Employee Indemnification Regulations, 54626-54629 [2022-19322]
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54626
Federal Register / Vol. 87, No. 172 / Wednesday, September 7, 2022 / Rules and Regulations
V. Determination of Safety for U.S.
Population, Infants and Children
Based on the Agency’s assessment,
EPA concludes that there is reasonable
certainty that no harm will result to the
U.S. population, including infants and
children, from aggregate exposure to
residues of thymol. Therefore, the
establishment of an exemption from the
requirement of a tolerance for residues
of thymol (5-methyl-2-isopropyl-1phenol) in or on all food commodities
when used in accordance with good
agricultural practices is safe under
FFDCA section 408.
VI. Other Considerations
Analytical Enforcement Methodology
An analytical method is not required
for enforcement purposes since the
Agency is establishing an exemption
from the requirement of a tolerance
without any numerical limitation.
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VII. Conclusion
Therefore, an exemption from the
requirement of a tolerance is established
for residues of thymol (5-methyl-2isopropyl-1-phenol) in or on all food
commodities when used in accordance
with good agricultural practices.
In addition, as a housekeeping
measure, EPA is removing time-limited
exemptions from the requirement of a
tolerance for residues of thymol on
honey and honeycomb in connection
with use of the pesticide under section
18 emergency exemptions granted by
the EPA. These exemptions expired on
June 30, 2007.
VIII. Statutory and Executive Order
Reviews
This action establishes an exemption
from the requirement of a tolerance
under FFDCA section 408(d) in
response to a petition submitted to the
Agency. The Office of Management and
Budget (OMB) has exempted these types
of actions from review under Executive
Order 12866, entitled ‘‘Regulatory
Planning and Review’’ (58 FR 51735,
October 4, 1993). Because this action
has been exempted from review under
Executive Order 12866, this action is
not subject to Executive Order 13211,
entitled ‘‘Actions Concerning
Regulations That Significantly Affect
Energy Supply, Distribution, or Use’’ (66
FR 28355, May 22, 2001), or Executive
Order 13045, entitled ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997). This action does not
contain any information collections
subject to OMB approval under the
Paperwork Reduction Act (PRA), 44
U.S.C. 3501 et seq., nor does it require
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any special considerations under
Executive Order 12898, entitled
‘‘Federal Actions to Address
Environmental Justice in Minority
Populations and Low-Income
Populations’’ (59 FR 7629, February 16,
1994).
Since tolerances and exemptions that
are established on the basis of a petition
under FFDCA section 408(d), such as
the tolerance exemption in this final
rule, do not require the issuance of a
proposed rule, the requirements of the
Regulatory Flexibility Act (RFA) (5
U.S.C. 601 et seq.), do not apply. This
action directly regulates growers, food
processors, food handlers, and food
retailers, not States or Tribes, nor does
this action alter the relationships or
distribution of power and
responsibilities established by Congress
in the preemption provisions of FFDCA
section 408(n)(4). As such, the Agency
has determined that this action will not
have a substantial direct effect on States
or Tribal Governments, on the
relationship between the National
Government and the States or Tribal
Governments, or on the distribution of
power and responsibilities among the
various levels of government or between
the Federal Government and Indian
Tribes. Thus, the Agency has
determined that Executive Order 13132,
entitled ‘‘Federalism’’ (64 FR 43255,
August 10, 1999), and Executive Order
13175, entitled ‘‘Consultation and
Coordination with Indian Tribal
Governments’’ (65 FR 67249, November
9, 2000), do not apply to this action. In
addition, this action does not impose
any enforceable duty or contain any
unfunded mandate as described under
Title II of the Unfunded Mandates
Reform Act (UMRA) (2 U.S.C. 1501 et
seq.).
This action does not involve any
technical standards that would require
Agency consideration of voluntary
consensus standards pursuant to section
12(d) of the National Technology
Transfer and Advancement Act
(NTTAA) (15 U.S.C. 272 note).
IX. Congressional Review Act
Pursuant to the Congressional Review
Act (5 U.S.C. 801 et seq.), EPA will
submit a report containing this rule and
other required information to the U.S.
Senate, the U.S. House of
Representatives, and the Comptroller
General of the United States prior to
publication of the rule in the Federal
Register. This action is not a ‘‘major
rule’’ as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 180
Environmental protection,
Administrative practice and procedure,
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Agricultural commodities, Pesticides
and pests, Reporting and recordkeeping
requirements.
Dated: September 1, 2022.
Charles Smith,
Director, Biopesticides and Pollution
Prevention Division, Office of Pesticide
Programs.
Therefore, for the reasons stated in the
preamble, EPA is amending 40 CFR
chapter I as follows:
PART 180—TOLERANCES AND
EXEMPTIONS FOR PESTICIDE
CHEMICAL RESIDUES IN FOOD
1. The authority citation for part 180
continues to read as follows:
■
Authority: 21 U.S.C. 321(q), 346a and 371.
