Federal Law Enforcement Dependents Assistance Program

DEPARTMENT OF JUSTICE

Office of Justice Programs

28 CFR Part 32

[OJP(BJA)-1121]

RIN 1121-AA44

Federal Law Enforcement Dependents Assistance Program

AGENCY: Office of Justice Programs, Bureau of Justice Assistance,

Public Safety Officers' Benefits Office, Justice.

ACTION: Final rule.

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SUMMARY: Regulations are being issued to comply with the Federal Law

Enforcement Dependents Assistance (FLEDA) Act of 1996. The FLEDA

Program, to be administered by the Bureau of Justice Assistance through

a delegation of authority from the Attorney General, will provide

financial assistance in the form of awards to the children and spouses

of Federal civilian law enforcement officers whose deaths or permanent

and total disabilities in the line of duty resulted in the payment of

benefits under the Public Safety Officers' Benefits (PSOB) Program. The

financial assistance provided through

[[Page 37714]]

the FLEDA Program is designed to defray costs associated with higher

education for these children and spouses.

EFFECTIVE DATE: This regulation is effective July 15, 1997.

FOR FURTHER INFORMATION CONTACT: Jeff Allison, Chief, Public Safety

Officers' Benefits Office, 633 Indiana Avenue, N.W. Washington, D.C.

20531. Telephone: (202) 307-0635.

SUPPLEMENTARY INFORMATION: The Federal Law Enforcement Dependents

Assistance Act, P.L. 104-238, 110 Stat. 3114, Oct. 3, 1996, established

a new subpart 2 in Part L of title I of the Omnibus Crime Control and

Safe Streets Act of 1968, 42 U.S.C. Sec. 3796 et seq.) to provide

financial assistance to the children and spouses of Federal civilian

law enforcement officers killed or permanently and totally disabled in

the line of duty. The legislation redesignated the existing Public

Safety Officers' Benefit (PSOB) Act as subpart 1 of Part L.

This Act further recognizes the sacrifices and invaluable

contributions made to public safety in our Nation by Federal law

enforcement officers and their families. The Federal Law Enforcement

Dependents Assistance (FLEDA) program extends to the families of fallen

or disabled Federal law enforcement officers the higher education

assistance already available to state and local law enforcement

officers in many states. As stated in the Act, the purposes of this

program are--

(1) to enhance the appeal of service in civilian Federal law

enforcement agencies;

(2) to extend the benefits of higher education to qualified and

deserving persons who, by virtue of the death or total disability of an

eligible officer, may not be able to afford it otherwise; and

(3) to allow the family members of eligible officers to attain the

vocational and educational status which they would have attained had a

parent or spouse not been killed or disabled in the line of duty.

As an amendment to the existing PSOB program, the FLEDA program

offers educational benefits to the spouse or children of Federal law

enforcement officers with respect to whom a claim has already been

approved under the PSOB program. Thus, although the standards for the

two programs differ, these regulations are drafted as far as possible

to rely on existing determinations made by the Bureau of Justice

Assistance under the PSOB program regarding the death or disability of

a Federal law enforcement officer in the line of duty.

The FLEDA program authorizes the payment of benefits to eligible

dependents for attendance at an approved program of education at

institutions of higher learning. The program incorporates by reference

established definitions relating to eligible institutions and other

standard requirements for federal student aid programs under Title IV

of the Higher Education Act of 1965 (20 U.S.C. 1970 et seq.).

In general, eligible dependents may receive educational assistance

for up to 45 months of full-time education or training, or a

proportionately longer period of time for a part-time program. Absent a

finding of extraordinary circumstances, a dependent child will not be

eligible to receive educational benefits under the FLEDA program after

the child's 27th birthday.

Educational benefits under FLEDA are calculated under the standards

of 38 U.S.C. 3532, at the time the educational expenses are incurred.

