80 FR 12104 - Determination That an Individual Shall Not Be Deemed an Employee of the Public Health Service
DEPARTMENT OF JUSTICE Federal Register Volume 80, Issue 44 (March 6, 2015)
Federal Register Volume 80, Issue 44 (March 6, 2015)
| Page Range | 12104-12109 | |
| FR Document | 2015-05027 |
[Federal Register Volume 80, Number 44 (Friday, March 6, 2015)] [Proposed Rules] [Pages 12104-12109] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-05027] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE 28 CFR Part 15 [Docket No. CIV 150; AG Order No. 3504-2015] RIN 1105-AB37 Determination That an Individual Shall Not Be Deemed an Employee of the Public Health Service AGENCY: Department of Justice. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The proposed rule proposes criteria and a process by which the Attorney General or designee may determine that an individual shall not be deemed an employee of the Public Health Service for purposes of coverage under the Federal Tort Claims Act. DATES: Written comments must be postmarked on or before May 5, 2015, and electronic comments must be sent on or before midnight Eastern time May 5, 2015. ADDRESSES: To ensure proper handling of comments, please reference ``Docket No. CIV 150'' on all written and electronic correspondence. Written comments being sent via regular or express mail should be sent to James G. Touhey, Jr., Director, Torts Branch, Civil Division, Department of Justice, Room 8098N National Place Building, 1331 Pennsylvania Avenue NW., Washington, DC 20530. Comments may also be sent electronically through http://www.regulations.gov using the electronic comment form provided on that site. An electronic copy of this document is also available at the http://www.regulations.gov Web site. The Department will accept attachments to electronic comments in Microsoft Word, WordPerfect, Adobe PDF, or Excel file formats only. The Department will not accept any file formats other than those specifically listed here. Please note that the Department is requesting that electronic comments be submitted before midnight Eastern Time on the day the comment period closes because http://www.regulations.gov terminates the public's ability to submit comments at midnight Eastern Time on the day the comment period closes. Commenters in time zones other than Eastern Time may want to consider this so that their electronic comments are received. All comments sent via regular or express mail will be considered timely if postmarked on the day the comment period closes. FOR FURTHER INFORMATION CONTACT: James G. Touhey, Jr., Director, Torts Branch, Civil Division, Department of Justice, Washington, DC 20530, (202) 616-4400. SUPPLEMENTARY INFORMATION: Posting of Public Comments. Please note that all comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov and in the Department's public docket. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter. You are not required to submit personal identifying information in order to comment on this rule. Nevertheless, if you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of your comment. You must also place all the personal identifying information you do not want posted online or made available in the public docket in the first paragraph of your comment and identify what information you want redacted. If you want to submit confidential business information as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted [[Page 12105]] within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted online or made available in the public docket. Personal identifying information and confidential business information identified and located as set forth above will be redacted and the comment, in redacted form, will be posted online and placed in the Department's public docket file. Please note that the Freedom of Information Act applies to all comments received. If you wish to inspect the agency's public docket file in person by appointment, please see the ``For Further Information'' paragraph. Discussion The Federally Supported Health Centers Assistance Acts of 1992 (Pub. L. 102-501) and 1995 (Pub. L. 104-73) amended section 224 of the Public Health Service Act (42 U.S.C. 233) to make the Federal Tort Claims Act (FTCA) (28 U.S.C. 1346(b), 2671-2680) the exclusive remedy for personal injury or death resulting from the performance of medical, surgical, dental or related functions by federally supported health centers and their employees, to the extent the centers and employees have been deemed by the Public Health Service, Department of Health and Human Services, to be eligible for FTCA coverage. Section 233(i) of title 42 provides that the Attorney General, in consultation with the Secretary of Health and Human Services (Secretary), may on the record determine, after notice and an opportunity for a full and fair hearing, that an individual physician or other licensed or certified health care practitioner who is an officer, employee, or contractor of an entity described in 42 U.S.C. 233(g)(4) shall not be deemed to be an employee of the Public Health Service for purposes of 42 U.S.C. 233 if ``treating such individual as such an employee would expose the Government to an unreasonably high degree of risk of loss'' based on certain prescribed circumstances. This proposed rule proposes that the determination may be made based on one or more of the following statutory criteria: (1) The individual does not comply with the policies and procedures that the entity has implemented pursuant to 42 U.S.C. 233(h)(1); (2) the individual has a history of claims filed against him or her as provided for under 42 U.S.C. 233 that is outside the norm for licensed or certified health care practitioners within the same specialty; (3) the individual refused to reasonably cooperate with the Attorney General in defending against any such claim; (4) the individual provided false information relevant to the individual's performance of his or her duties to the Secretary, the Attorney General, or an applicant for or recipient of funds under title 42 chapter 6A; or (5) the individual was the subject of disciplinary action taken by a state medical licensing authority or a state or national professional society. The proposed rule proposes a process for making such a determination. The first step, pursuant to Sec. 15.13(a), is a determination by the ``initiating official,'' who is a Deputy Assistant Attorney General of the Department of Justice's Civil Division, that treating an individual as an employee of the Public Health Service may expose the Government to an unreasonably high degree of risk of loss. Section 15.13(a) requires the initiating official, after consultation with the Secretary of the Department of Health and Human Services, to provide notice to the individual in question that an administrative hearing will be held to determine whether treating the individual as an employee of the Public Health Service for