2. Amend § 180.1240 by revising
paragraph (a) to read as follows:
■
§ 180.1240 Thymol; exemption from the
requirement of a tolerance.
(a) An exemption from the
requirement of a tolerance is established
for thymol (5-methyl-2-isopropyl-1phenol) in or on all food commodities
when used in accordance with good
agricultural practices.
*
*
*
*
*
[FR Doc. 2022–19294 Filed 9–6–22; 8:45 am]
BILLING CODE 6560–50–P
CORPORATION FOR NATIONAL AND
COMMUNITY SERVICE
45 CFR Part 2502
RIN 3045–AA77
Employee Indemnification Regulations
Corporation for National and
Community Service.
ACTION: Final rule.
AGENCY:
The Corporation for National
and Community Service (operating as
AmeriCorps), is finalizing regulations to
indemnify AmeriCorps employees who,
because of conduct taken within the
scope of employment with AmeriCorps,
have a verdict, judgment, monetary
award, or personal damages claim
issued against them that is not
otherwise covered by the Federal Tort
Claims Act. These regulations set out
how AmeriCorps employees may
request indemnification or settlement of
a claim and the circumstances in which
AmeriCorps may approve
indemnification or settlement of a
claim.
SUMMARY:
DATES:
Effective November 7, 2022.
FOR FURTHER INFORMATION CONTACT:
Kiara Rhodes, Associate General
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Counsel, Corporation for National and
Community Service, 250 E Street SW,
Washington, DC 20525,
PublicComments@cns.gov, 202–606–
6709.
SUPPLEMENTARY INFORMATION:
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I. Background
This rule addresses indemnification
of AmeriCorps employees in
circumstances not covered by the
Federal Employee Liability Reform and
Tort Compensation Act of 1988
(FELRTCA), 28 U.S.C. 2679(b)(1), or the
Federal Tort Claims Act (FTCA), 28
U.S.C. 1346(b). FELRTCA provides that,
with certain exceptions, the FTCA is the
exclusive remedy for injuries caused by
a Federal employee acting in the scope
of employment, such that the United
States must be substituted as the
defendant and the claim must proceed
against the Government under the
FTCA. See 28 U.S.C. 2679(b)(1). The
exceptions, for which substitution is not
available, are claims brought for a
violation of the Constitution and claims
authorized by and brought for a
violation of a Federal statute. See 28
U.S.C. 2679(b)(2). In these claims, the
individual is sued in their personal
capacity. For instance, lawsuits against
Federal employees in their personal
capacities for alleged constitutional
violations are available under certain
circumstances since the Supreme
Court’s decision in Bivens v. Six
Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388
(1971). The Bivens decision was the first
time that the Supreme Court recognized
an implied cause of action directly
under the Constitution for personalcapacity claims for alleged
constitutional violations. In rare
circumstances, even a State or common
law claim might be brought against a
Federal employee for whom the United
States has formally substituted itself,
but for which a court rejected
substitution, and in these cases too, the
individual could be liable in their
personal capacity.
AmeriCorps believes that actions
against its employees in their personal
capacities and the potential for a
judgment against agency employees may
hinder the agency’s effectiveness in
meeting its mission. AmeriCorps
employees’ ability to carry out functions
related to volunteer management and
grant-making depends on the
willingness of the employees to make
decisions and take actions that may
expose them to liability. Uncertainty
regarding the potential for a personal
liability claim resulting in monetary
judgment may intimidate employees,
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stifle creativity and initiative, and limit
decisive action. The threat of personal
liability for a decision made or action
taken as part of official duties can
adversely affect AmeriCorps’
achievement of its mission. The
adoption of these regulations permitting
indemnification would afford
AmeriCorps employees the same
protection given to Federal employees
in several other government agencies,
including the Federal Trade
Commission, 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.
This final rule would address these
situations when an AmeriCorps
employee is sued in their personal
capacity for conduct performed in the
scope of their employment, by
providing the process for AmeriCorps
employees to request indemnification or
settlement of a claim and the
circumstances in which AmeriCorps
may approve indemnification or
settlement of a claim.
II. Development of This Rule
AmeriCorps proposed this rule on
May 26, 2022. See 87 FR 31967.
AmeriCorps received one comment
during the public comment period.
First, the commenter stated that the rule
would create a lack of access to justice.
Response: The rule has no effect on
any person’s access to justice. Nothing
in the rule would prevent or deter an
individual from raising a claim against
a current or former AmeriCorps
employee or from obtaining a judgment
against them.
The commenter also stated that a
focus should be on preventing
employees from overstepping their
bounds rather than indemnifying them,
and that the rule would embolden
federal employees in committing
injustices because they will be
indemnified and undermine public
trust.