Presently, the educational assistance allowance for an eligible person

pursuing a program of education consisting of institutional courses is

$404 per month for full-time, $304 for three-quarter-time, and $202 for

half-time pursuit, and proportional amounts for persons pursuing a

program of education less than half-time. Separately determined amounts

are available for a program of education that includes training in a

business or industrial establishment; for a ``farm cooperative''

program; or for an independent study program.

All eligible dependents may seek assistance prospectively for

attendance at an approved program of education. Dependents of a Federal

law enforcement officer who was killed in the line of duty on or after

May 1, 1992, also are eligible to receive retroactive benefits for a

program of education they have already undertaken. The calculation of

retroactive benefits shall be on the same basis as prospective

assistance. Such dependents are eligible for prospective assistance as

well, although the amount of retroactive benefits will be counted in

applying the durational limits on assistance. Dependents entitled to

retroactive benefits, if they so choose, may forgo such benefits and

apply only for prospective assistance.

On April 24, 1997, the Bureau of Justice Assistance (Bureau)

published proposed regulations in the Federal Register for

implementation of the FLEDA Program. In addition to publication, the

proposed regulations were sent to Federal law enforcement agencies, and

the families of Federal law enforcement officers killed or permanently

and totally disabled in the line of duty. Reviewers were invited to

comment over a thirty-day period, which ended May 27, 1997.

Comments were received from one individual, the United States

Postal Service, and the U.S. Department of Education. The Postal

Service expressed the support of its Postal Inspection Service for the

proposed regulations, and the FLEDA Program in general.

The U.S. Department of Education recommended that the Section

32.38(a)(4) provision in the proposed regulations for denial of FLEDA

benefits to dependents who are in default on federally guaranteed

student loans be expanded to apply to persons in default on any student

loan made through Title IV of the Higher Education Act of 1965. The

Bureau concurs with this recommendation and has modified Section

32.38(a)(4) accordingly. This modification does not limit FLEDA

applicants' ability to use financial assistance being provided by the

Bureau to repay defaulted loans consistent with an approved repayment

plan.

The U.S. Department of Education also pointed out that, with the

exception of Federal Pell Grants, assistance received through the FLEDA

Program will be considered by the Secretary of Education in determining

a student's need for financial assistance through the Title IV Student

Financial Assistance Program. This finding does not necessitate a

modification to Section 32.37(c) of the FLEDA regulations, but is

nonetheless important for FLEDA applicants to be aware of. It is the

opinion of the U.S. Department of Education and the Bureau that this

finding will not adversely affect an individual's financial ability to

obtain the benefits of higher education because reductions in Title IV

assistance are anticipated to be offset by FLEDA assistance.

The individual respondent asked whether the age 27 limitation set

forth in the FLEDA statute and at 32.22 (c) of the regulations pertains

to the age of the child at the time of his or her parent's death or

disability, or rather to the child's age at the time of application for

FLEDA benefits. Section 32.22 (c) refers to the child's age at the time

of application for FLEDA assistance. However, under the FLEDA statute

and regulations as written, a child over the age of 27 could request

retroactive assistance for educational costs incurred prior to his or

her 27th birthday. In addition, the current wording of the regulations

allows for exceptions, consistent with the statute, for extraordinary

circumstances that precluded the child from pursuing a

[[Page 37715]]

program of higher education prior to age 27.

The individual's second question was whether FLEDA assistance could

be applied to graduate school if the child was younger than 27 at the

time of his or her parent's death, but over age 27 while attending

graduate school. FLEDA assistance can be used to defray the costs of

graduate school. However, as indicated above, educational costs

incurred beyond the age of 27 are not compensable under the FLEDA

Program, absent a finding of extraordinary circumstances which

precluded the child from pursuing a program of higher education prior

to age 27.