purposes of 42 U.S.C. 233(g) would expose the United States to an unreasonably high degree of risk of loss. Following a period for discovery and depositions, to the extent determined appropriate by an administrative law judge under Sec. 15.15, the hearing is then conducted by the administrative law judge in the manner prescribed in Sec. 15.14. After the hearing is conducted and the record is closed, Sec. 15.16 requires the administrative law judge to submit written findings of fact, conclusions of law, and a recommended decision to the ``adjudicating official,'' who is the Assistant Attorney General for the Department of Justice's Civil Division. Section 15.17(b) then gives the parties 30 days to submit certain additional materials, including exceptions to the administrative law judge's recommended decision, to the adjudicating official, who then must make a final agency determination of whether treating the individual as an employee of the Public Health Service for purposes of 42 U.S.C. 233(g) would expose the United States to an unreasonably high degree of risk of loss. Section 15.18 provides that an individual who is dissatisfied with the determination may seek rehearing within 30 days after notice of the determination is sent, and Sec. 15.20 allows individuals who have been determined to expose the United States to an unreasonably high degree of risk of loss to apply for reinstatement after a period of time. Consistent with 42 U.S.C. 1320a-7e(a) and 45 CFR 60.3, 60.5(h) and 60.16, the rule also provides for the Department to notify the National Practitioner Data Bank (NPDB), a confidential information clearinghouse created by Congress with primary goals of improving health care quality and protecting the public, of the issuance of a final order deeming an individual not to be an employee of the Public Health Service under this rule. This proposed rule would add a new subpart B in part 15 of title 28, Code of Federal Regulations, containing the regulations of the Department of Justice governing such a determination. The Department invites comments on any issues relating to the proposed rule. Regulatory Flexibility Act The Attorney General, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this proposed rule and, by approving it, certifies that it would not have a significant economic impact on a substantial number of small entities because it pertains to personnel and administrative matters affecting the Department. Executive Orders 12866 and 13563: Regulatory Planning and Review This proposed rule has been drafted and reviewed in accordance with Executive Order 12866, ``Regulatory Planning and Review,'' and in accordance with Executive Order 13563, ``Improving Regulation and Regulatory Review.'' The Department of Justice has determined that this proposed rule is a ``significant regulatory action'' under Executive Order 12866, section 3(f), and accordingly this proposed rule has been reviewed by the Office of Management and Budget. 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has assessed the costs and benefits of this proposed rule and believes that its benefits would justify its costs. As an initial matter, the Department does not expect that the proposed rule would have systemic or large-scale costs, because it is only the [[Page 12106]] exceptional provider who would be subject to a de-deeming proceeding or determination; proceedings under this proposed rule would be rare and would not affect the overwhelming majority of patients, providers, or health centers. The costs associated with the proposed rule, then, would come in the individual instances of its application. A de-deeming administrative process would impose certain limited litigation-like costs, but Sec. Sec. 15.14 and 15.15 provide flexibility that will enable the parties and administrative law judge to avoid unduly burdensome costs when those costs are unnecessary. In the event that an individual is ultimately determined to expose the United States to an unreasonably high degree of risk of loss, there will be certain costs and benefits to patients, providers, and health centers. A provider who is deemed not to be a member of the Public Health Service may be required to obtain his or her own medical malpractice insurance (as may the health center, for matters involving the provider that are determined not to be covered by the FTCA) or leave the practice. If the individual leaves the practice, the employing center may incur costs of replacing him or her with a new provider. The Department expects that substantial benefits will arise from such replacements, as any individual who is replaced will be one who has been determined to create an unreasonably high degree of risk of loss. It is thus likely that the individual's replacement will provide reduced risks of loss for the United States and better care for patients. While there may be instances in which an individual who presented such a risk of loss cannot be replaced, possibly resulting in impaired access to care for medically underserved health center patients, the Department believes that these costs are substantially outweighed by the benefits of implementing this authority. The Department is unable to quantify these costs at this time, as the authority to deem a provider not a member of the Public Health Service has not previously been used. However, based on the expectation that the authority will be used sparingly and only for providers who expose the United States to an unreasonably high degree of risk of loss, the Department has concluded that the net benefits of improved patient care and reduced costs of malpractice will outweigh these possible costs. Executive Order 13132: Federalism This proposed rule would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, the Department of Justice has determined that this proposed rule would not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. Executive Order 12988: Civil Justice Reform This proposed rule meets the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order 12988. Unfunded Mandates Reform Act of 1995 This proposed rule would not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million 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, 2 U.S.C. 1501 et seq. Small Business Regulatory Enforcement Fairness Act of 1996 This proposed rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This proposed rule would not result in an annual effect on the economy of $100 million or more; a major increase in cost or prices; significant adverse effects on competition, employment, investment, productivity, or innovation; or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. List of Subjects in 28 CFR Part 15 Claims, Government contracts, Government employees, Health care, Immunization, Nuclear energy. For the reasons set forth in the preamble, the Attorney General proposes to amend part 15 of title 28 of the Code of Federal Regulations as follows: PART 15--CERTIFICATIONS, DECERTIFICATIONS, AND NON-DEEMING DETERMINATIONS FOR PURPOSES OF THE FEDERAL TORT CLAIMS ACT 0 1. The authority citation for part 15 is revised to read as follows: Authority: 5 U.S.C. 301, 554, 556, 557, and 8477(e)(4); 10 U.S.C. 1054, 1089; 22 U.S.C. 2702, 28 U.S.C. 509, 510, and 2679; 38 U.S.C. 7316; 42 U.S.C. 233, 2212, 2458a, and 5055(f); and sec. 2, Pub. L. 94-380, 90 Stat. 1113 (1976). 