Response: The rule does not provide
employees with the ability or authority
to act illegally or outside the scope of
their employment. Federal employees
face a number of consequences,
including but not limited to termination
and other legal action, that prevent them
from ‘‘overstepping their bounds’’ and
committing injustices. Neither does the
rule guarantee indemnification of
employees; rather, it establishes a
process for employees and former
employees to seek indemnification for
claims against them personally for
conduct giving rise to the claims that
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54627
was taken within the scope of their
employment with AmeriCorps. The
ultimate decision as to whether
indemnification is appropriate is left to
the AmeriCorps Chief Executive Officer.
Finally, the commenter states that the
rule is extremely broad in that it would
indemnify former employees and allow
AmeriCorps to decide whether to
indemnify in its sole discretion.
Inclusion of former AmeriCorps
employees in the rule is necessary
because a lawsuit may be brought
against an individual related to actions
conducted in the scope of their
employment with AmeriCorps, even
though AmeriCorps may no longer
employ that individual. The final rule
therefore continues to include former
employees in its scope. The final rule
also includes the provision stating that
AmeriCorps will decide in its sole
discretion whether to indemnify an
individual. This provision is not overly
broad because it includes criteria upon
which AmeriCorps will base this
decision (namely, that the AmeriCorps
employee’s conduct giving rise to the
verdict, judgment, monetary award, or
claim was taken within the scope of
their employment; that the
indemnification or settlement is in
AmeriCorps’ best interest; and that
appropriated funds are available for the
indemnification or settlement). See
§ 2502.40. It is appropriate for
AmeriCorps’ determination as to
whether these criteria are met to be
within AmeriCorps’ sole discretion
because determination of whether the
indemnification is in the agency’s best
interest is subjective and therefore
necessarily non-reviewable.
AmeriCorps did not make any edits to
the proposed rule as a result of the
comment.
III. Scope and Summary of the Final
Rule
The rule would allow AmeriCorps to
indemnify a present or former
AmeriCorps employee who is
personally named as a defendant in a
legal proceeding for conduct arising
within the scope of their employment
when the FTCA does not apply because
(1) the claim alleges the conduct is a
violation of the Constitution; or (2) the
claim alleges a violation of a Federal
statute that authorizes the claim; or (3)
the claim is brought under State or
common law against a Federal employee
for whom the United States has formally
substituted itself, but for which a court
rejected substitution. The regulations
would permit AmeriCorps to indemnify
an Agency employee who suffers an
adverse verdict, judgment, or other
monetary award, provided that the
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actions giving rise to the judgment were
taken within the scope of employment,
and that AmeriCorps determines that
the indemnification is in its interest.
The regulations would also allow
AmeriCorps to settle a claim brought
against an employee in their individual
capacity by the payment of funds, upon
a similar determination. Generally,
AmeriCorps will not entertain a request
to indemnify a personal damage claim
against an employee before entry of an
adverse verdict, judgment, or monetary
award. However, in certain cases,
AmeriCorps may determine that
exceptional circumstances justify the
earlier indemnification or payment of a
settlement amount. The rule would
provide procedures for present or
former AmeriCorps employees to follow
if they are personally named in these
types of lawsuits and wish to be
indemnified, and also would provide
procedures for AmeriCorps’ review of
requests for indemnification.
IV. Regulatory Analyses
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A. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. The Office of Information
and Regulatory Affairs in the Office of
Management and Budget has
determined that this is not a significant
regulatory action.
B. Congressional Review Act (Small
Business Regulatory Enforcement
Fairness Act of 1996, Title II, Subtitle E)
As required by the Congressional
Review Act (5 U.S.C. 801–808) before an
interim or final rule takes effect,
AmeriCorps will submit for an interim
or final rule a report to each chamber of
the Congress and to the Comptroller
General of the United States. A major
rule cannot take effect until 60 days
after it is published in the Federal
Register. The Office of Information and
Regulatory Affairs in the Office of
Management and Budget anticipates
that this will not be a major rule under
5 U.S.C. 804 because this rule will not
result in (1) an annual effect on the
economy of $100 million or more; (2) a
major increase in costs or prices for
consumers, individual industries,
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Federal, state, or local government
agencies, or geographic regions; or (3)
significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreignbased enterprises in domestic and
export markets.
C. Regulatory Flexibility Act
As required by the Regulatory
Flexibility Act of 1980 (5 U.S.C. 601 et
seq.), AmeriCorps certifies that this rule
will not have a significant economic
impact on a substantial number of small
entities. Therefore, AmeriCorps has not
performed the initial regulatory
flexibility analysis that is required
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.) for rules that are
expected to have such results.
D. Unfunded Mandates Reform Act of
1995
For purposes of Title II of the
Unfunded Mandates Reform Act of
1995, 2 U.S.C. 1531–1538, as well as
Executive Order 12875, this regulatory
action does not contain any Federal
mandate that may result in increased
expenditures in either Federal, State,
local, or Tribal governments in the
aggregate, or impose an annual burden
exceeding $100 million on the private
sector.
E. Paperwork Reduction Act (PRA)
Under the PRA, an agency may not
conduct or sponsor a collection of
information unless the collections of
information display valid control
numbers. This rule does not contain
information collection requirements
within the meaning of the Paperwork
Reduction Act, 44 U.S.C. 3501–3520.
