Line of duty activity or action in Sec.  32.3 if the 
public safety activity--
    (1) Was not forbidden (at the time performed) by any applicable 
statute, rule, regulation, condition of employment or service, official 
mutual-aid agreement, or other law; and
    (2) Occurred--
    (i) Within a jurisdiction where he is authorized to act, in the 
ordinary course, in an official capacity as such a law enforcement 
officer or firefighter; or
    (ii) Within a jurisdiction (not described in the immediately-
preceding paragraph) that, at the time the public safety activity was 
performed, had a statute, rule, regulation, official mutual-aid 
agreement, or other law, in effect that authorized law enforcement 
officers or firefighters from outside such jurisdiction to perform, 
within the jurisdiction, the activity that occurred.
    (k) Absent evidence that the public safety activity was forbidden 
as described in paragraph (j)(1) of this section, the requirements of 
such paragraph (j) shall be presumed to be satisfied in any case in 
which full line-of-duty death or disability benefits (as the case may 
be) have been paid--
    (1) By (or on behalf of) any jurisdiction described in paragraph 
(j)(2) of this section;
    (2) With respect to a law enforcement officer or firefighter; and
    (3) Upon an administrative or judicial determination in the 
ordinary course (other than pursuant to a settlement or quasi-
settlement) that such law enforcement officer or firefighter sustained 
an injury in the line of duty that caused his death or disability.
    (l) In the event that the presumption established by paragraph (j) 
of this section should arise pursuant to paragraph (j)(2)(ii) thereof, 
the law enforcement officer or firefighter shall be presumed to have 
been serving the jurisdiction described in such paragraph (j)(2)(ii) in 
an official capacity at the time he performed the public safety 
activity.
    (m) A volunteer fire department that is legally licensed or-
authorized to engage in fire suppression shall be presumed to satisfy 
the requirements of paragraphs (1)(ii) and (2)(iii) of the definition 
of Instrumentality.

0
6. Amend Sec.  32.6 as follows:
0
a. Revise paragraph (b).
0
b. In paragraph (d), remove ``42 U.S.C. 3796(m)'' and add in its place 
``34 U.S.C. 10281(m)''.
0
c. Add paragraph (f).
    The revision and addition read as follows:


Sec.  32.6  Payment and repayment.

* * * * *
    (b) No payment shall be made, save pursuant to a claim, filed by 
(or on behalf of) the payee, that (except as provided in the Act, at 34 
U.S.C. 10281(c)) has been approved in a final agency determination.
* * * * *
    (f)(1) If the actual net payment of the Victim Compensation Fund 
after subtraction of any offset required by law (compensation) made 
under the September 11th Victim Compensation Fund of 2001 (49 U.S.C. 
40101 note) has been paid with respect to an injury, the total amount 
payable under subpart B or C of this part, with respect to the same 
injury, shall be reduced by the amount of such payment of compensation.
    (2) Nothing in paragraph (f)(1) of this section, or in the Act, at 
34 U.S.C. 10281(f)(3), shall be understood to preclude payment under 
this part before the final payment of compensation under such Fund.
    (3) Nothing in the Act, at 34 U.S.C. 10281(f)(3), shall be 
understood to require reduction of any amount payable under subpart D 
of this part.

0
7. Amend Sec.  32.7 as follows:
0
a. In the first sentence of paragraph (a), remove ``claimant for 
representative services provided in connection with any claim may'' and 
add in its place ``claimant for representative services provided in 
connection with any matter under this part may''.
0
b. Revise the introductory text of paragraph (c).
0
c. Revise the introductory text of paragraph (d).
0
d. In the first sentence of paragraph (f), remove ``Upon its 
authorizing or not authorizing the payment of any amount under 
paragraph'' and add in its place ``Upon its approving (in whole or in 
part), or denying, a petition under paragraph''.
0
e. In the second sentence of paragraph (f), remove ``authorization'' 
and add in its place ``approval or denial''.
0
f. Add paragraph (h).
    The revisions and addition read as follows:


Sec.  32.7   Fees for representative services.

