Indemnification of Federal Trade Commission Employees, 30966-30967 [2017-14008]
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Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Rules and Regulations
FEDERAL TRADE COMMISSION
16 CFR Part 1
Indemnification of Federal Trade
Commission Employees
Federal Trade Commission
(‘‘FTC’’ or ‘‘Commission’’).
ACTION: Final rule.
AGENCY:
The Federal Trade
Commission is publishing a policy that
permits indemnification of FTC
employees in appropriate
circumstances, as determined by the
Commission or the Commission’s
designee, for claims made against them
as a result of actions taken by them in
the scope of their employment.
DATES: These amendments are effective
July 5, 2017.
FOR FURTHER INFORMATION CONTACT:
David C. Shonka, Acting General
Counsel, (202) 326–2222, Office of the
General Counsel, Federal Trade
Commission, 600 Pennsylvania Avenue
NW., Washington, DC 20580.
SUPPLEMENTARY INFORMATION: Presently,
the FTC does not have a policy to
indemnify its employees who are sued
in their individual capacities and who
suffer an adverse judgment as a result of
conduct taken within the scope of their
employment; nor does the FTC have a
policy to settle these claims with agency
funds. Lawsuits against federal
employees in their personal capacities
have proliferated since the Supreme
Court’s decision in Bivens v. Six
Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388
(1971). This decision held that personal
damage awards against a federal
employee are permitted when, in the
course of his or her employment, the
federal employee is found to have
violated an individual’s constitutional
rights. Although the Federal Liability
Reform and Tort Compensation Act of
1988, Public Law 100–694, prohibits
personal actions against Federal
employees for common law torts
committed while acting within the
scope of their employment, that Act
does not apply to suits against federal
employees for violation of the
Constitution or federal statutes.
The FTC believes that actions against
its employees in their personal
capacities and the potential for a
judgment against agency employees
hinder the agency’s effectiveness as a
law enforcement agency. The FTC’s
ability to effectively protect consumers
and promote competition depends upon
the willingness of its employees to
pursue investigations and litigation.
Uncertainty regarding what conduct
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may lead to a personal liability claim
resulting in a monetary judgment tends
to intimidate employees, stifle creativity
and initiative, and limit decisive action.
Thus, the threat of personal liability
against an employee for a decision made
or action taken as part of official duties
can adversely affect the FTC’s
achievement of its mission. The
adoption of a policy to permit
indemnification would help alleviate
these problems and afford FTC
employees the same protection now
given to other federal employees in
several other government agencies,
including the Agency for International
Development, Commodity Futures
Trading Commission, Department of
Commerce, Department of Education,
Department of Health and Human
Services, Department of the Interior, and
the Department of Justice.
The FTC’s policy permits, but does
not require, the agency to indemnify a
FTC employee who suffers an adverse
verdict, judgment, or other monetary
award, provided that the actions giving
rise to the judgment were taken within
the scope of employment, and that such
indemnification is in the interest of the
FTC, as determined by the Commission
or the Commission’s designee. The
policy also allows the agency to settle a
claim brought against an employee in
his or her individual capacity by the
payment of funds, upon a similar
determination by the Commission or the
Commission’s designee. Generally, the
FTC will not entertain a request either
to indemnify or to pay to settle a
personal damage claim against an
employee before entry of an adverse
verdict, judgment, or monetary award.
However, in certain cases, the
Commission or its designee, may
determine that exceptional
circumstances justify the earlier
indemnification or payment of a
settlement amount. This policy is
applicable to actions pending against
FTC employees as of its effective date,
as well as to actions commenced after
that date.
Regulatory Flexibility Act
The Commission certifies that these
new regulations, which deal solely with
internal policies governing FTC
personnel, do not require an initial or
final regulatory analysis under the
Regulatory Flexibility Act because they
will not have a significant economic
impact on a substantial number of small
entities. See 5 U.S.C. 605(b).
Paperwork Reduction Act
The regulations adopted herein do not
contain information collection
requirements within the meaning of the
PO 00000
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Fmt 4700
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Paperwork Reduction Act, 44 U.S.C.
3501–3520.
Administrative Procedure Act
The indemnification policy is
published in final form without the
opportunity for public notice and
comment because it is a general
statement of policy relating to FTC
management and personnel. See 5
U.S.C. 553(a)(2),(b).
List of Subjects in 16 CFR Part 1
Administrative practice and
procedure, Government employees,
Indemnity payments.
For the reasons set forth in the
preamble, the Federal Trade
Commission amends part 1, title 16, of
the Code of Federal Regulations, as
follows:
PART 1—GENERAL PROCEDURES
1. The authority citation for part 1
continues to read as follows:
■
Authority: Sec. 6, 38 Stat. 721 (15 U.S.C.