F. Executive Order 13132, Federalism
Executive Order 13132, Federalism,
prohibits an agency from publishing any
rule that has federalism implications if
the rule imposes substantial direct
compliance costs on State and local
governments and is not required by
statute, or the rule preempts State law,
unless the agency meets the
consultation and funding requirements
of section 6 of the Executive order. This
rule does not have any federalism
implications, as described above.
G. Takings (E.O. 12630)
This rule does not affect a taking of
private property or otherwise have
taking implications under Executive
Order 12630 because this rule does not
affect individual property rights
protected by the Fifth Amendment or
involve a compensable ‘‘taking.’’ A
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takings implication assessment is not
required.
H. Civil Justice Reform (E.O. 12988)
This rule complies with the
requirements of Executive Order 12988.
Specifically, this rule: (a) meets the
criteria of section 3(a) requiring that all
regulations be reviewed to eliminate
errors and ambiguity and be written to
minimize litigation; and (b) meets the
criteria of section 3(b)(2) requiring that
all regulations be written in clear
language and contain clear legal
standards.
I. Consultation With Indian Tribes (E.O.
13175)
AmeriCorps recognizes the inherent
sovereignty of Indian Tribes and their
right to self-governance. We have
evaluated this rule under the
AmeriCorps consultation policy and the
criteria in E.O. 13175 and determined
that this rule does not impose
substantial direct effects on federally
recognized Tribes.
List of Subjects in 45 CFR Part 2502
Administrative practice and
procedure, Government employees,
Indemnity payments.
For the reasons discussed in the
preamble, under the authority of 42
U.S.C. 12651c(c), the Corporation for
National and Community Service
amends chapter XXV of title 45 of the
Code of Federal Regulations by adding
part 2502 to read as follows:
PART 2502—EMPLOYEE
INDEMNIFICATION REGULATIONS
Sec.
2502.10 Purpose.
2502.20 Applicability.
2502.30 Definitions.
2502.40 Under what circumstances may
AmeriCorps indemnify employees?
2502.50 At what point in a legal proceeding
will AmeriCorps consider a request to
indemnify the employee?
2502.60 What types of legal proceedings
may an AmeriCorps employee seek
indemnification or settlement for?
2502.70 What must an AmeriCorps
employee do if served with process or
pleadings in a legal proceeding?
2502.80 What may the General Counsel do
upon receipt of the process and
pleadings and report of circumstances?
2502.90 How may an AmeriCorps employee
request indemnification?
2502.100 How will AmeriCorps handle the
request for indemnification?
Authority: 28 U.S.C. 2679(b)(1); 42 U.S.C.
12651c(c).
§ 2502.10
Purpose.
The purpose of this part is to provide
the procedures for indemnification of
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AmeriCorps employees who are
personally named in certain legal
proceedings not covered by the Federal
Tort Claims Act (FTCA) or the Federal
Employee Liability Reform and Tort
Compensation Act (FELRTCA) when
AmeriCorps determines both that the
actions arose within the scope of their
AmeriCorps employment and that
indemnification is in the agency’s
interest. These determinations are
matters of agency discretion.
§ 2502.20
Applicability.
(a) This part is applicable to all former
and current AmeriCorps employees,
including special Government
employees.
(b) This part does not apply to
volunteers, service members,
contractors, or any other individuals
who may be affiliated with AmeriCorps,
but not employed by the agency.
§ 2502.30
Definitions.
AmeriCorps means the Corporation
for National and Community Service.
AmeriCorps employee means a
current or former employee of the
Corporation for National and
Community Service, regardless of
whether the individual was an
employee before the Corporation for
National and Community Service began
operating under the name AmeriCorps.
CEO means the AmeriCorps Chief
Executive Officer or their designee.
Covered claim means a claim seeking
damages against an employee personally
(or against their estate) for personal
injury, death, or loss of property,
resulting from the employee’s activities,
when AmeriCorps determines both that
the actions arose within the scope of
their office or employment but are not
covered by the Federal Tort Claims Act
(FTCA) or the Federal Employee
Liability Reform and Tort Compensation
Act (FELRTCA).
General Counsel means the
AmeriCorps General Counsel or their
designee.
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§ 2502.40 Under what circumstances may
AmeriCorps indemnify employees?
AmeriCorps may, at its sole
discretion, indemnify an AmeriCorps
employee for a verdict, judgment, or
other monetary award rendered against
the employee personally in a claim or
may settle or compromise a personal
damages claim against an AmeriCorps
employee if:
(a) The CEO determines that the
AmeriCorps employee’s conduct giving
rise to the verdict, judgment, monetary
award, or claim was taken within the
scope of their employment;
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(b) The CEO determines that the
indemnification or settlement is in
AmeriCorps’ best interest; and
(c) AmeriCorps appropriated funds
are available for the indemnification or
settlement.