The third question asked by the respondent was whether FLEDA

assistance could be received retroactively to reimburse a student for

loans that were paid off after the death or disability of his or her

parent. Consistent with Section 32.35 of the regulations, FLEDA

assistance can be used to reimburse a student for higher education

loans that were paid off following the death or disability of his or

her parent. Consistent with Section 32.35 of the regulations, FLEDA

assistance can be used to reimburse a student for higher education

loans that were paid off following the death or disability of his or

her parent if the loans were for educational expenses incurred

following the death or disability of the Federal law enforcement

officer.

Executive Order 12866

This regulation has been written and reviewed in accordance with

Executive Order 12866, Sec. 1(b), Principles of Regulation. The Office

of Justice Programs has determined that this rule is not a

``significant regulatory action'' under Executive Order 12866,

Sec. 3(f), Regulatory Planning and Review, and accordingly this rule

has not been reviewed by the Office of Management and Budget.

Executive Order 12612

This regulation will not have substantial direct effects on the

States, on the relationship between the national government and the

States, or on distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with Executive

Order 12612, it is determined that this rule does not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment.

Regulatory Flexibility Act

The Office of Justice Programs, in accordance with the Regulatory

Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by

approving it certifies that this regulation will not have a significant

economic impact upon a substantial number of small entities for the

following reasons: The FLEDA program will be administered by the Office

of Justice Programs, and any funds distributed under it shall be

distributed to individuals, not entities, and the economic impact is

limited to the Office of Justice Program's appropriated funds.

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 section, of

$100,000,000 or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by Sec. 804 of the Small

Business Regulatory Enforcement Fairness Act of 1996. This rule will

not result in an annual effect on the economy of $100,000,000 or more;

a major increase in cost or prices; or significant adverse effects on

competition, employment, investment, productivity, innovation, or on

the ability of United States-based companies to compete with foreign-

based companies in domestic and export markets.

Paperwork Reduction Act

The collection of information requirements contained in the

proposed regulation will be submitted to the Office of Management and

Budget for review under the Paperwork Reduction Act (44 U.S.C.

3504(h)).

List of Subjects in 28 CFR Part 32

Administrative practice and procedure, Claims, Disability benefits,

Law enforcement officers.

For the reasons set out in the preamble, title 28, part 32 of the

Code of Federal Regulations is amended as follows:

PART 32--PUBLIC SAFETY OFFICER'S DEATH AND DISABILITY BENEFITS

1. The authority citation for Part 32 continues to read as follows:

Authority: Part L of title I of the Omnibus Crime Control and

Safe Streets Act of 1968, as amended (42 U.S.C. 3711 et seq.)

Subpart A--[Amended]

2. The heading ``Subpart A--Introduction'' is revised to read

``Subpart A--Death and Disability Benefits''.

Sec. 32.1 [Amended]

3. In Sec. 32.1(a), in the first sentence, the phrase ``The purpose

of this part'' is revised to read ``The purpose of this subpart'' and

in the parenthetical, the phrase ``part L'' is revised to read

``subpart 1 of part L''.

Sec. 32.2 [Amended]

4. In Sec. 32.2, the phrase ``For purposes of this subpart--'' is

added as introductory text before paragraph (a).

Subpart B--[Amended]

5. The heading ``Subpart B--Officers Covered'' is removed and an

undesignated center heading reading ``Officers Covered'' is inserted in

its place.

Subpart C--[Amended]

6. The heading ``Subpart C--Beneficiaries'' is revised to read

``Beneficiaries'' as an undesignated center heading.

Sec. 32.10 [Amended]

7. In Sec. 32.10(a) introductory text, the phrase ``subpart B of

this part and Sec. 32.11 of subpart C of this part'' is revised to read

``this subpart''.

Subpart D--[Amended]

8. The heading ``Subpart D--Interim and Reduced Death Payments'' is

removed and an undesignated center heading reading ``Interim and

Reduced Death Payments'' is added in its place.

Sec. 32.16 [Amended]

9. In Sec. 32.16(a), the phrase ``subpart C'' is revised to read

``Secs. 32.10 through 32.15''.