46), unless otherwise noted.
§§ 1.125 through 1.129
Reserved]
[Added and
2. In subpart Q, add and reserve
§§ 1.125 through 1.129.
■ 3. Add subpart R to read as follows:
■
Subpart R—Policy With Regard to
Indemnification of FTC Employees
Authority: 15 U.S.C. 46.
§ 1.130 Policy on employee
indemnification.
(a) The Commission may indemnify,
in whole or in part, its employees
(which for the purpose of this regulation
includes former employees) for any
verdict, judgment, or other monetary
award which is rendered against any
such employee, provided that the
conduct giving rise to the verdict,
judgment, or award was taken within
the scope of his or her employment with
the Federal Trade Commission and that
such indemnification is in the interest
of the Federal Trade Commission, as
determined as a matter of discretion by
the Commission, or its designee.
(b) The Commission may settle or
compromise a personal damage claim
against its employee by the payment of
available funds, at any time, provided
the alleged conduct giving rise to the
personal damage claim was taken
within the scope of employment and
that such settlement or compromise is
in the interest of the Federal Trade
Commission, as determined as a matter
of discretion by the Commission, or its
designee.
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05JYR1
Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Rules and Regulations
(c) Absent exceptional circumstances,
as determined by the Commission or its
designee, the Commission will not
entertain a request either to agree to
indemnify or to settle a personal damage
claim before entry of an adverse verdict,
judgment, or monetary award.
(d) When an employee of the Federal
Trade Commission becomes aware that
an action may be or has been filed
against the employee in his or her
individual capacity as a result of
conduct taken within the scope of his or
her employment, the employee shall
immediately notify his or her supervisor
that such an action is pending or
threatened. The supervisor shall
promptly thereafter notify the Office of
the General Counsel. Employees may be
authorized to receive legal
representation by the Department of
Justice in accordance with 28 CFR
50.15.
(e)(1) The employee may, thereafter,
request either:
(i) Indemnification to satisfy a verdict,
judgment or award entered against the
employee; or
(ii) Payment to satisfy the
requirements of a settlement proposal.
(2) The employee shall submit a
written request, with documentation
including copies of the verdict,
judgment, award, or settlement
proposal, as appropriate, to the head of
his or her division or office, who
thereupon shall submit to the General
Counsel, in a timely manner, a
recommended disposition of the
request. The General Counsel may also
seek the views of the Department of
Justice. The failure of an employee to
provide notification under paragraph (d)
of this section or make a request under
this paragraph (e) shall not impair the
agency’s ability to provide
indemnification or payment under this
section if it determines it is appropriate
to do so.
(f) Any amount paid under this
section either to indemnify a Federal
Trade Commission employee or to settle
a personal damage claim shall be
contingent upon the availability of
appropriated funds of the Federal Trade
Commission.
By direction of the Commission.
Donald S. Clark,
Secretary.
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DEPARTMENT OF DEFENSE
Department of the Navy
32 CFR Part 706
Certifications and Exemptions Under
the International Regulations for
Preventing Collisions at Sea, 1972
Department of the Navy, DoD.
Final rule.
AGENCY:
ACTION:
The Department of the Navy
(DoN) is amending its certifications and
exemptions under the International
Regulations for Preventing Collisions at
Sea, 1972 (72 COLREGS), to reflect that
the Deputy Assistant Judge Advocate
General (DAJAG) (Admiralty and
Maritime Law) has determined that USS
RALPH JOHNSON (DDG 114) is a vessel
of the Navy which, due to its special
construction and purpose, cannot fully
comply with certain provisions of the 72
COLREGS without interfering with its
special function as a naval ship. The
intended effect of this rule is to warn
mariners in waters where 72 COLREGS
apply.
DATES: This rule is effective July 5, 2017
and is applicable beginning June 23,
2017.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Commander Kyle Fralick,
(Admiralty and Maritime Law), Office of
the Judge Advocate General, Department
of the Navy, 1322 Patterson Ave. SE.,
Suite 3000, Washington Navy Yard, DC
20374–5066, telephone 202–685–5040.
SUPPLEMENTARY INFORMATION: Pursuant
to the authority granted in 33 U.S.C.
1605, the DoN amends 32 CFR part 706.