§ 2502.50 At what point in a legal
proceeding will AmeriCorps consider a
request to indemnify the employee?
(a) AmeriCorps may settle or
compromise a claim against an
AmeriCorps employee at any time.
(b) Unless there are exceptional
circumstances, as determined by the
CEO, AmeriCorps will not consider a
request to indemnify a claim before
entry of an adverse verdict, judgment, or
award.
§ 2502.60 What types of legal proceedings
may an AmeriCorps employee seek
indemnification or settlement for?
An AmeriCorps employee may seek
indemnification or settlement in any
civil action or proceeding brought, in
any court, for a covered claim.
§ 2502.70 What must an AmeriCorps
employee do if served with process or
pleadings that includes a covered claim?
An AmeriCorps employee who is
named as a defendant (or the personal
representative of the AmeriCorps
employee’s estate) in a legal proceeding
that includes a covered claim and who
wishes to seek indemnification must
promptly notify their supervisor, who
then promptly notifies the Office of
General Counsel. Former employees
must directly notify the Office of
General Counsel.
§ 2502.100 How will AmeriCorps handle
the request for indemnification?
(a) The head of the office or their
designee will review the employee’s
request and submit all of the following
to the General Counsel:
(1) The original or a copy of the
employee’s request.
(2) A recommendation to approve or
deny the request.
(3) A detailed analysis of the basis for
a recommendation.
(4) A certification from the Chief
Financial Officer as to whether the
agency has funds available to pay the
indemnification.
(b) The General Counsel will:
(1) Review the circumstances of the
incident that gave rise to the action or
proceeding, and all data relevant to the
question of whether the employee was
acting within the scope of their
employment.
(2) Where appropriate, seek the views
of the U.S. Department of Justice and/
or the U.S. Attorney for the district
encompassing the location where the
action or proceeding is brought.
(3) Prepare a recommendation to
approve or deny the request.
(4) Forward the request, the
accompanying documentation, and the
General Counsel’s recommendation to
the CEO for a decision.
Dated: August 22, 2022.
Fernando Laguarda,
General Counsel.
[FR Doc. 2022–19322 Filed 9–6–22; 8:45 am]
BILLING CODE 6050–28–P
§ 2502.80 What may the General Counsel
do upon receipt of the process and
pleadings and report of circumstances?
FEDERAL COMMUNICATIONS
COMMISSION
Where appropriate, the General
Counsel may request that the
Department of Justice provide legal
representation for the AmeriCorps
employee.
47 CFR Part 79
§ 2502.90 How may an AmeriCorps
employee request indemnification?
To request indemnification for a
verdict, judgment, award, or settlement
proposal of a covered claim, the
AmeriCorps employee must:
(a) Have complied with the
requirements of § 2502.70.
(b) Submit a written request, via their
supervisor, to the head of the
employee’s office, or (in the case a
former employee) directly to the Office
of General Counsel. The written request
must include appropriate
documentation, including copies of the
verdict, judgment, award, or settlement
proposal.
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[CG Docket No. 05–231; FCC 14–12 and
FCC 16–17; FR ID 103115]
Closed Captioning of Video
Programming; Telecommunications for
the Deaf and Hard of Hearing, Inc.,
Petition for Rulemaking; Corrections
Federal Communications
Commission.
ACTION: Correcting amendments.
AGENCY:
This document corrects the
final rules portion of Federal Register
documents published on March 31,
2014, and August 23, 2016. These
Federal Register documents
inadvertently listed several erroneous
cross-references and a typographical
error. This document corrects the final
regulation.
DATES: Effective September 7, 2022.
SUMMARY:
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]]>Agencies
[Federal Register Volume 87, Number 172 (Wednesday, September 7, 2022)]
[Rules and Regulations]
[Pages 54626-54629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19322]
=======================================================================
-----------------------------------------------------------------------
CORPORATION FOR NATIONAL AND COMMUNITY SERVICE
45 CFR Part 2502
RIN 3045-AA77
Employee Indemnification Regulations
AGENCY: Corporation for National and Community Service.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Corporation for National and Community Service (operating
as AmeriCorps), is finalizing regulations to indemnify AmeriCorps
employees who, because of conduct taken within the scope of employment
with AmeriCorps, have a verdict, judgment, monetary award, or personal
damages claim issued against them that is not otherwise covered by the
Federal Tort Claims Act. These regulations set out how AmeriCorps
employees may request indemnification or settlement of a claim and the
circumstances in which AmeriCorps may approve indemnification or
settlement of a claim.
DATES: Effective November 7, 2022.
FOR FURTHER INFORMATION CONTACT: Kiara Rhodes, Associate General
[[Page 54627]]
Counsel, Corporation for National and Community Service, 250 E Street
SW, Washington, DC 20525, [email protected], 202-606-6709.