* * * * *
    (c) Unless the petition is approved pursuant to paragraph (h)(1) of 
this section (without regard to the exception thereto), consideration 
of a petition under paragraph (a) of this section shall be subject to 
paragraph (d) of this section and shall be based on the following 
factors:
* * * * *
    (d) Unless the petition is approved pursuant to paragraph (h)(1) of 
this

[[Page 22384]]

section (without regard to the exception thereto), no amount in a 
petition under paragraph (a) of this section shall be approved for--
* * * * *
    (h)(1) Except as provided in paragraph (h)(2) of this section, the 
PSOB Office shall approve any petition under paragraph (a) of this 
section for authorization to receive an amount that is not greater than 
the following, for representative services provided by an individual 
who was duly licensed to practice law in the jurisdiction in any State:
    (i) In connection with a claim that is approved under subpart B or 
C, an amount equal to three percent of the benefit paid to (or with 
respect to) the claimant on whose behalf the representative services 
were provided;
    (ii) In connection with a claim approved under subpart E that is 
subsequently approved under subpart F, an amount equal to six percent 
of the benefit paid to (or with respect to) the claimant on whose 
behalf the representative services were provided; and
    (iii) In connection with a claim denied under subpart E that is 
subsequently approved under subpart F, an amount equal to nine percent 
of the benefit paid to (or with respect to) the claimant on whose 
behalf the representative services were provided.
    (2) In the event that it decides that the amount set forth in 
paragraph (h)(1) of this section would be excessive (or otherwise 
inappropriate) for the representative services that form the substance 
of a particular petition under paragraph (a) of this section, the PSOB 
Office shall consider the petition pursuant to paragraph (c) of this 
section.


Sec.  32.11   [Amended]

0
8. Amend Sec.  32.11 as follows:
0
a. In paragraph (a), remove ``42 U.S.C. 3796(a)'' and add in its place 
``34 U.S.C. 10281(a)''.
0
b. In paragraph (b), remove ``42 U.S.C. 3796c-1'' and add in its place 
``34 U.S.C. 10286''.

0
9. Effective June 14, 2018, revise Sec.  32.12 to read as follows:


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 whichever of the following is latest:
    (1) Three years after the public safety officer's death; or
    (2) One year after the later of--
    (i) A final determination of entitlement to receive, or of denial 
of, the benefits, if any, described in Sec.  32.15(a)(1)(i); or
    (ii) The receipt of the certification described in Sec.  
32.15(a)(1)(ii); or
    (3) The end of the supporting-evidence collection period.
    (b) Unless, for good cause shown, the Director extends the time for 
filing, no individual may file a notice of intention to file a claim 
after the later of--
    (1) The period described in paragraph (a)(1) of this section; or
    (2) The period described in paragraph (a)(2) of this section.
    (c) In the event that a claim is filed that fails to identify and 
provide foundational evidence as to status and injury, the Director 
shall deny the claim for lack of that foundational evidence. Not less 
than thirty-three days prior to such denial, the PSOB Office shall 
serve the claimant with notice of the date on which the Director will 
deny for that lack of evidence. Upon the claimant's request, filed 
prior to the date specified for the denial, the Director shall, in lieu 
of the denial--
    (1) Allow the claimant to withdraw his claim; and
    (2) Deem (as of the date of the request to withdraw) the claimant 
to have filed a notice of intention to file a claim, if a notice of 
intention otherwise filed by the claimant on that date would be timely 
under paragraph (b) of this section.
    (d) Notwithstanding paragraph (a) of this section, unless, for good 
cause shown, the Director extends the time for filing, no claim based 
on an injury sustained by a WTC responder and resulting from the 
September 11, 2001, attacks shall be considered if it is filed with the 
PSOB Office after the latest of--
    (1) The time provided in paragraph (a) of this section;
    (2) Two years after the earlier of--
    (i) The date on which the WTC-related physical health condition, if 
any, is determined by the September 11th Victim Compensation Fund, for 
the WTC responder, to meet the definition at section 104.2(i) of this 
title (as in effect on January 17, 2017); or
    (ii) The date on which the WTC-related health condition, if any, is 
certified, for the WTC responder, under (as applicable) 42 U.S.C. 
300mm-22(b)(1)(B)(ii) or 42 U.S.C. 300mm-22(b)(2)(A)(ii); or
    (3) June 14, 2020.

0
10. Effective June 14, 2020, revise paragraph (d) of Sec.  32.12 to 
read as follows:


Sec.  32.12   Time for filing claim.