Subpart E--[Amended]

10. The heading ``Subpart E--Filing and Processing of Claims'' is

removed and an undesignated center heading reading ``Filing and

Processing of Claims'' is added in its place.

Subpart F--[Amended]

11. The heading ``Subpart F--Determination, Hearing, and Review''

is removed and an undesignated center heading reading ``Determination,

[[Page 37716]]

Hearing, and Review'' is added in its place.

Subpart G--[Amended]

12. The heading ``Subpart G--National Programs for Families of

Public Safety Officers Who Have Died in the Line of Duty'' is removed

and an undesignated center heading reading ``National Programs for

Families of Public Safety Officers Who Have Died in the Line of Duty''

is added in its place.

13. Part 32 is amended by adding the following new subpart B

following Sec. 32.25:

Subpart B--Federal Law Enforcement Dependents Assistance

Sec.

32.31 Purpose.

32.32 Definitions.

32.33 Eligibility for assistance.

32.34 Application for assistance.

32.35 Retroactive benefits.

32.36 Action on applications for benefits.

32.37 Determination of benefits.

32.38 Denial of benefits.

32.39 Appeals.

32.40 Repayment.

Subpart B--Federal Law Enforcement Dependents Assistance

Sec. 32.31 Purpose.

This subpart implements the Federal Law Enforcement Dependents

Assistance Act of 1996, which authorizes the payment of financial

assistance for the purpose of higher education to the dependents of

Federal law enforcement officers who are found, under the provisions of

subpart A of this part, to have died as a direct and proximate result

of a personal injury sustained in the line of duty, or to have been

permanently and totally disabled as the direct result of a catastrophic

injury sustained in the line of duty.

Sec. 32.32 Definitions.

For purposes of this subpart:

(a) The Act means the Federal Law Enforcement Dependents Assistance

Act of 1996, Pub. L. 104-238, Oct. 3, 1996, codified as Subpart 2 of

Part L of title I of the Omnibus Crime Control and Safe Streets Act of

1968, 42 U.S.C. 3796d et seq.

(b)(1) Bureau means the Bureau of Justice Assistance of the Office

of Justice Programs, which is authorized to implement the provisions of

this subpart.

(2) PSOB means the Public Safety Officers' Benefits program

administered by the Bureau under subpart A of this part.

(3) FLEDA means the Federal Law Enforcement Dependents Assistance

program administered by the Bureau under this subpart.

(c) Federal law enforcement officer means any law enforcement

officer, as defined in Sec. 32.2(m), employed in a civilian capacity by

an agency of the United States Government, with respect to whom PSOB

benefits have been approved under subpart A of this part on account of

the officer's death or disability in the line of duty.

(d) Child means any person who was the biological, adopted, or

posthumous child, or the stepchild, of a Federal law enforcement

officer at the time of the officer's death or disabling injury with

respect to which PSOB benefits were approved under subpart A of this

part. A step-child must meet the provisions set forth in Sec. 32.15.

(e) Spouse means the husband or wife of a deceased or permanently

and totally disabled officer at the time of the officer's death or

disabling injury with respect to which PSOB benefits were approved

under subpart A of this part, and includes a spouse living apart from

the officer at that time for any reason.

(f) Dependent means the child or spouse of any eligible Federal law

enforcement officer.

(g) Program of education means any curriculum or any combination of

unit courses or subjects pursued at an eligible educational

institution, which generally is accepted as necessary to fulfill

requirements for the attainment of a predetermined and identified

educational, professional, or vocational objective. It includes course

work for the attainment of more than one objective if, in addition to

the previous requirements, all of the objectives generally are

recognized as reasonably related to a single career field.