0 2. The heading for part 15 is revised to read as set forth above. 0 3. Add a heading for subpart A to read as follows: Subpart A--Certification and Decertification in Connection With Certain Suits Based Upon Acts or Omissions of Federal Employees and Other Persons Sec. Sec. 15.1, 15.2, 15.3, and 15.4 [Designated as Subpart A] 0 4. Designate Sec. Sec. 15.1 through 15.4 as subpart A. Sec. Sec. 15.5, 15.6, 15.7, 15.8, 15.9, and 15.10 [Added and Reserved] 0 5. Add reserved Sec. Sec. 15.5 through 15.10 to newly designated subpart A. 0 6. Add subpart B to read as follows: Subpart B--Determination of Individuals Deemed Not To Be Employees of the Public Health Service Sec. 15.11 Purpose. 15.12 Definitions. 15.13 Notice of hearing. 15.14 Conduct of hearing. 15.15 Discovery. 15.16 Recommended decision. 15.17 Final agency determination. 15.18 Rehearing. 15.19 Effective date of a final agency determination. 15.20 Reinstatement. Sec. 15.11 Purpose. (a) The purpose of this regulation is to implement the notice and hearing procedures applicable to a determination by the Attorney General or his designee under 42 U.S.C. 233(i) that an individual shall not be deemed an employee of the Public Health Service for purposes of 42 U.S.C. 233(g). (b) Section 233(i) of title 42 provides that the Attorney General, in consultation with the Secretary of Health and Human Services, may on the record determine, after notice and an opportunity for a full and fair hearing, that an individual physician or other licensed or certified health care practitioner who is an officer, employee, or contractor of an entity described in 42 U.S.C. 233(g)(4) shall not be deemed to be an employee of the Public Health Service for purposes of 42 U.S.C. 233 if treating such individual as such an employee would expose the Government to an unreasonably high degree of risk of loss. Sec. 15.12 Definitions. As used in this regulation: [[Page 12107]] (a) Attorney General means the Attorney General of the United States or any designee of the Attorney General to whom authority has been delegated to conduct a hearing and to make a determination pursuant to section 233(i) of title 42, United States Code. (b) Adjudicating official means the Assistant Attorney General for the Civil Division. (c) Entity means an entity described in 42 U.S.C. 233(g)(4). (d) Health and Human Services means the Department of Health and Human Services or a division or component of the Department of Health and Human Services. (e) Individual means an individual physician or other licensed or certified health care practitioner who is or was an officer, employee, or contractor of an entity described in 42 U.S.C. 233(g)(4). (f) Initiating official means a Deputy Assistant Attorney General of the Civil Division of the Department of Justice or, except for responsibilities that the initiating official must perform personally, his or her designee. (g) Parties means an Individual, as defined in paragraph (e) of this section, and the Initiating official, as defined in paragraph (f) of this section. (h) Public Health Service means the Public Health Service or a division or component of the Public Health Service. (i) Secretary means the Secretary of the Department of Health and Human Services or the Secretary's designee. (j) Unreasonably high degree of risk of loss is a determination based on consideration of one or more of the following criteria-- (1) The individual does not comply with the policies and procedures that the entity has implemented pursuant to 42 U.S.C. 233(h)(1); (2) The individual has a history of claims filed against him or her as provided for under 42 U.S.C. 233 that is outside the norm for licensed or certified health care practitioners within the same specialty; (3) The individual refused to reasonably cooperate with the Attorney General in defending against any such claim; (4) The individual provided false information relevant to the individual's performance of his or her duties to the Secretary, the Attorney General, or an applicant for or recipient of funds under title 42, chapter 6A, United States Code; or (5) The individual was the subject of disciplinary action taken by a state medical licensing authority or a state or national professional society. Sec. 15.13 Notice of hearing. (a) Whenever the initiating official personally concludes that treating an individual as an employee of the Public Health Service may expose the Government to an unreasonably high degree of risk of loss, the initiating official, after consultation with the Secretary, shall notify the individual that an administrative hearing will be conducted for the purpose of determining whether treating the individual as an employee of the Public Health Service for purposes of 42 U.S.C. 233(g) would expose the United States to an unreasonably high degree of risk of loss. (b) The notice of hearing shall be in writing and shall be sent by registered or certified mail to the individual at the individual's last known address, or to the individual's attorney in the event the Attorney General has received written notice that the individual has retained counsel. (c) The notice shall contain: (1) A statement of the nature and purpose of the hearing; (2) The name of the administrative law judge; (3) A statement of the nature of the action proposed to be taken; and (4) A statement of the time, date, and location of the hearing. (d) The hearing shall be initiated not sooner than 60 days of the date on the written notice of hearing. Sec. 15.14 Conduct of hearing. (a) An administrative law judge appointed in accordance with 5 U.S.C. 3105 shall preside over the hearing. (b) If the administrative law judge appointed is unacceptable to the individual, the individual shall inform the Attorney General within 14 days of the notification of the reasons for his or her position. The Attorney General may select another administrative law judge, or affirm the initial selection. In either case, the official shall inform the individual of the reasons for the decision. (c) The administrative law judge shall have the following powers: (1) Administer oaths and affirmations; (2) Issue subpoenas authorized by law; (3) Rule on offers of proof and receive relevant evidence; (4) Take depositions or have depositions taken when the ends of justice would be served; (5) Regulate the course of the hearing; (6) Hold conferences for the settlement or simplification of the issues by consent of the parties or by the use of alternative means of dispute resolution; (7) Inform the parties as to the