SUPPLEMENTARY INFORMATION:
I. Background
This rule addresses indemnification of AmeriCorps employees in
circumstances not covered by the Federal Employee Liability Reform and
Tort Compensation Act of 1988 (FELRTCA), 28 U.S.C. 2679(b)(1), or the
Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b). FELRTCA provides
that, with certain exceptions, the FTCA is the exclusive remedy for
injuries caused by a Federal employee acting in the scope of
employment, such that the United States must be substituted as the
defendant and the claim must proceed against the Government under the
FTCA. See 28 U.S.C. 2679(b)(1). The exceptions, for which substitution
is not available, are claims brought for a violation of the
Constitution and claims authorized by and brought for a violation of a
Federal statute. See 28 U.S.C. 2679(b)(2). In these claims, the
individual is sued in their personal capacity. For instance, lawsuits
against Federal employees in their personal capacities for alleged
constitutional violations are available under certain circumstances
since the Supreme Court's decision in Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The
Bivens decision was the first time that the Supreme Court recognized an
implied cause of action directly under the Constitution for personal-
capacity claims for alleged constitutional violations. In rare
circumstances, even a State or common law claim might be brought
against a Federal employee for whom the United States has formally
substituted itself, but for which a court rejected substitution, and in
these cases too, the individual could be liable in their personal
capacity.
AmeriCorps believes that actions against its employees in their
personal capacities and the potential for a judgment against agency
employees may hinder the agency's effectiveness in meeting its mission.
AmeriCorps employees' ability to carry out functions related to
volunteer management and grant-making depends on the willingness of the
employees to make decisions and take actions that may expose them to
liability. Uncertainty regarding the potential for a personal liability
claim resulting in monetary judgment may intimidate employees, stifle
creativity and initiative, and limit decisive action. The threat of
personal liability for a decision made or action taken as part of
official duties can adversely affect AmeriCorps' achievement of its
mission. The adoption of these regulations permitting indemnification
would afford AmeriCorps employees the same protection given to Federal
employees in several other government agencies, including the Federal
Trade Commission, 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.
This final rule would address these situations when an AmeriCorps
employee is sued in their personal capacity for conduct performed in
the scope of their employment, by providing the process for AmeriCorps
employees to request indemnification or settlement of a claim and the
circumstances in which AmeriCorps may approve indemnification or
settlement of a claim.
II. Development of This Rule
AmeriCorps proposed this rule on May 26, 2022. See 87 FR 31967.
AmeriCorps received one comment during the public comment period.
First, the commenter stated that the rule would create a lack of access
to justice.
Response: The rule has no effect on any person's access to justice.
Nothing in the rule would prevent or deter an individual from raising a
claim against a current or former AmeriCorps employee or from obtaining
a judgment against them.
The commenter also stated that a focus should be on preventing
employees from overstepping their bounds rather than indemnifying them,
and that the rule would embolden federal employees in committing
injustices because they will be indemnified and undermine public trust.
Response: The rule does not provide employees with the ability or
authority to act illegally or outside the scope of their employment.
Federal employees face a number of consequences, including but not
limited to termination and other legal action, that prevent them from
``overstepping their bounds'' and committing injustices. Neither does
the rule guarantee indemnification of employees; rather, it establishes
a process for employees and former employees to seek indemnification
for claims against them personally for conduct giving rise to the
claims that was taken within the scope of their employment with
AmeriCorps. The ultimate decision as to whether indemnification is
appropriate is left to the AmeriCorps Chief Executive Officer.
Finally, the commenter states that the rule is extremely broad in
that it would indemnify former employees and allow AmeriCorps to decide
whether to indemnify in its sole discretion.
Inclusion of former AmeriCorps employees in the rule is necessary
because a lawsuit may be brought against an individual related to
actions conducted in the scope of their employment with AmeriCorps,
even though AmeriCorps may no longer employ that individual. The final
rule therefore continues to include former employees in its scope. The
final rule also includes the provision stating that AmeriCorps will
decide in its sole discretion whether to indemnify an individual. This
provision is not overly broad because it includes criteria upon which
AmeriCorps will base this decision (namely, that the AmeriCorps
employee's conduct giving rise to the verdict, judgment, monetary
award, or claim was taken within the scope of their employment; that
the indemnification or settlement is in AmeriCorps' best interest; and
that appropriated funds are available for the indemnification or
settlement). See Sec. 2502.40. It is appropriate for AmeriCorps'
determination as to whether these criteria are met to be within
AmeriCorps' sole discretion because determination of whether the
indemnification is in the agency's best interest is subjective and
therefore necessarily non-reviewable.
AmeriCorps did not make any edits to the proposed rule as a result
of the comment.