* * * * *
    (d) Notwithstanding paragraph (a) of this section, unless, for good 
cause shown, the Director extends the time for filing, no claim based 
on an injury sustained by a WTC responder and resulting from the 
September 11, 2001, attacks shall be considered if it is filed with the 
PSOB Office after the later of--
    (1) The time provided in paragraph (a) of this section; or
    (2) Two years after the earlier of--
    (i) The date on which the WTC-related physical health condition, if 
any, is determined by the September 11th Victim Compensation Fund, for 
the WTC responder, to meet the definition at section 104.2(i) of this 
title (as in effect on January 17, 2017); or
    (ii) The date on which the WTC-related health condition, if any, is 
certified, for the WTC responder, under (as applicable) 42 U.S.C. 
300mm-22(b)(1)(B)(ii) or 42 U.S.C. 300mm-22(b)(2)(A)(ii).

0
11. Amend Sec.  32.13 as follows:
0
a. Remove the definition of Beneficiary under the Act, at 42 U.S.C. 
3796(a)(4)(A).
0
b. Add definitions of Beneficiary under the Act, at 34 U.S.C. 
10281(a)(4)(A) and Competent medical evidence in alphabetical order.
0
c. Remove the definition of Competent medical evidence to the contrary.
0
d. In the definition of Designation on file, remove ``42 U.S.C. 
3796(a)(4)(A)'' and add in its place ``34 U.S.C. 10281(a)(4)(A)''.
0
e. In paragraph (2) of the definition of Engagement in a situation 
involving law enforcement, fire suppression, rescue, hazardous material 
response, emergency medical services, prison security, disaster relief, 
or other emergency response activity, remove ``The public agency he 
serves'' and add in its place ``His public safety agency''.
0
f. In the definition of Event, remove ``42 U.S.C. 3796(k)(1)'' and add 
in its place ``34 U.S.C. 10281(k)(1)''.
0
g. Remove the definition of Excessive consumption of alcohol.
0
h. Add a definition of Execution of a designation of beneficiary under 
the Act, at 34 U.S.C. 10281(a)(4)(A) in alphabetical order.
0
i. Remove the definitions of Extrinsic circumstances; Execution of a 
designation of beneficiary under the Act, at 42 U.S.C. 3796(a)(4)(A) 
and Most recently executed designation of beneficiary under the Act, at 
42 U.S.C. 3796 (a)(4)(A).
0
j. Add a definition of Most recently executed designation of 
beneficiary under the Act, at 34 U.S.C. 10281(a)(4)(A) in alphabetical 
order.
0
k. In the definitions of Nonroutine strenuous physical activity and 
Nonroutine stressful physical activity,

[[Page 22385]]

remove ``42 U.S.C. 3796(l)'' and add in its place ``34 U.S.C. 
10281(l)''.
0
l. In paragraph (1) of the definition of Participation in a training 
exercise, remove ``public agency;'' and add in its place ``public 
safety agency;''.
0
m. Remove the definition of Public safety agency, -organization, or-
unit.
0
n. Add a definition of Public safety organization or unit in 
alphabetical order.
0
o. Remove the definition of Risky behavior.
0
p. In paragraph (1) of the definition of Routine, remove ``public 
agency'' and add in its place ``public safety agency''.
0
q. Add definitions of Something other than the mere presence of 
cardiovascular disease risk factors and Unrelated, in alphabetical 
order.
0
r. Remove the definition of Undertaking of treatment.
    The additions read as follows:


Sec.  32.13  Definitions.