availability of one or more alternative means of dispute resolution, and encourage use of such methods; (8) Dispose of procedural requests or similar matters; (9) Make or recommend decisions; (10) Require and, in the discretion of the administrative law judge, adopt proposed findings of fact, conclusions of law, and orders. (11) Take other action authorized by agency rule consistent with this subchapter; (12) All powers and duties reasonably necessary to perform the functions enumerated in paragraphs (c)(1) through (11) of this section. (d) The administrative law judge may call upon the parties to consider: (1) Simplification or clarification of the issues; (2) Stipulations, admissions, agreements on documents, or other understandings that will expedite conduct of the hearing; (3) Limitation of the number of witnesses and of cumulative evidence; (4) Such other matters as may aid in the disposition of the case. (e) At the discretion of the administrative law judge, parties or witnesses may participate in hearings by video conference. (f) All hearings under this part shall be public unless otherwise ordered by the administrative law judge. (g) The hearing shall be conducted in conformity with 5 U.S.C. 554- 557 (sections 5-8 of the Administrative Procedure Act). (h) The initiating official shall have the burden of going forward with the evidence and shall generally present the government's evidence first. (i) Technical rules of evidence shall not apply to hearings conducted pursuant to this part, but rules designed to assure production of the most credible evidence available and to subject testimony to cross-examination shall be applied where reasonably necessary by the administrative law judge. The administrative law judge may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties, and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record. (j) During the time a proceeding is before an administrative law judge, all motions shall be addressed to the administrative law judge and, if within [[Page 12108]] his or her delegated authority, shall be ruled upon. Any motion upon which the administrative law judge has no authority to rule shall be certified to the adjudicating official with a recommendation. The opposing party may answer within such time as may be designated by the administrative law judge. The administrative law judge may permit further replies by both parties. Sec. 15.15 Discovery. (a) At any time after the initiation of the proceeding, the administrative law judge may order, by subpoena if necessary, the taking of a deposition and the production of relevant documents by the deponent. Such order may be entered upon a showing that the deposition is necessary for discovery purposes, and that such discovery could not be accomplished by voluntary methods. Such an order may also be entered in extraordinary circumstances to preserve relevant evidence upon a showing that there is substantial reason to believe that such evidence could not be presented through a witness at the hearing. The decisive factors for a determination under this subsection, however, shall be fairness to all parties and the requirements of due process. A deposition may be taken orally or upon written questions before any person who has the power to administer oaths and shall not exceed one day of seven hours. (b) Each deponent shall be duly sworn, and any adverse party shall have the right to cross-examine. Objections to questions or documents shall be in short form, stating the grounds upon which objections are made. The questions propounded and the answers thereto, together with all objections made (but not including argument or debate), shall be reduced to writing and certified by the person before whom the deposition was taken. Thereafter, the person taking the deposition shall forward the deposition and one (1) copy thereof to the party at whose instance the deposition was taken and shall forward one (1) copy to the representative of the other party. (c) A deposition may be admitted into evidence as against any party who was present or represented at the taking of the deposition, or who had due notice thereof, if the administrative law judge finds that there are sufficient reasons for admission and that the admission of the evidence would be fair to all parties and comport with the requirements of due process. Sec. 15.16 Recommended decision. Within a reasonable time after the close of the record of the hearings conducted under Sec. 15.14, the administrative law judge shall submit written findings of fact, conclusions of law, and a recommended decision to the adjudicating official. The administrative law judge shall promptly make copies of these documents available to the parties and the Secretary. Sec. 15.17 Final agency determination. (a) In hearings conducted under Sec. 15.14, the adjudicating official shall make the final agency determination, on the basis of the record, findings, conclusions, and recommendations presented by the administrative law judge. (b) Prior to making a final agency determination, the adjudicating official shall give the parties an opportunity to submit the following, within thirty (30) days after the submission of the administrative law judge's recommendations: (1) Proposed findings and determinations; (2) Exceptions to the recommendations of the administrative law judge; (3) Supporting reasons for the exceptions or proposed findings or determinations; and (4) Final briefs summarizing the arguments presented at the hearing. (c) All determinations made by the adjudicating official under this rule shall constitute final agency actions. After a final agency determination under this rule that an individual shall not be deemed to be an employee of the Public Health Service, such individual will be deemed not to be an employee of the Public Health Service except pursuant to Sec. 15.20. Sec. 15.18 Rehearing. (a) An individual dissatisfied with a final agency determination under Sec. 15.17 may, within 30 days after the notice of the final agency determination is sent, request the adjudicating official to re- review the record, and may present additional evidence that is appropriate and pertinent to support a different decision. (b) The adjudicating official may require that another oral hearing be held on one or more of the issues in controversy, or permit the dissatisfied party to present further evidence or argument in writing, if the adjudicating official finds that the individual has: (1) Presented evidence or argument that is sufficiently significant to require the conduct of further proceedings; or (2) Shown some defect in the conduct of the adjudication under this subpart sufficient to cause substantial unfairness or an erroneous finding in that adjudication. (c) Any rehearing ordered by the adjudicating official shall be conducted pursuant to Sec. Sec. 15.13 through 15.16. (d) A determination that an individual may be deemed to be an employee