[Federal Register Volume 86, Number 241 (Monday, December 20, 2021)]
[Proposed Rules]
[Pages 71863-71864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27479]


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NATIONAL FOUNDATION ON THE ARTS AND HUMANITIES

National Endowment for the Humanities

45 CFR Part 1173

RIN 3136-AA45


Indemnification of Employees

AGENCY: National Endowment for the Humanities, National Foundation on 
the Arts and the Humanities.

ACTION: Proposed rule with request for comments.

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SUMMARY: The National Endowment for the Humanities (NEH) is proposing 
to publish a policy that permits indemnification of NEH employees in 
appropriate circumstances, as determined by the Chairperson of NEH or 
the Chairperson's designee, for claims made against NEH employees as a 
result of actions taken by them in the scope of their employment.

DATES: Send comments on or before January 19, 2022.

ADDRESSES: You may send comments by email to [email protected].
    Instructions: Include ``3136-AA44'' in the subject line of the 
email.

FOR FURTHER INFORMATION CONTACT: Elizabeth Voyatzis, Deputy General 
Counsel, Office of the General Counsel, National Endowment for the 
Humanities, 400 7th Street SW, Room 4060, Washington, DC 20506; (202) 
606-8322; [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Federal courts have upheld the authority of a Federal agency to 
establish procedures governing the production of records and testimony 
by personnel in legal proceedings in which the agency is not a party. 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). This 
proposed rule would establish policies and procedures that the agency 
will follow when, in a legal proceeding, a current or former NEH 
employee receives a demand or request to testify as to facts or events 
that relate to his or her official duties or the functions of NEH or to 
produce official records and information.
    This proposed rule relates to testimony and the production of 
records only in connection with legal proceedings to which the United 
States is not a party. It would not apply to requests under the Freedom 
of Information Act, 5 U.S.C. 552, or the Privacy Act of 1974, 5 U.S.C. 
552a; Congressional demands or requests for testimony or records; or 
legal proceedings to which the United States is a party.

Request for Comments

    NEH requests comments, which NEH must receive at the above address, 
by the above date.

Executive Order 12866, Regulatory Planning and Review, and Executive 
Order 13563, Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget for 
review.

Executive Order 13132, Federalism

    This rulemaking does not have federalism implications. It will 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.

Executive Order 12988, Civil Justice Reform

    This rulemaking meets the applicable standards set forth in section 
3(a) and 3(b)(2) of Executive Order 12988. Specifically, this 
rulemaking is written in clear language designed to help reduce 
litigation.

Executive Order 13175, Indian Tribal Governments

    Under the criteria in Executive Order 13175, NEH evaluated this 
rulemaking and determined that it will not have any potential effects 
on Federally recognized Indian Tribes.

Executive Order 12630, Takings

    Under the criteria in Executive Order 12630, this rulemaking does 
not have significant takings implications. Therefore, a takings 
implication assessment is not required.

Regulatory Flexibility Act of 1980

    This rulemaking will not have a significant adverse impact on a 
substantial number of small entities, including small businesses, small 
governmental jurisdictions, or certain small not-for-profit 
organizations.

Paperwork Reduction Act of 1995

    This rulemaking does not impose an information collection burden 
under the Paperwork Reduction Act. This action contains no provisions 
constituting a collection of information pursuant to the Paperwork 
Reduction Act.

Unfunded Mandates Reform Act of 1995

    This rulemaking does not contain a Federal mandate that will 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.

National Environmental Policy Act of 1969

    This rulemaking will not have a significant effect on the human 
environment.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rulemaking will not be a major rule as defined in section 804 
of the Small Business Regulatory Enforcement Fairness Act of 1996. This 
rulemaking will not result in an annual effect on the economy of $100 
million or more, a major increase in costs or prices, significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of United States-based companies to compete 
with foreign-based companies in domestic and export markets.

E-Government Act of 2002

    All information about NEH required to be published in the Federal 
Register may be accessed at www.neh.gov. The website 
www.regulations.gov contains electronic dockets for NEH's rulemakings 
under the Administrative Procedure Act of 1946.

Plain Writing Act of 2010

    To ensure this proposed rule speaks in plain and clear language so 
that the public can use and understand it, NEH modeled the language of 
the proposed rule on the Federal Plain Language Guidelines.

List of Subjects in 45 CFR Part 1173

    Administrative practice and procedure.

    For the reasons set forth in the preamble, the National Endowment 
for the Humanities proposes to amend 45 CFR chapter XI by adding part 
1173,

[[Page 71864]]

consisting of Sec. Sec.  1173.1 and 1173.2, to read as follows:

PART 1173--INDEMNIFICATION OF EMPLOYEES

    Authority:  5 U.S.C. 301.


Sec.  1173.1   Policy on employee indemnification.

    (a) This part explains when the National Endowment for the 
Humanities (NEH) will indemnify you, an employee or a former employee 
of NEH, against a verdict, judgment, or other monetary award that a 
court or other competent authority renders against you. When NEH 
indemnifies you against a verdict, judgment, or other monetary award, 
it means that NEH will pay the amounts that the court orders you to 
pay.
    (b) This part also explains when NEH will settle a claim (also 
referred to as compromising a claim) that someone brings or threatens 
to bring against you in court or before another competent authority. It 
is only in exceptional circumstances that NEH will agree to settle a 
claim before a court or other competent authority has entered a 
verdict, judgment, or monetary award against you.
    (c) In order for NEH to indemnify you or settle a claim:
    (1) The verdict, judgment, or monetary award to be paid or the 
claim to be settled must relate to something that you did (or failed to 
do) within the scope of your employment with NEH; and
    (2) The Chairperson of NEH or someone the Chairperson designates 
(the Agency Official) must determine, as a matter of discretion, that 
indemnifying you or settling the claim would be in the interest of NEH.
    (d) If you become aware that someone has made or may make a claim 
against you personally as a result of something that you did (or failed 
to do) within the scope of your employment, you must immediately notify 
the Office of the General Counsel.
    (e) To request that NEH indemnify you or settle a claim against 
you, you must submit a written request to the Office of the General 
Counsel. You must include a copy of the verdict, judgment, monetary 
award, or settlement proposal, as appropriate. The Office of the 
General Counsel may consult about the matter with your supervisor, 
other agency employees, and the Department of Justice.
    (f) The Agency Official may waive the requirements of paragraphs 
(d) and (e) of this section if it would be in the interest of NEH to do 
so.
    (g) If the Agency Official determines that NEH will indemnify you 
or settle a claim on your behalf, NEH's commitment will be subject to 
the availability of appropriated funds. The Agency Official may impose 
other conditions or limitations on the determination at his or her 
discretion.
    (h) If the Chairperson requests indemnification or settlement of a 
claim, the General Counsel will perform the functions assigned to the 
Chairperson under this section with respect to that request.


Sec.  1173.2  [Reserved]

    Dated: December 15, 2021.
Samuel Roth,
Attorney-Advisor, National Endowment for the Humanities.
[FR Doc. 2021-27479 Filed 12-17-21; 8:45 am]
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