* * * * *
    Beneficiary under the Act, at 34 U.S.C. 10281(a)(4)(A)--An 
individual (living or deceased on the date of death of the public 
safety officer) is designated, by such officer (and as of such date), 
as beneficiary under the Act, at 34 U.S.C. 10281(a)(4)(A), only if the 
designation is, as of such date, legal and valid and unrevoked (by such 
officer or by operation of law) or otherwise unterminated, except 
that--
    (1) Any designation of an individual (including any designation of 
the biological or adoptive offspring of such individual) made in 
contemplation of such individual's marriage (or purported marriage) to 
such officer shall be considered to be revoked by such officer as of 
such date of death if the marriage (or purported marriage) did not take 
place, unless preponderant evidence demonstrates that--
    (i) It did not take place for reasons other than personal 
differences between the officer and the individual; or
    (ii) No such revocation was intended by the officer; and
    (2) Any designation of a spouse (or purported spouse) made in 
contemplation of or during such spouse's (or purported spouse's) 
marriage (or purported marriage) to such officer (including any 
designation of the biological or adoptive offspring of such spouse (or 
purported spouse)) shall be considered to be revoked by such officer as 
of such date of death if the spouse (or purported spouse) is divorced 
from such officer subsequent to the date of designation and before such 
date of death, unless preponderant evidence demonstrates that no such 
revocation was intended by the officer.
* * * * *
    Competent medical evidence means evidence that indicates a fact to 
a degree of medical probability.
* * * * *
    Execution of a designation of beneficiary under the Act, at 34 
U.S.C. 10281(a)(4)(A) means the legal and valid execution, by the 
public safety officer, of a writing that, designating a beneficiary, 
expressly, specifically, or unmistakably refers to--
    (1) The Act (or the program it creates); or
    (2) All the death benefits with respect to which such officer 
lawfully could designate a beneficiary (if there be no writing that 
satisfies paragraph (1) of this definition).
* * * * *
    Most recently executed designation of beneficiary under the Act, at 
34 U.S.C. 10281(a)(4)(A) means the most recently executed such 
designation that, as of the date of death of the public safety officer, 
designates a beneficiary.
* * * * *
    Public safety organization or unit means--
    (1) The component of a public agency, in which component--
    (i) An individual described in the Act, at 34 U.S.C. 10284(9)(A), 
serves in an official capacity; or
    (ii) An employee described in the Act, at 34 U.S.C. 10284(9)(B) or 
(C) performs official duties; or
    (2) The component of an agency or entity, under the authority (or 
by the license) of which component a member of a rescue squad or 
ambulance crew engages in activity (or in the provision of services) 
described in the Act, at 34 U.S.C. 10284(9)(D).
* * * * *
    Something other than the mere presence of cardiovascular disease 
risk factors means--
    (1) Ingestion of controlled substances included on Schedule I of 
the drug control and enforcement laws (see 21 U.S.C. 812(a)); or
    (2) Abuse of controlled substances included on Schedule II, III, 
IV, or V of the drug control and enforcement laws (see 21 U.S.C. 
812(a)).
* * * * *
    Unrelated -- A public safety officer's heart attack, stroke, or 
vascular rupture is unrelated to the officer's engagement in a 
situation or participation in a training exercise, when an independent 
event or occurrence is a substantial contributing factor in bringing 
the officer's heart attack, stroke, or vascular rupture about.

0
12. Amend Sec.  32.14 as follows:
0
a. Revise paragraph (a).
0
b. In paragraph (b), remove ``abandoned.'' and add in its place 
``abandoned, as though never filed.''
0
c. Remove paragraph (c).
    The revision reads as follows:


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). Such notice shall--
    (1) Specify the factual findings and legal conclusions that support 
it; and
    (2) In the event of a denial, provide information as to requesting 
a Hearing Officer determination.
* * * * *


Sec.  32.15   [Amended]

0
13. Amend Sec.  32.15 as follows:
0
a. In paragraph (a) introductory text, remove ``42 U.S.C. 3796c-1'' and 
add in its place ``34 U.S.C. 10286''.
0
b. In paragraph (a)(1) introductory text, remove ``the public agency in 
which the public safety officer served'' and add in its place ``the 
public safety officer's public safety agency''.
0
c. In paragraph (a)(2), add ``(or public safety agency)'' after 
``public agency''.
0
d. In paragraph (b), remove ``public agency that legally is authorized 
to pay death benefits with respect to the agency described in that 
paragraph.'' and add in its place ``public agency (or public safety 
agency) that legally is authorized to pay death benefits with respect 
to the agency described in such paragraph (a)(1).''.
0
e. In paragraph (c)(1), add ``, and every public safety agency,'' 
before ``that''.
0
f. In paragraph (c)(2), add ``, or public safety agency,'' before 
``legally''.
0
g. In paragraph (d) introductory text, remove ``42 U.S.C. 3796(k), are 
satisfied with respect to a particular public safety officer's death, 
and that no circumstance specified in the Act, at 42 U.S.C. 3796a(1),'' 
and add in its place ``34 U.S.C. 10281(k), are satisfied with respect 
to a particular public safety officer's death, and that no circumstance 
specified in the Act, at 34 U.S.C. 10282(a)(1),''.
0
h. In paragraph (d)(2)(i), add ``(or public safety agency's)'' before 
``understanding''.
0
i. In paragraph (d)(2)(ii), add ``(or public safety agency)'' before 
``is''.