of the Public Health Service for purposes of 42 U.S.C. 233 pursuant to this section shall be distributed in the same manner as provided in Sec. 15.19. Sec. 15.19 Effective date of a final agency determination. (a) A final agency determination under Sec. 15.17 that an individual shall not be deemed to be an employee of the Public Health Service for purposes of 42 U.S.C. 233 shall be provided to the Department of Health and Human Services and sent by certified or registered mail to the individual and to the entity employing such individual if the individual is currently an officer, employee, or contractor of an entity described in 42 U.S.C. 233(g)(4). In the event the individual is no longer an officer, employee, or contractor of such an entity, the determination shall be sent by certified or registered mail to the individual and to the last entity described in 42 U.S.C. 233(g)(4) at which such individual was an officer, employee, or contractor. (b) A final agency determination shall be effective upon the date the written determination is received by such entity. (c) An adverse final agency determination shall apply to all acts or omissions of the individual occurring after the date the adverse final determination is received by such entity. (d) The Attorney General will inform the National Practitioner Data Bank of any final agency determination under Sec. 15.17 that an individual shall not be deemed to be an employee of the Public Health Service for purposes of 42 U.S.C. 233. Sec. 15.20 Reinstatement. (a) No less than five years after the time for rehearing has expired, and no more often than every five years, an individual who has been the subject of a final agency determination under Sec. 15.17 may petition the Attorney General for reconsideration of that determination and reinstatement. The individual bears the burden of proof and persuasion. (b) In support of the petition for reinstatement, the individual shall submit relevant evidence relating to the period since the original proceedings under this subpart and a statement [[Page 12109]] demonstrating that treating the individual as an employee of the Public Health Service for purposes of 42 U.S.C. 233(g) would no longer expose the United States to an unreasonably high degree of risk of loss. (c) Upon receiving a petition for reinstatement, the initiating official shall determine, in the initiating official's unreviewable discretion, whether the petition makes a prima facie case that no longer would expose the United States to an unreasonably high degree of risk of loss. The initiating official's determination that a petition does not make a prima facie case is not subject to further review. (d) Upon a prima facie case having been made, an administrative law judge shall be appointed in accordance with 5 U.S.C. 3105 and shall conduct such proceedings pursuant to Sec. Sec. 15.13 through 15.16 as the administrative law judge deems necessary, in his or her sole discretion, to determine whether the individual has established that treating the individual as an employee of the Public Health Service for purposes of 42 U.S.C. 233(g) would no longer expose the United States to an unreasonably high degree of risk of loss, and shall submit written findings of fact, conclusions of law, and a recommended decision to the adjudicating official pursuant to Sec. 15.16. (e) On a petition for reinstatement, the adjudicating official shall make the final agency determination, on the basis of the record, findings, conclusions, and recommendations presented by the administrative law judge, which shall include the record from the original determination and any petition for rehearing. All determinations made by the adjudicating official under this rule shall constitute final agency actions. (f) A determination that an individual is reinstated pursuant to this section shall be distributed in the same manner as provided in Sec. 15.19. Dated: February 25, 2015. Eric H. Holder, Jr., Attorney General. [FR Doc. 2015-05027 Filed 3-5-15; 8:45 am] BILLING CODE 4410-12-P
![12104 Federal Register / Vol. 80, No. 44 / Friday, March 6, 2015 / Proposed Rules
S was a member of the P group. Under extraordinary item (see paragraph electronic comment form provided on
§ 1.1502–32(b)(2)(i), P’s basis in its S stock is (b)(2)(ii)(C)(9) of this section) that becomes that site. An electronic copy of this
increased to reflect S’s $40 gain immediately deductible on July 1 simultaneously with the document is also available at the
before the redemption of S’s stock. event that terminates S’s election as an S
http://www.regulations.gov Web site.
(c) Partial redemption. The facts are the corporation. Under paragraph (b)(1)(ii)(B)(2)
same as in paragraph (a) of this Example 9, of this section, S’s obligation to pay the fee The Department will accept attachments
except that S distributes the land to P in is treated as becoming deductible on June 30 to electronic comments in Microsoft
redemption of 20 shares of P’s stock in S. under the previous day rule. Word, WordPerfect, Adobe PDF, or
Thus, immediately after the redemption, P Excel file formats only. The Department
owns 75% (60 shares/80 shares) of S’s (6) Effective/applicability date. will not accept any file formats other
outstanding stock, and S’s minority Paragraphs (b)(2)(i) and (b)(4) of this than those specifically listed here.
shareholder owns 25% (20 shares/80 shares). section apply to consolidated return Please note that the Department is
The redemption does not satisfy the years beginning on or after the date requesting that electronic comments be
requirements of section 302(b) and is treated these regulations are published as final
under section 302(d) as a distribution to submitted before midnight Eastern Time
regulations in the Federal Register. on the day the comment period closes
which section 301 applies. The end of the Otherwise, this paragraph (b) applies to
day rule does not apply for purposes of because http://www.regulations.gov
determining whether P and S are members of
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after the redemption. Because P owns only after the date these regulations are the day the comment period closes.
75% of S’s stock immediately after the published as final regulations in the Commenters in time zones other than
redemption, the distribution is not an Federal Register. Eastern Time may want to consider this
intercompany distribution described in * * * * *
§ 1.1502–13(f)(2)(i). Thus, P may not exclude
so that their electronic comments are
any amount of the distribution that is a John Dalrymple, received. All comments sent via regular
dividend, and P’s basis in S’s stock is not Deputy Commissioner for Services and
or express mail will be considered
reduced under § 1.1502–32(b)(2)(iv). P may Enforcement. timely if postmarked on the day the
be entitled to a dividends received deduction
[FR Doc. 2015–05123 Filed 3–5–15; 8:45 am]
comment period closes.