This amendment provides notice that
the DAJAG (Admiralty and Maritime
Law), under authority delegated by the
Secretary of the Navy, has certified that
USS RALPH JOHNSON (DDG 114) is a
vessel of the Navy which, due to its
special construction and purpose,
cannot fully comply with the following
specific provisions of 72 COLREGS
without interfering with its special
function as a naval ship: Annex I,
paragraph 3(a), pertaining to the
location of the forward masthead light
in the forward quarter of the ship, and
the horizontal distance between the
forward and after masthead lights;
Annex I, paragraph 3(c), pertaining to
placement of task lights not less than
two meters from the fore and aft
SUMMARY:
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30967
centerline of the ship in the athwartship
direction; Annex I, paragraph 2(f)(i),
pertaining to the placement of the
masthead light or lights above and clear
of all other lights and obstructions; and
Annex I, paragraph 2(f)(ii), pertaining to
the vertical placement of task lights. The
DAJAG (Admiralty and Maritime Law)
has also certified that the lights
involved are located in closest possible
compliance with the applicable 72
COLREGS requirements.
Moreover, it has been determined, in
accordance with 32 CFR parts 296 and
701, that publication of this amendment
for public comment prior to adoption is
impracticable, unnecessary, and
contrary to public interest since it is
based on technical findings that the
placement of lights on this vessel in a
manner differently from that prescribed
herein will adversely affect the vessel’s
ability to perform its military functions.
List of Subjects in 32 CFR Part 706
Marine safety, Navigation (water),
Vessels.
For the reasons set forth in the
preamble, the DoN amends part 706 of
title 32 of the Code of Federal
Regulations as follows:
PART 706—CERTIFICATIONS AND
EXEMPTIONS UNDER THE
INTERNATIONAL REGULATIONS FOR
PREVENTING COLLISIONS AT SEA,
1972
1. The authority citation for part 706
continues to read:
■
Authority: 33 U.S.C. 1605.
2. Section 706.2 is amended by:
a. In Table Four, paragraph 15,
adding, in alpha numerical order, by
vessel number, an entry for USS RALPH
JOHNSON (DDG 114); and
■ b. In Table Five, by adding, in alpha
numerical order, by vessel number, an
entry for USS RALPH JOHNSON (DDG
114).
The additions read as follows:
■
■
§ 706.2 Certifications of the Secretary of
the Navy under Executive Order 11964 and
33 U.S.C. 1605.
*
*
*
*
*
*
*
Table Four
*
*
*
15. * * *
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]]>Agencies
[Federal Register Volume 82, Number 127 (Wednesday, July 5, 2017)]
[Rules and Regulations]
[Pages 30966-30967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14008]
[[Page 30966]]
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FEDERAL TRADE COMMISSION
16 CFR Part 1
Indemnification of Federal Trade Commission Employees
AGENCY: Federal Trade Commission (``FTC'' or ``Commission'').
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Trade Commission is publishing a policy that
permits indemnification of FTC employees in appropriate circumstances,
as determined by the Commission or the Commission's designee, for
claims made against them as a result of actions taken by them in the
scope of their employment.
DATES: These amendments are effective July 5, 2017.
FOR FURTHER INFORMATION CONTACT: David C. Shonka, Acting General
Counsel, (202) 326-2222, Office of the General Counsel, Federal Trade
Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580.
SUPPLEMENTARY INFORMATION: Presently, the FTC does not have a policy to
indemnify its employees who are sued in their individual capacities and
who suffer an adverse judgment as a result of conduct taken within the
scope of their employment; nor does the FTC have a policy to settle
these claims with agency funds. Lawsuits against federal employees in
their personal capacities have proliferated since the Supreme Court's
decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971). This decision held that personal damage
awards against a federal employee are permitted when, in the course of
his or her employment, the federal employee is found to have violated
an individual's constitutional rights. Although the Federal Liability
Reform and Tort Compensation Act of 1988, Public Law 100-694, prohibits
personal actions against Federal employees for common law torts
committed while acting within the scope of their employment, that Act
does not apply to suits against federal employees for violation of the
Constitution or federal statutes.
The FTC believes that actions against its employees in their
personal capacities and the potential for a judgment against agency
employees hinder the agency's effectiveness as a law enforcement
agency. The FTC's ability to effectively protect consumers and promote
competition depends upon the willingness of its employees to pursue
investigations and litigation. Uncertainty regarding what conduct may
lead to a personal liability claim resulting in a monetary judgment
tends to intimidate employees, stifle creativity and initiative, and
limit decisive action. Thus, the threat of personal liability against
an employee for a decision made or action taken as part of official
duties can adversely affect the FTC's achievement of its mission. The
adoption of a policy to permit indemnification would help alleviate
these problems and afford FTC employees the same protection now given
to other federal employees in several other government agencies,
including the Agency for International Development, Commodity Futures
Trading Commission, Department of Commerce, Department of Education,
Department of Health and Human Services, Department of the Interior,
and the Department of Justice.