Sec.  32.16  [Amended]

0
14. Remove paragraph (c) of Sec.  32.16.


Sec.  32.21  [Amended]

0
15. Amend Sec.  32.21 as follows:

[[Page 22386]]

0
a. In paragraph (a), remove ``42 U.S.C. 3796(b)'' and add in its place 
``34 U.S.C. 10281(b)''.
0
b. In paragraph (b), remove ``42 U.S.C. 3796c-1'' and add in its place 
``34 U.S.C. 10286''.

0
16. Effective June 14, 2018, revise Sec.  32.22 to read as follows:


Sec.  32.22  Time for filing claim.

    (a) Unless, for good cause shown, the Director extends the time for 
filing, no claim shall be considered if it is filed with the PSOB 
Office after the later of--
    (1) Three years after the injury date; or
    (2) One year after the later of--
    (i) A final determination of entitlement to receive, or of denial 
of, the benefits, if any, described in Sec.  32.25(a)(1)(i); or
    (ii) The receipt of the certification described in Sec.  
32.25(a)(1)(ii); or
    (3) The end of the supporting-evidence collection period.
    (b) Unless, for good cause shown, the Director extends the time for 
filing, no individual may file a notice of intention to file a claim 
after the later of--
    (1) The period described in paragraph (a)(1) of this section; or
    (2) The period described in paragraph (a)(2) of this section.
    (c) In the event that a claim is filed that fails to identify and 
provide foundational evidence as to status and injury, the Director 
shall deny the claim for lack of that foundational evidence. Not less 
than thirty-three days prior to such denial, the PSOB Office shall 
serve the claimant with notice of the date on which the Director will 
deny for that lack of evidence. Upon the claimant's request, filed 
prior to the date specified for the denial, the Director shall, in lieu 
of the denial--
    (1) Allow the claimant to withdraw his claim; and
    (2) Deem (as of the date of the request to withdraw) the claimant 
to have filed a notice of intention to file a claim, if a notice of 
intention otherwise filed by the claimant on that date would be timely 
under paragraph (b) of this section.
    (d) Notwithstanding paragraph (a) of this section, unless, for good 
cause shown, the Director extends the time for filing, no claim based 
on an injury sustained by a WTC responder and resulting from the 
September 11, 2001, attacks shall be considered if it is filed with the 
PSOB Office after the latest of--
    (1) The time provided in paragraph (a) of this section;
    (2) Two years after the earlier of--
    (i) The date on which the WTC-related physical health condition, if 
any, is determined by the September 11th Victim Compensation Fund, for 
the WTC responder, to meet the definition at section 104.2(i) of this 
title (as in effect on January 17, 2017); or
    (ii) The date on which the WTC-related health condition, if any, is 
certified, for the WTC responder, under (as applicable) 42 U.S.C. 
300mm-22(b)(1)(B)(ii) or 42 U.S.C. 300mm-22(b)(2)(A)(ii); or
    (3) June 14, 2020.

0
17. Effective June 14, 2020, revise paragraph (d) of Sec.  32.22 to 
read as follows:


Sec.  32.22   Time for filing claim.

* * * * *
    (d) Notwithstanding paragraph (a) of this section, unless, for good 
cause shown, the Director extends the time for filing, no claim based 
on an injury sustained by a WTC responder and resulting from the 
September 11, 2001, attacks shall be considered if it is filed with the 
PSOB Office after the later of--
    (1) The time provided in paragraph (a) of this section; or
    (2) Two years after the earlier of--
    (i) The date on which the WTC-related physical health condition, if 
any, is determined by the September 11th Victim Compensation Fund, for 
the WTC responder, to meet the definition at section 104.2(i) of this 
title (as in effect on January 17, 2017); or
    (ii) The date on which the WTC-related health condition, if any, is 
certified, for the WTC responder, under (as applicable) 42 U.S.C. 
300mm-22(b)(1)(B)(ii) or 42 U.S.C. 300mm-22(b)(2)(A)(ii).