under section 243(c) (but see section FOR FURTHER INFORMATION CONTACT:
1059(e)). For the reasons discussed in BILLING CODE 4830–01–P
James G. Touhey, Jr., Director, Torts
paragraph (b) of this Example 9, S’s gain
Branch, Civil Division, Department of
under section 311(b) must be reported under
the end of the day rule in S’s taxable year Justice, Washington, DC 20530, (202)
DEPARTMENT OF JUSTICE 616–4400.
ending June 30, during which S was a
member of the P group. 28 CFR Part 15 SUPPLEMENTARY INFORMATION:
(d) Distribution of loss property. The facts Posting of Public Comments. Please
are the same as in paragraph (a) of this [Docket No. CIV 150; AG Order No. 3504– note that all comments received are
Example 9, except that the land distributed 2015] considered part of the public record and
by S to P has a fair market value of $60 rather made available for public inspection
than $140. The end of the day rule applies RIN 1105–AB37
for purposes of determining the taxable year
online at http://www.regulations.gov
in which S must take into account its Determination That an Individual Shall and in the Department’s public docket.
realized loss on the distribution of the land. Not Be Deemed an Employee of the Such information includes personal
Thus, under the end of the day rule, S’s loss Public Health Service identifying information (such as your
on the distribution of the land, which occurs name, address, etc.) voluntarily
simultaneously with S’s ceasing to be a AGENCY: Department of Justice. submitted by the commenter.
member, is taken into account in S’s taxable ACTION: Proposed rule. You are not required to submit
year that ends as a result of the redemption. personal identifying information in
However, the end of the day rule does not SUMMARY: The proposed rule proposes order to comment on this rule.
apply for other purposes; for example, the criteria and a process by which the Nevertheless, if you want to submit
rule does not apply in determining whether Attorney General or designee may
the transaction is an intercompany personal identifying information (such
determine that an individual shall not as your name, address, etc.) as part of
distribution or in determining the attributes be deemed an employee of the Public
(as defined in § 1.1502–13(b)(6)) of the loss. your comment, but do not want it to be
Health Service for purposes of coverage posted online or made available in the
Therefore, because S is not a member
immediately after the distribution, S’s loss on under the Federal Tort Claims Act. public docket, you must include the
the distribution is not recognized under DATES: Written comments must be phrase ‘‘PERSONAL IDENTIFYING
section 311(a). Under the end of the day rule, postmarked on or before May 5, 2015, INFORMATION’’ in the first paragraph
the loss is taken into account as a noncapital, and electronic comments must be sent of your comment. You must also place
nondeductible expense on the P group’s on or before midnight Eastern time May all the personal identifying information
consolidated return, and under § 1.1502– 5, 2015.
32(b)(1)(i), P’s basis in its S stock is you do not want posted online or made
decreased by $40 immediately before S ADDRESSES: To ensure proper handling available in the public docket in the first
leaves the group. of comments, please reference ‘‘Docket paragraph of your comment and identify
Example 10. Extraordinary item of S No. CIV 150’’ on all written and what information you want redacted.
corporation—(a) Facts. On July 1, P electronic correspondence. Written If you want to submit confidential
purchases all the stock of S, an accrual-basis comments being sent via regular or business information as part of your
rmajette on DSK2TPTVN1PROD with PROPOSALS
corporation with an election in effect under express mail should be sent to James G. comment, but do not want it to be
section 1362(a). Prior to the sale, S had Touhey, Jr., Director, Torts Branch, Civil posted online or made available in the
engaged a consulting firm to find a buyer for
Division, Department of Justice, Room public docket, you must include the
S’s stock, and the consulting firm’s fee was
contingent upon the successful closing of the 8098N National Place Building, 1331 phrase ‘‘CONFIDENTIAL BUSINESS
sale of S’s stock. Pennsylvania Avenue NW., Washington, INFORMATION’’ in the first paragraph
(b) Analysis. To the extent S’s payment of DC 20530. Comments may also be sent of your comment. You must also
the success-based fee to its consultants is electronically through http:// prominently identify confidential
otherwise deductible, this item is an www.regulations.gov using the business information to be redacted
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![12106 Federal Register / Vol. 80, No. 44 / Friday, March 6, 2015 / Proposed Rules
exceptional provider who would be distribution of power and 7316; 42 U.S.C. 233, 2212, 2458a, and
subject to a de-deeming proceeding or responsibilities among the various 5055(f); and sec. 2, Pub. L. 94–380, 90 Stat.
determination; proceedings under this levels of government. Therefore, in 1113 (1976).
proposed rule would be rare and would accordance with Executive Order 13132, ■ 2. The heading for part 15 is revised
not affect the overwhelming majority of the Department of Justice has to read as set forth above.
patients, providers, or health centers. determined that this proposed rule ■ 3. Add a heading for subpart A to read
The costs associated with the proposed would not have sufficient federalism as follows:
rule, then, would come in the implications to warrant the preparation
individual instances of its application. of a federalism summary impact Subpart A—Certification and
A de-deeming administrative process statement. Decertification in Connection With
would impose certain limited litigation- Certain Suits Based Upon Acts or
like costs, but §§ 15.14 and 15.15 Executive Order 12988: Civil Justice Omissions of Federal Employees and
provide flexibility that will enable the Reform Other Persons
parties and administrative law judge to This proposed rule meets the
avoid unduly burdensome costs when applicable standards provided in §§ 15.1, 15.2, 15.3, and 15.4
those costs are unnecessary. In the event sections 3(a) and 3(b)(2) of Executive [Designated as Subpart A]
■ 4. Designate §§ 15.1 through 15.4 as
that an individual is ultimately Order 12988.
determined to expose the United States subpart A.