(h) Eligible educational institution means a postsecondary

institution which--

(1) Is described in section 481 of the Higher Education Act of 1965

(20 U.S.C. 1088), as in effect on October 3, 1996, including--

(i) An institution of higher education as defined in section

1201(a) of such Act (20 U.S.C. 1141(a)),

(ii) A proprietary institution of higher education,

(iii) A postsecondary vocational institution, or

(iv) A foreign medical school; and

(2) Is eligible to participate in student assistance programs under

title IV of such Act (20 U.S.C. 1070 et seq.).

(i) Satisfactory progress means that the dependent is maintaining

satisfactory progress in the program of education, as determined under

section 484(c) of the Higher Education Act of 1965, as amended (20

U.S.C. 1091(c)).

(j) Educational expenses means tuition, room and board, books,

supplies, fees, and transportation expenses that are consistent with

the educational, professional or vocational objectives set forth by the

applicant in the application for assistance.

Sec. 32.33 Eligibility for assistance.

(a) Subject to the availability of appropriations, and the

provisions of the Act and this subpart, the Bureau shall provide

financial assistance to a dependent who attends a program of education

at an eligible educational institution and is--

(1) The child of any Federal law enforcement officer with respect

to whom PSOB benefits have been approved under subpart A of this part;

or

(2) The spouse of such an officer at the time of the officer's

death or on the date of the officer's totally and permanently disabling

injury.

(b) The educational assistance under this subpart is intended for

the sole purpose of defraying the costs of educational expenses and may

only be used to defray such costs. A certification of educational use

will be required.

(c) No child shall be eligible for assistance under this subpart

after the child's 27th birthday, absent a finding by the Bureau of

extraordinary circumstances precluding the child from pursuing a

program of education, including but not limited to the death of a

relative, personal injury or illness of the student, military service,

or financial hardship.

(d) No dependent shall receive assistance under this subpart for a

period in excess of forty-five months of full-time education or

training, or a proportionate period of time for a part-time program.

Sec. 32.34 Application for assistance.

(a) A person seeking assistance under this subpart shall submit an

application to the Bureau in such form and containing such information

as the Bureau may reasonably require. The provisions of Sec. 32.21

relating to evidence shall apply to applications under this subpart.

(b) An applicant for assistance under this subpart must establish

that the Bureau previously has received and approved a claim for PSOB

benefits under subpart A of this part with respect to the death or

disability of the parent or spouse of the applicant.

(1) A spouse or child recognized as the beneficiary of a PSOB claim

under subpart A of the part with respect to a deceased officer will be

recognized as a spouse or child for purposes of this subpart.

[[Page 37717]]

(2) In the case of a disabled Federal law enforcement officer

approved for PSOB benefits under subpart A of this part, applicants for

assistance under this subpart must submit birth or marriage

certificates or other proof of relationship consistent with Secs. 32.12

(spouse) and 32.13 (child), if such evidence had not been submitted

with respect to the PSOB claim.

(c) The application shall describe the program of education at an

eligible educational institution, and the educational expenses for

which assistance is sought. A request for assistance may be for

prospective assistance, for retroactive benefits pursuant to Sec. 32.35

(if applicable), or both.

(d)(1) A request for prospective assistance must be accompanied by

a certified copy of the official letter of acceptance from the eligible

educational institution (on official letterhead) to the dependent,

accepting the applicant into an educational program.

(2) The applicant also shall submit to the Bureau, when it is

available, the schedule of classes in which the applicant is enrolled,

and which must be consistent with the educational, professional, or

vocational objectives stated in the application.

(e) An applicant may be represented in any proceeding before the

Bureau by an attorney or other person authorized to act on behalf of

the applicant pursuant to Secs. 32.19 and 32.22.

Sec. 32.35 Retroactive benefits.

(a) Each dependent of a Federal law enforcement officer killed in

the line of duty on or after May 1, 1992, shall be eligible for

assistance, on the same basis and subject to the limitations of this

subpart, for each month in which the dependent had pursued a program of

education at an eligible educational institution.

(b) To be eligible for retroactive benefits, the applicant must

submit a certified copy of transcripts from the educational institution

covering the relevant time period. Absent compelling justification, no

application will be accepted more than five years from the last date

the applicant pursued such program of education.