0
18. Amend Sec.  32.24 as follows:
0
a. Revise paragraph (a).
0
b. In paragraph (b), remove ``abandoned.'' and add in its place 
``abandoned, as though never filed.''
    The revision reads as follows:


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 (and upon any other claimant 
who may have filed a claim with respect to the same public safety 
officer). Such notice shall--
    (1) Specify the factual findings and legal conclusions that support 
it; and
    (2) In the event of a denial, provide information as to--
    (i) Requesting a Hearing Officer determination; or
    (ii) As applicable, moving to reconsider a negative disability 
finding.
* * * * *


Sec.  32.25  [Amended]

0
19. Amend Sec.  32.25 as follows:
0
a. In paragraph (a) introductory text, remove ``42 U.S.C. 3796c-1'' and 
add in its place ``34 U.S.C. 10286''.
0
b. In paragraph (a)(1) introductory text, remove ``the public agency in 
which the public safety officer served'' and add in its place ``the 
public safety officer's public safety agency''.
0
c. In paragraph (a)(2)(ii), remove ``made by any public agency'' and 
add in its place ``or findings made by any public agency (or public 
safety agency)''.
0
d. In paragraph (b), add ``(or public safety agency)'' after ``public 
agency''.
0
e. In paragraph (c)(1), add ``, and every public safety agency,'' 
before ``that''.
0
f. In paragraph (c)(2), add ``, or public safety agency,'' before 
``legally''.


Sec.  32.26   [Removed and reserved]

0
20. Remove and reserve Sec.  32.26.


Sec.  32.31   [Amended]

0
21. In Sec.  32.31, remove ``42 U.S.C. 3796d-1.'' and add in its place 
``34 U.S.C. 10302.''.


Sec.  32.32   [Amended]

0
22. Amend Sec.  32.32 as follows:
0
a. In paragraph (a), remove ``42 U.S.C. 3796d-1(c),'' and add in its 
place ``34 U.S.C. 10302(c),''.
0
b. In paragraph (c), remove ``nonphysical'' and add in its place ``non-
physical''.

0
23. Amend Sec.  32.33 as follows:
0
a. Remove the definitions of Dependent and Eligible dependent.
0
b. Revise the definition of Eligible public safety officer.
0
c. In the definition of Financial assistance, remove ``42 U.S.C. 3796d-
1'' and add in its place ``34 U.S.C. 10302''.
0
d. In paragraph (1) of the definition of Financial need, remove ``42 
U.S.C. 3796d-1(a)(3)(A)'' and add in its place ``34 U.S.C. 
10302(a)(3)''.
0
e. Remove the definitions of Public safety agency and Tax year.
    The revision reads as follows:


Sec.  32.33  Definitions.

* * * * *
    Eligible public safety officer means a public safety officer--
    (1) With respect to whose death, benefits under subpart B of this 
part properly--
    (i) Have been paid; or
    (ii) Would have been paid but for operation of the Act, at 34 
U.S.C. 10281(f); or
    (2) With respect to whose disability, benefits under subpart C of 
this part properly--
    (i) Have been paid; or
    (ii) Would have been paid, but for operation of--

[[Page 22387]]

    (A) Paragraph (b) of Sec.  32.6; or
    (B) The Act, at 34 U.S.C. 10281(f).
* * * * *


Sec.  32.34  [Amended]

0
24. In paragraph (c) of Sec.  32.34, remove ``abandoned.'' and add in 
its place ``abandoned, as though never filed.''


Sec.  32.36  [Amended]

0
25. In paragraph (a) of Sec.  32.36, remove ``42 U.S.C. 3796d-
1(a)(2),'' and add in its place ``34 U.S.C. 10302(a)(2),''.


Sec.  32.43  [Amended]

0
26. In paragraph (a) of Sec.  32.43, remove ``42 U.S.C. 3787'' and add 
in its place ``34 U.S.C. 10225''.

0
27. Revise paragraph (b) of Sec.  32.44 to read as follows:


Sec.  32.44  Hearing Officer determination.

* * * * *
    (b) Upon a Hearing Officer's approving or denying a claim, the PSOB 
Office shall serve notice of the same simultaneously upon the claimant 
(and upon any other claimant who may have filed a claim with respect to 
the same public safety officer). Such notice shall--
    (1) Specify the Hearing Officer's factual findings and legal 
conclusions that support it; and
    (2) In the event of a denial, provide information as to Director 
appeals.
* * * * *

0
28. Amend Sec.  32.45 as follows:
0
a. In paragraph (d)(1), remove ``; and''.
0
b. In paragraph (d)(2), remove the period and add in its place ``; 
and''.
0
c. Add paragraph (d)(3).
    The addition reads as follows:


Sec.  32.45  Hearings.