Unfunded Mandates Reform Act of §§ 15.5, 15.6, 15.7, 15.8, 15.9, and
to an unreasonably high degree of risk
1995 15.10 [Added and Reserved]
of loss, there will be certain costs and
This proposed rule would not result ■ 5. Add reserved §§ 15.5 through 15.10
benefits to patients, providers, and
health centers. A provider who is in the expenditure by state, local, and to newly designated subpart A.
tribal governments, in the aggregate, or ■ 6. Add subpart B to read as follows:
deemed not to be a member of the
Public Health Service may be required by the private sector, of $100 million or
Subpart B—Determination of
to obtain his or her own medical more in any one year, and it will not
Individuals Deemed Not To Be
malpractice insurance (as may the significantly or uniquely affect small
Employees of the Public Health
health center, for matters involving the governments. Therefore, no actions were
Service
provider that are determined not to be deemed necessary under the provisions
covered by the FTCA) or leave the of the Unfunded Mandates Reform Act Sec.
practice. If the individual leaves the of 1995, 2 U.S.C. 1501 et seq. 15.11 Purpose.
practice, the employing center may 15.12 Definitions.
Small Business Regulatory Enforcement 15.13 Notice of hearing.
incur costs of replacing him or her with
Fairness Act of 1996 15.14 Conduct of hearing.
a new provider. The Department expects
This proposed rule is not a major rule 15.15 Discovery.
that substantial benefits will arise from
as defined by section 251 of the Small 15.16 Recommended decision.
such replacements, as any individual 15.17 Final agency determination.
who is replaced will be one who has Business Regulatory Enforcement 15.18 Rehearing.
been determined to create an Fairness Act of 1996, 5 U.S.C. 804. This 15.19 Effective date of a final agency
unreasonably high degree of risk of loss. proposed rule would not result in an determination.
It is thus likely that the individual’s annual effect on the economy of $100 15.20 Reinstatement.
replacement will provide reduced risks million or more; a major increase in cost
of loss for the United States and better or prices; significant adverse effects on § 15.11 Purpose.
care for patients. While there may be competition, employment, investment, (a) The purpose of this regulation is
instances in which an individual who productivity, or innovation; or the to implement the notice and hearing
presented such a risk of loss cannot be ability of United States-based procedures applicable to a
replaced, possibly resulting in impaired enterprises to compete with foreign- determination by the Attorney General
access to care for medically underserved based enterprises in domestic and or his designee under 42 U.S.C. 233(i)
health center patients, the Department export markets. that an individual shall not be deemed
believes that these costs are an employee of the Public Health
List of Subjects in 28 CFR Part 15 Service for purposes of 42 U.S.C. 233(g).
substantially outweighed by the benefits
of implementing this authority. Claims, Government contracts, (b) Section 233(i) of title 42 provides
The Department is unable to quantify Government employees, Health care, that the Attorney General, in
these costs at this time, as the authority Immunization, Nuclear energy. consultation with the Secretary of
to deem a provider not a member of the For the reasons set forth in the Health and Human Services, may on the
Public Health Service has not preamble, the Attorney General record determine, after notice and an
previously been used. However, based proposes to amend part 15 of title 28 of opportunity for a full and fair hearing,
on the expectation that the authority the Code of Federal Regulations as that an individual physician or other
will be used sparingly and only for follows: licensed or certified health care
providers who expose the United States practitioner who is an officer, employee,
to an unreasonably high degree of risk PART 15—CERTIFICATIONS, or contractor of an entity described in
of loss, the Department has concluded DECERTIFICATIONS, AND NON– 42 U.S.C. 233(g)(4) shall not be deemed
that the net benefits of improved patient DEEMING DETERMINATIONS FOR to be an employee of the Public Health
rmajette on DSK2TPTVN1PROD with PROPOSALS
care and reduced costs of malpractice PURPOSES OF THE FEDERAL TORT Service for purposes of 42 U.S.C. 233 if
will outweigh these possible costs. CLAIMS ACT treating such individual as such an
employee would expose the
Executive Order 13132: Federalism ■ 1. The authority citation for part 15 is Government to an unreasonably high
This proposed rule would not have revised to read as follows: degree of risk of loss.
substantial direct effects on the States, Authority: 5 U.S.C. 301, 554, 556, 557, and
on the relationship between the national 8477(e)(4); 10 U.S.C. 1054, 1089; 22 U.S.C. § 15.12 Definitions.
government and the States, or on the 2702, 28 U.S.C. 509, 510, and 2679; 38 U.S.C. As used in this regulation:
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![Federal Register / Vol. 80, No. 44 / Friday, March 6, 2015 / Proposed Rules 12109
demonstrating that treating the ENVIRONMENTAL PROTECTION the comment includes information
individual as an employee of the Public AGENCY claimed to be Confidential Business
Health Service for purposes of 42 U.S.C. Information (CBI) or other information
233(g) would no longer expose the 40 CFR Part 52 whose disclosure is restricted by statute.