(c) Subject to applicable limitations, retroactive benefits shall

be in addition to prospective assistance provided under this subpart. A

dependent eligible for retroactive benefits may choose to waive such

assistance and apply only for prospective assistance under the

provisions of this subpart.

Sec. 32.36 Action on applications for assistance.

(a) After examining the application for prospective or retroactive

assistance under the provisions and limitations of this subpart, and

any additional relevant information, the Bureau shall notify the

dependent in writing of the approval or disapproval of the application.

(b) If the application is denied, in whole or part, the Bureau

shall explain the reasons for the denial. A copy of the decision,

together with information as to the right to an appeal, shall be mailed

to the applicant's last known address.

Sec. 32.37 Determination of benefits.

(a)(1) Financial assistance under this subpart shall consist of

direct payments to an eligible dependent and shall be computed on the

basis set forth in 38 U.S.C. 3532.

(2) The dependent's status as a full-time, three-quarter-time,

half-time, or less-than-half-time student will be determined in

accordance with the requirements of, and must be certified by, the

eligible educational institution.

(b) In applying the limitations under this subpart with respect to

prospective assistance, the Bureau shall consider any retroactive

benefits provided to the dependent pursuant to Sec. 32.35.

(c) Benefits payable under this subpart shall be in addition to any

other benefit that may be due from any other source, except that, if

the FLEDA assistance in combination with other benefits would exceed

the total approved costs for the applicant's program of education, the

assistance under this subpart will be reduced by the amount of such

excess.

Sec. 32.38 Denial of benefits.

(a) No benefit shall be paid under this subpart if the Bureau

determines that the dependent is not eligible for, is no longer

eligible for, or is not entitled to the assistance for which

application is made. Without limitation, this will include

circumstances in which--

(1) The benefits would exceed the applicable durational limits;

(2) A dependent child has exceeded the age limit for benefits;

(3) The dependent has failed to maintain satisfactory progress in

the selected program of education as defined in Sec. 32.32(i);

(4) The dependent is in default on any student loan obtained

through Title IV of the Higher Education Act of 1965, unless the

assistance under this subpart is used for repayment of the defaulted

loans and the applicant provides evidence of this fact to the Bureau in

the form of an approved repayment plan; or

(5) The dependent is subject to a denial of federal benefits under

21 U.S.C. 862.

(b) The Bureau shall deny benefits under this subpart if--

(1) The educational institution attended by the dependent fails to

meet a requirement for eligibility described in Sec. 32.32(h);

(2) The dependent's enrollment in or pursuit of the selected

program of education would fail to meet the criteria established in

Sec. 32.32(g); or

(3) The dependent already is qualified by previous education or

training for the educational, professional or vocational objective for

which the program of education is offered.

Sec. 32.39 Appeals.

An applicant may, within 30 days after notification of denial,

submit a written appeal request to the Bureau. Appeals will be handled

consistent with Sec. 32.24 and the appendix to this part, except that

such appeals shall not be handled by oral hearing but will be conducted

through a record review by an administrative hearing officer.

Provisions in Sec. 32.24 and the appendix to this part relating to oral

hearings shall not be applicable to appeals under this subpart.

Sec. 32.40 Repayment.

In the event that the recipient of financial assistance under this

subpart fails to maintain satisfactory progress, as defined in

Sec. 32.32(i), or otherwise become ineligible for assistance (other

than as a result of age or the expiration of the time limit for

assistance), the dependent is liable for repayment of funds awarded for

prospective assistance. The Director of the Bureau may waive all or

part of such repayment, based on a consideration of the circumstances

and the hardship that would result from such repayment.

Dated: July 10, 1997.

Richard H. Ward,

Deputy Director, Bureau of Justice Assistance.

[FR Doc. 97-18584 Filed 7-14-97; 8:45 am]

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