The FTC's policy permits, but does not require, the agency to
indemnify a FTC employee who suffers an adverse verdict, judgment, or
other monetary award, provided that the actions giving rise to the
judgment were taken within the scope of employment, and that such
indemnification is in the interest of the FTC, as determined by the
Commission or the Commission's designee. The policy also allows the
agency to settle a claim brought against an employee in his or her
individual capacity by the payment of funds, upon a similar
determination by the Commission or the Commission's designee.
Generally, the FTC will not entertain a request either to indemnify or
to pay to settle a personal damage claim against an employee before
entry of an adverse verdict, judgment, or monetary award. However, in
certain cases, the Commission or its designee, may determine that
exceptional circumstances justify the earlier indemnification or
payment of a settlement amount. This policy is applicable to actions
pending against FTC employees as of its effective date, as well as to
actions commenced after that date.
Regulatory Flexibility Act
The Commission certifies that these new regulations, which deal
solely with internal policies governing FTC personnel, do not require
an initial or final regulatory analysis under the Regulatory
Flexibility Act because they will not have a significant economic
impact on a substantial number of small entities. See 5 U.S.C. 605(b).
Paperwork Reduction Act
The regulations adopted herein do not contain information
collection requirements within the meaning of the Paperwork Reduction
Act, 44 U.S.C. 3501-3520.
Administrative Procedure Act
The indemnification policy is published in final form without the
opportunity for public notice and comment because it is a general
statement of policy relating to FTC management and personnel. See 5
U.S.C. 553(a)(2),(b).
List of Subjects in 16 CFR Part 1
Administrative practice and procedure, Government employees,
Indemnity payments.
For the reasons set forth in the preamble, the Federal Trade
Commission amends part 1, title 16, of the Code of Federal Regulations,
as follows:
PART 1--GENERAL PROCEDURES
0
1. The authority citation for part 1 continues to read as follows:
Authority: Sec. 6, 38 Stat. 721 (15 U.S.C. 46), unless
otherwise noted.
Sec. Sec. 1.125 through 1.129 [Added and Reserved]
0
2. In subpart Q, add and reserve Sec. Sec. 1.125 through 1.129.
0
3. Add subpart R to read as follows:
Subpart R--Policy With Regard to Indemnification of FTC Employees
Authority: 15 U.S.C. 46.
Sec. 1.130 Policy on employee indemnification.
(a) The Commission may indemnify, in whole or in part, its
employees (which for the purpose of this regulation includes former
employees) for any verdict, judgment, or other monetary award which is
rendered against any such employee, provided that the conduct giving
rise to the verdict, judgment, or award was taken within the scope of
his or her employment with the Federal Trade Commission and that such
indemnification is in the interest of the Federal Trade Commission, as
determined as a matter of discretion by the Commission, or its
designee.
(b) The Commission may settle or compromise a personal damage claim
against its employee by the payment of available funds, at any time,
provided the alleged conduct giving rise to the personal damage claim
was taken within the scope of employment and that such settlement or
compromise is in the interest of the Federal Trade Commission, as
determined as a matter of discretion by the Commission, or its
designee.
[[Page 30967]]
(c) Absent exceptional circumstances, as determined by the
Commission or its designee, the Commission will not entertain a request
either to agree to indemnify or to settle a personal damage claim
before entry of an adverse verdict, judgment, or monetary award.
(d) When an employee of the Federal Trade Commission becomes aware
that an action may be or has been filed against the employee in his or
her individual capacity as a result of conduct taken within the scope
of his or her employment, the employee shall immediately notify his or
her supervisor that such an action is pending or threatened. The
supervisor shall promptly thereafter notify the Office of the General
Counsel. Employees may be authorized to receive legal representation by
the Department of Justice in accordance with 28 CFR 50.15.
(e)(1) The employee may, thereafter, request either:
(i) Indemnification to satisfy a verdict, judgment or award entered
against the employee; or
(ii) Payment to satisfy the requirements of a settlement proposal.
(2) The employee shall submit a written request, with documentation
including copies of the verdict, judgment, award, or settlement
proposal, as appropriate, to the head of his or her division or office,
who thereupon shall submit to the General Counsel, in a timely manner,
a recommended disposition of the request. The General Counsel may also
seek the views of the Department of Justice. The failure of an employee
to provide notification under paragraph (d) of this section or make a
request under this paragraph (e) shall not impair the agency's ability
to provide indemnification or payment under this section if it
determines it is appropriate to do so.
(f) Any amount paid under this section either to indemnify a
Federal Trade Commission employee or to settle a personal damage claim
shall be contingent upon the availability of appropriated funds of the
Federal Trade Commission.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2017-14008 Filed 7-3-17; 8:45 am]
BILLING CODE 6750-01-P
