The implementing regulations for the Hometown Heroes Act became effective on September 11, 2006 – 2 years and 9 months after the Act’s enactment on December 15, 2003. In addition to the time consumed by the effort to define the terms “nonroutine stressful or strenuous physical activity” and “competent medical evidence to the contrary” (discussed in the Background section of the report), OJP’s General Counsel told us that three other significant factors contributed to the time it took to revise the program regulations.
Extensive Revision of PSOB Program Regulations
The OJP General Counsel told us that he reviewed the original PSOB Program regulations that were issued in 1977 and determined that they needed to be completely rewritten because (1) Congress had passed at least 18 amendments to the PSOB Act, creating inconsistent and conflicting statutory language; (2) the original regulations were convoluted, excessively wordy, and often just repeated the statute as opposed to expanding on the legislation; and (3) the Hometown Heroes Act introduced criteria that could not be incorporated into the existing language of the regulation. The General Counsel estimated that incorporating the necessary changes into the original program regulations required 95 percent of the language to be revised, which contributed to the time it took OJP to issue revised regulations.
Review Process for Proposed and Final Regulations
In November 2004, OJP OGC began discussions with the Department’s Office of Legal Policy to determine if the Office of Management and Budget (OMB) would approve issuing an interim final rule for the PSOB Program so that OJP could start processing the claims it had received under the Hometown Heroes Act before the final regulations were issued.49 In January 2005, OGC sent a memorandum to the Office of Legal Policy that presented the argument for publishing an interim final rule. The Office of Legal Policy and OJP OGC discussed the issue and decided that OMB would not likely approve an exemption to the public notice and comment requirements of the federal rulemaking process. OJP decided to not request an interim final rule from OMB and to proceed with the slower process of issuing proposed and final rules. The Department’s review of OJP’s proposed PSOB regulations took a little over a month, and the subsequent OMB review took almost 3 months.50 For the final regulations, the Department’s and OMB’s reviews took the same amount of time as the reviews of the proposed regulations. Overall, the Office of Legal Policy and OMB reviews added approximately 8 months to the regulatory process.
2006 Legislation and Court Decisions
The General Counsel told us that he postponed completion of the final regulations for the PSOB Program because forthcoming new legislation and court decisions would affect the program and the proposed regulations had to be revised to reflect these developments. In September 2005, the House of Representatives passed the Department of Justice Reauthorization Act, which contained new amendments to the PSOB Act. Because it appeared likely that the law would be enacted before the end of that year, OJP OGC decided to wait to issue the PSOB Program regulations until the law was passed and signed by the President. That occurred in January 2006. The law made several modifications to definitions within the PSOB Act and required OJP to change and clarify the final regulations. In addition to the legislation, two U.S. Court of Federal Claims decisions issued on July 27, 2006, and August 2, 2006, changed other definitions in the regulations and required OJP OGC to amend the preamble to the final rule.51
An interim final rule is the issuance of a final rule (also called regulations) without prior notice and comment, but with a post-promulgation opportunity for comment. An agency then could revise the rule in the future based on the comments. This type of rulemaking allows the agency to issue a rule quickly.
The Administrative Procedures Act requires that new or updated regulations be reviewed and approved by both the agency promulgating them and by OMB before the regulations are published in either proposed or final form.
LaBare v. United States, 72 Fed. Cl. 111 (2006), and Groff v. United States, 72 Fed. Cl. 68 (2006).