III. Scope and Summary of the Final Rule
The rule would allow AmeriCorps to indemnify a present or former
AmeriCorps employee who is personally named as a defendant in a legal
proceeding for conduct arising within the scope of their employment
when the FTCA does not apply because (1) the claim alleges the conduct
is a violation of the Constitution; or (2) the claim alleges a
violation of a Federal statute that authorizes the claim; or (3) the
claim is brought under State or common law against a Federal employee
for whom the United States has formally substituted itself, but for
which a court rejected substitution. The regulations would permit
AmeriCorps to indemnify an Agency employee who suffers an adverse
verdict, judgment, or other monetary award, provided that the
[[Page 54628]]
actions giving rise to the judgment were taken within the scope of
employment, and that AmeriCorps determines that the indemnification is
in its interest. The regulations would also allow AmeriCorps to settle
a claim brought against an employee in their individual capacity by the
payment of funds, upon a similar determination. Generally, AmeriCorps
will not entertain a request to indemnify a personal damage claim
against an employee before entry of an adverse verdict, judgment, or
monetary award. However, in certain cases, AmeriCorps may determine
that exceptional circumstances justify the earlier indemnification or
payment of a settlement amount. The rule would provide procedures for
present or former AmeriCorps employees to follow if they are personally
named in these types of lawsuits and wish to be indemnified, and also
would provide procedures for AmeriCorps' review of requests for
indemnification.
IV. Regulatory Analyses
A. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 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). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
The Office of Information and Regulatory Affairs in the Office of
Management and Budget has determined that this is not a significant
regulatory action.
B. Congressional Review Act (Small Business Regulatory Enforcement
Fairness Act of 1996, Title II, Subtitle E)
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, AmeriCorps will submit
for an interim or final rule a report to each chamber of the Congress
and to the Comptroller General of the United States. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. The Office of Information and Regulatory Affairs in the
Office of Management and Budget anticipates that this will not be a
major rule under 5 U.S.C. 804 because this rule will not result in (1)
an annual effect on the economy of $100 million or more; (2) a major
increase in costs or prices for consumers, individual industries,
Federal, state, or local government agencies, or geographic regions; or
(3) significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic and
export markets.
C. Regulatory Flexibility Act
As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 601
et seq.), AmeriCorps certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
Therefore, AmeriCorps has not performed the initial regulatory
flexibility analysis that is required under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.) for rules that are expected to have such
results.
D. Unfunded Mandates Reform Act of 1995
For purposes of Title II of the Unfunded Mandates Reform Act of
1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this
regulatory action does not contain any Federal mandate that may result
in increased expenditures in either Federal, State, local, or Tribal
governments in the aggregate, or impose an annual burden exceeding $100
million on the private sector.
E. Paperwork Reduction Act (PRA)
Under the PRA, an agency may not conduct or sponsor a collection of
information unless the collections of information display valid control
numbers. This rule does not contain information collection requirements
within the meaning of the Paperwork Reduction Act, 44 U.S.C. 3501-3520.
F. Executive Order 13132, Federalism
Executive Order 13132, Federalism, prohibits an agency from
publishing any rule that has federalism implications if the rule
imposes substantial direct compliance costs on State and local
governments and is not required by statute, or the rule preempts State
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive order. This rule does not have any
federalism implications, as described above.
G. Takings (E.O. 12630)
This rule does not affect a taking of private property or otherwise
have taking implications under Executive Order 12630 because this rule
does not affect individual property rights protected by the Fifth
Amendment or involve a compensable ``taking.'' A takings implication
assessment is not required.
H. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of Executive Order 12988.
Specifically, this rule: (a) meets the criteria of section 3(a)
requiring that all regulations be reviewed to eliminate errors and
ambiguity and be written to minimize litigation; and (b) meets the
criteria of section 3(b)(2) requiring that all regulations be written
in clear language and contain clear legal standards.
I. Consultation With Indian Tribes (E.O. 13175)
AmeriCorps recognizes the inherent sovereignty of Indian Tribes and
their right to self-governance. We have evaluated this rule under the
AmeriCorps consultation policy and the criteria in E.O. 13175 and
determined that this rule does not impose substantial direct effects on
federally recognized Tribes.
List of Subjects in 45 CFR Part 2502
Administrative practice and procedure, Government employees,
Indemnity payments.
For the reasons discussed in the preamble, under the authority of
42 U.S.C. 12651c(c), the Corporation for National and Community Service
amends chapter XXV of title 45 of the Code of Federal Regulations by
adding part 2502 to read as follows:
PART 2502--EMPLOYEE INDEMNIFICATION REGULATIONS
Sec.
2502.10 Purpose.
2502.20 Applicability.
2502.30 Definitions.
2502.40 Under what circumstances may AmeriCorps indemnify employees?
2502.50 At what point in a legal proceeding will AmeriCorps consider
a request to indemnify the employee?
2502.60 What types of legal proceedings may an AmeriCorps employee
seek indemnification or settlement for?
2502.70 What must an AmeriCorps employee do if served with process
or pleadings in a legal proceeding?
2502.80 What may the General Counsel do upon receipt of the process
and pleadings and report of circumstances?
2502.90 How may an AmeriCorps employee request indemnification?
2502.100 How will AmeriCorps handle the request for indemnification?
Authority: 28 U.S.C. 2679(b)(1); 42 U.S.C. 12651c(c).
Sec. 2502.10 Purpose.