United States to an unreasonably high [EPA–R07–OAR–2014–0528; FRL–9924–04- Do not submit through http://
degree of risk of loss. Region 7] www.regulations.gov or email
information that you consider to be CBI
(c) Upon receiving a petition for or otherwise protected. The http://
Approval and Promulgation of
reinstatement, the initiating official www.regulations.gov Web site is an
Implementation Plans; State of
shall determine, in the initiating Kansas; Infrastructure SIP ‘‘anonymous access’’ system, which
official’s unreviewable discretion, Requirements for the 2010 Sulfur means EPA will not know your identity
whether the petition makes a prima Dioxide National Ambient Air Quality or contact information unless you
facie case that no longer would expose Standard provide it in the body of your comment.
the United States to an unreasonably If you send an email comment directly
high degree of risk of loss. The initiating AGENCY: Environmental Protection to EPA without going through http://
official’s determination that a petition Agency. www.regulations.gov, your email
does not make a prima facie case is not ACTION: Proposed rule. address will be automatically captured
subject to further review. and included as part of the comment
SUMMARY: The Environmental Protection
(d) Upon a prima facie case having that is placed in the public docket and
Agency (EPA) is proposing to approve
been made, an administrative law judge made available on the Internet. If you
elements of a State Implementation Plan
submit an electronic comment, EPA
shall be appointed in accordance with 5 (SIP) submission from the State of
recommends that you include your
U.S.C. 3105 and shall conduct such Kansas addressing the applicable
name and other contact information in
proceedings pursuant to §§ 15.13 requirements of Clean Air Act (CAA)
the body of your comment and with any
through 15.16 as the administrative law section 110 for the 2010 National
disk or CD–ROM you submit. If EPA
judge deems necessary, in his or her Ambient Air Quality Standards
cannot read your comment due to
sole discretion, to determine whether (NAAQS) for Sulfur Dioxide (SO2),
technical difficulties and cannot contact
the individual has established that which requires that each state adopt and
you for clarification, EPA may not be
treating the individual as an employee submit a SIP to support implementation,
able to consider your comment.
of the Public Health Service for maintenance, and enforcement of each
Electronic files should avoid the use of
purposes of 42 U.S.C. 233(g) would no new or revised NAAQS promulgated by
special characters, any form of
longer expose the United States to an EPA. These SIPs are commonly referred
encryption, and should be free of any
unreasonably high degree of risk of loss, to as ‘‘infrastructure’’ SIPs. The
defects or viruses.
infrastructure requirements are designed Docket: All documents in the
and shall submit written findings of
to ensure that the structural components electronic docket are listed in the http://
fact, conclusions of law, and a
of each state’s air quality management www.regulations.gov index. Although
recommended decision to the program are adequate to meet the state’s
adjudicating official pursuant to § 15.16. listed in the index, some information is
responsibilities under the CAA. not publicly available, i.e., CBI or other
(e) On a petition for reinstatement, the DATES: Comments must be received on information whose disclosure is
adjudicating official shall make the final or before April 6, 2015. restricted by statute. Certain other
agency determination, on the basis of ADDRESSES: Submit your comments, material, such as copyrighted material,
the record, findings, conclusions, and identified by Docket ID No. EPA–R07– will be publicly available only in hard
recommendations presented by the OAR–2014–0528, by one of the copy. Publicly available docket
administrative law judge, which shall following methods: materials are available either
include the record from the original 1. http://www.regulations.gov. Follow electronically at http://
determination and any petition for the on-line instructions for submitting www.regulations.gov or in hard copy at
rehearing. All determinations made by comments. U.S. Environmental Protection Agency,
the adjudicating official under this rule 2. Email: kemp.lachala@epa.gov. Region 7, 11201 Renner Boulevard,
shall constitute final agency actions. 3. Mail: Ms. Lachala Kemp, Air Lenexa, Kansas 66219 from 8:00 a.m. to
Planning and Development Branch, U.S. 4:30 p.m., Monday through Friday,
(f) A determination that an individual Environmental Protection Agency,
is reinstated pursuant to this section excluding legal holidays. The interested
Region 7, Air and Waste Management persons wanting to examine these
shall be distributed in the same manner Division, 11201 Renner Boulevard,
as provided in § 15.19. documents should make an
Lenexa, Kansas 66219. appointment with the office at least 24
Dated: February 25, 2015. 4. Hand Delivery or Courier: Deliver
hours in advance.
Eric H. Holder, Jr., your comments to Ms. Lachala Kemp,
FOR FURTHER INFORMATION CONTACT: Ms.
Air Planning and Development Branch,
Attorney General.
U.S. Environmental Protection Agency, Lachala Kemp, Air Planning and
[FR Doc. 2015–05027 Filed 3–5–15; 8:45 am] Region 7, Air and Waste Management Development Branch, U.S.
BILLING CODE 4410–12–P Division, 11201 Renner Boulevard, Environmental Protection Agency,
Lenexa, Kansas 66219. Region 7, 11201 Renner Boulevard,
rmajette on DSK2TPTVN1PROD with PROPOSALS
Instructions: Direct your comments to Lenexa, KS 66219; telephone number:
Docket ID No. EPA–R07–OAR–2014– (913) 551–7214; fax number: (913) 551–
0528. EPA’s policy is that all comments 7065; email address: kemp.lachala@
received will be included in the public epa.gov.
docket without change and may be SUPPLEMENTARY INFORMATION:
made available online at http:// Throughout this document whenever
www.regulations.gov, including any ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we refer
personal information provided, unless to EPA. This section provides additional
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Document Created: 2018-02-21 09:33:05
Document Modified: 2018-02-21 09:33:05
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Written comments must be postmarked on or before May 5, 2015, and electronic comments must be sent on or before midnight Eastern time May 5, 2015. | |
| Contact | James G. Touhey, Jr., Director, Torts Branch, Civil Division, Department of Justice, Washington, DC 20530, (202) 616-4400. | |
| FR Citation | 80 FR 12104 | |
| RIN Number | 1105-AB37 | |
| CFR Associated | Claims; Government Contracts; Government Employees; Health Care; Immunization and Nuclear Energy |
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