* * * * *
    (d) * * *
    (3) Shall (unless the Director should direct or allow otherwise) be 
the only individual (other than the claimant's representative, if any) 
who may examine the claimant.
* * * * *


Sec.  32.51  [Amended]

0
29. In Sec.  32.51, remove ``42 U.S.C. 3796c-1'' and add in its place 
``34 U.S.C. 10286''.


Sec.  32.52  [Amended]

0
30. In paragraph (b) of Sec.  32.52, remove ``nonphysical'' and add in 
its place ``non-physical''.

0
31. Effective June 14, 2018, amend Sec.  32.53 as follows:
0
a. In paragraph (b)(2), remove ``42 U.S.C. 3796c-1'' and add in its 
place ``34 U.S.C. 10286''.
0
b. Add paragraph (d).
    The addition reads as follows:


Sec.  32.53   Review.

* * * * *
    (d) The Director may reconsider a claim under subparts B or C of 
this part that has been denied in a final agency determination if--
    (1) The public safety officer was a WTC responder;
    (2) The claim was based on the allegation that--
    (i) The WTC responder sustained an injury that was the direct and 
proximate cause of his death or of his permanent and total disability; 
and
    (ii) The WTC responder's injury was sustained in the course of 
performance of line of duty activity or a line of duty action that 
exposed him to airborne toxins, other hazards, or other adverse 
conditions resulting from the September 11, 2001, attacks;
    (3) The sole ground of the denial was that the claim did not 
establish that--
    (i) The WTC responder sustained an injury in the course of 
performance of line of duty activity or a line of duty action; or
    (ii) The injury allegedly sustained by the WTC responder was the 
direct and proximate cause of his death or permanent and total 
disability;
    (4) The alleged injury on which the claim was based is a WTC-
related health condition; and
    (5) The claimant files with the PSOB Office a motion for such 
reconsideration before the later of--
    (i) Two years after the earlier of--
    (A) The date on which the WTC-related physical health condition, if 
any, is determined by the September 11th Victim Compensation Fund, for 
the WTC responder, to meet the definition at section 104.2(i) of this 
title (as in effect on January 17, 2017); or
    (B) The date on which the WTC-related health condition, if any, is 
certified, for the WTC responder, under (as applicable) 42 U.S.C. 
300mm-22(b)(1)(B)(ii) or 42 U.S.C. 300mm-22(b)(2)(A)(ii); or
    (ii) June 14, 2020.

0
32. Effective June 14, 2020, revise paragraph (d)(5) of Sec.  32.53, to 
read as follows:


Sec.  32.53  Review.

* * * * *
    (d) * * *
    (5) The claimant files with the PSOB Office a motion for such 
reconsideration before the earlier of two year--
    (i) The date on which the WTC-related physical health condition, if 
any, is determined by the September 11th Victim Compensation Fund, for 
the WTC responder, to meet the definition at section 104.2(i) of this 
title (as in effect on January 17, 2017); or
    (ii) The date on which the WTC-related health condition, if any, is 
certified, for the WTC responder, (as applicable) 42 U.S.C. 300mm-
22(b)(1)(B)(ii) or 42 U.S.C. 300mm-22(b)(2)(A)(ii).

0
33. Amend Sec.  32.54 as follows:
0
a. Revise paragraph (a).
0
b. In paragraph (c) introductory text, remove ``may--'' and add in its 
place ``may (among other things)--''.
    The revision reads as follows:


Sec.  32.54  Director determination.

    (a) Upon the Director's approving or denying a claim, the PSOB 
Office shall serve notice of the same simultaneously upon the claimant 
(and upon any other claimant who may have filed a claim with respect to 
the same public safety officer), and upon any Hearing Officer who made 
a determination with respect to the claim. Such notice shall--
    (1) Specify the factual findings and legal conclusions that support 
it; and
    (2) In the event of a denial, provide information as to judicial 
appeals.
* * * * *

0
34. Revise Sec.  32.55 to read as follows:


Sec.  32.55   Judicial appeal.

    Consistent with Sec.  32.8, no administrative action other than an 
approval or denial described in Sec.  32.54(a) shall constitute a final 
agency determination for purposes of the Act, at 34 U.S.C. 10287.

    Dated May 2, 2018.
Alan R. Hanson,
Principal Deputy Assistant Attorney General.
[FR Doc. 2018-09640 Filed 5-14-18; 8:45 am]
 BILLING CODE 4410-18-P