The purpose of this part is to provide the procedures for
indemnification of
[[Page 54629]]
AmeriCorps employees who are personally named in certain legal
proceedings not covered by the Federal Tort Claims Act (FTCA) or the
Federal Employee Liability Reform and Tort Compensation Act (FELRTCA)
when AmeriCorps determines both that the actions arose within the scope
of their AmeriCorps employment and that indemnification is in the
agency's interest. These determinations are matters of agency
discretion.
Sec. 2502.20 Applicability.
(a) This part is applicable to all former and current AmeriCorps
employees, including special Government employees.
(b) This part does not apply to volunteers, service members,
contractors, or any other individuals who may be affiliated with
AmeriCorps, but not employed by the agency.
Sec. 2502.30 Definitions.
AmeriCorps means the Corporation for National and Community
Service.
AmeriCorps employee means a current or former employee of the
Corporation for National and Community Service, regardless of whether
the individual was an employee before the Corporation for National and
Community Service began operating under the name AmeriCorps.
CEO means the AmeriCorps Chief Executive Officer or their designee.
Covered claim means a claim seeking damages against an employee
personally (or against their estate) for personal injury, death, or
loss of property, resulting from the employee's activities, when
AmeriCorps determines both that the actions arose within the scope of
their office or employment but are not covered by the Federal Tort
Claims Act (FTCA) or the Federal Employee Liability Reform and Tort
Compensation Act (FELRTCA).
General Counsel means the AmeriCorps General Counsel or their
designee.
Sec. 2502.40 Under what circumstances may AmeriCorps indemnify
employees?
AmeriCorps may, at its sole discretion, indemnify an AmeriCorps
employee for a verdict, judgment, or other monetary award rendered
against the employee personally in a claim or may settle or compromise
a personal damages claim against an AmeriCorps employee if:
(a) The CEO determines that the AmeriCorps employee's conduct
giving rise to the verdict, judgment, monetary award, or claim was
taken within the scope of their employment;
(b) The CEO determines that the indemnification or settlement is in
AmeriCorps' best interest; and
(c) AmeriCorps appropriated funds are available for the
indemnification or settlement.
Sec. 2502.50 At what point in a legal proceeding will AmeriCorps
consider a request to indemnify the employee?
(a) AmeriCorps may settle or compromise a claim against an
AmeriCorps employee at any time.
(b) Unless there are exceptional circumstances, as determined by
the CEO, AmeriCorps will not consider a request to indemnify a claim
before entry of an adverse verdict, judgment, or award.
Sec. 2502.60 What types of legal proceedings may an AmeriCorps
employee seek indemnification or settlement for?
An AmeriCorps employee may seek indemnification or settlement in
any civil action or proceeding brought, in any court, for a covered
claim.
Sec. 2502.70 What must an AmeriCorps employee do if served with
process or pleadings that includes a covered claim?
An AmeriCorps employee who is named as a defendant (or the personal
representative of the AmeriCorps employee's estate) in a legal
proceeding that includes a covered claim and who wishes to seek
indemnification must promptly notify their supervisor, who then
promptly notifies the Office of General Counsel. Former employees must
directly notify the Office of General Counsel.
Sec. 2502.80 What may the General Counsel do upon receipt of the
process and pleadings and report of circumstances?
Where appropriate, the General Counsel may request that the
Department of Justice provide legal representation for the AmeriCorps
employee.
Sec. 2502.90 How may an AmeriCorps employee request indemnification?
To request indemnification for a verdict, judgment, award, or
settlement proposal of a covered claim, the AmeriCorps employee must:
(a) Have complied with the requirements of Sec. 2502.70.
(b) Submit a written request, via their supervisor, to the head of
the employee's office, or (in the case a former employee) directly to
the Office of General Counsel. The written request must include
appropriate documentation, including copies of the verdict, judgment,
award, or settlement proposal.
Sec. 2502.100 How will AmeriCorps handle the request for
indemnification?
(a) The head of the office or their designee will review the
employee's request and submit all of the following to the General
Counsel:
(1) The original or a copy of the employee's request.
(2) A recommendation to approve or deny the request.
(3) A detailed analysis of the basis for a recommendation.
(4) A certification from the Chief Financial Officer as to whether
the agency has funds available to pay the indemnification.
(b) The General Counsel will:
(1) Review the circumstances of the incident that gave rise to the
action or proceeding, and all data relevant to the question of whether
the employee was acting within the scope of their employment.
(2) Where appropriate, seek the views of the U.S. Department of
Justice and/or the U.S. Attorney for the district encompassing the
location where the action or proceeding is brought.
(3) Prepare a recommendation to approve or deny the request.
(4) Forward the request, the accompanying documentation, and the
General Counsel's recommendation to the CEO for a decision.
Dated: August 22, 2022.
Fernando Laguarda,
General Counsel.
[FR Doc. 2022-19322 Filed 9-6-22; 8:45 am]
BILLING CODE 6050-28-P
